The High Court has refused Mars Capital Finance Ireland DAC leave to issue execution of a 2017 Circuit Court possession order, finding that the evidence did not establish a written assignment of the mortgage and the right to benefit from that order.
The decision was made on appeal after the Circuit Court refused the application in February 2023. The High Court said the sole issue before it was whether Mars Capital should be allowed to issue execution. The earlier order granting possession to EBS Mortgage Finance was not under appeal.
Mars Capital had been substituted as plaintiff by a County Registrar’s order in September 2022. That order was not appealed. However, the High Court held that the substitution did not decide whether Mars Capital was entitled to execute the possession order. The court said it had to determine whether a change in entitlement since the order was made entitled Mars Capital to seek execution under Order 36, rule 10 of the Circuit Court Rules.
The possession order concerned an identified folio in County Wexford. The charge was registered in favour of EBS Building Society in 2010, and Mars Capital was registered as its owner in June 2021. The defendants accepted that Mars Capital owned the charge, but argued that it had not shown that it owned their debt.
In an affidavit, a Mars Capital manager said EBS Mortgage Finance transferred the facilities and charge to EBS DAC in September 2020, and that a bank loan book including the defendants’ facilities and charge was transferred to Mars Capital under a deed dated 30 April 2021. The defendants disputed that the deed established transfer of their debt. The High Court noted that the deed had to be read with a Mortgage Sale Agreement that was not before the court. The deed’s schedule did not give the property address, and there was no evidence linking the listed account or facility numbers to the property covered by the possession order.
The court refused the application on that evidential basis. It did not rule out a renewed application if Mars Capital can provide evidence showing it is entitled to issue execution. The judgment also noted that an application under the slip rule may be needed in relation to the 2017 order.