Judgment: 2018-06-29 · Court archive

High Court allows Bank of Ireland Mortgage Bank to enter €98,213.55 judgment against Donegal borrowers

The court rejected the borrowers’ request to send the mortgage debt dispute to a plenary hearing, finding no arguable basis that the bank drove the property sale or that it was sold below market value. A stay of execution remained to be argued.

High Court · [2018] IEHC 413

Who, what, where, when and why

Who
  • Bank of Ireland Mortgage Bank (Plaintiff)
  • Carmel Doherty
  • John Doherty (Defendant)
What

The court rejected the borrowers’ request to send the mortgage debt dispute to a plenary hearing, finding no arguable basis that the bank drove the property sale or that it was sold below market value. A stay of execution remained to be argued.

Where

Places mentioned in the report

  • 10 Churchlands
  • Manorcunningham
  • County Donegal
When

Judgment:

Why

Reasons reported in the judgment

Ms Justice Faherty said the defendants had not put forward an arguable factual basis that the bank was actively involved in the sale of their family home or that it was sold below its market value. The court’s decision was on the bank’s motion for summary judgment; it did not determine the proposed stay of execution, on which the judge said she would hear submissions.

The High Court has given Bank of Ireland Mortgage Bank liberty to enter final judgment for €98,213.55 against Carmel and John Doherty over a mortgage shortfall, after refusing to send the dispute to a plenary hearing.

Ms Justice Faherty said the defendants had not put forward an arguable factual basis that the bank was actively involved in the sale of their family home or that it was sold below its market value. The court’s decision was on the bank’s motion for summary judgment; it did not determine the proposed stay of execution, on which the judge said she would hear submissions.

The defendants borrowed €225,000 in 2007 against a property at 10 Churchlands, Manorcunningham, County Donegal. The loan fell into arrears, and a receiver was appointed in September 2014. The property was later sold as part of the Project Venus portfolio sale. The bank credited €91,600 to the mortgage account, along with a €230.13 Local Property Tax refund. The judgment records that the bank was not seeking to recover the receiver’s fees and outlays from the defendants.

Carmel Doherty argued that the property had been disposed of through a portfolio transaction rather than an ordinary sale and that €91,600 was below market value. She also alleged that the bank had been involved in arranging the sale. The bank disputed that claim and submitted that the receiver was the defendants’ agent.

The judge considered emails from the receiver’s office, including one referring to a portfolio sale “with Bank of Ireland”. She found that the email was sent after the receiver’s appointment by an employee of the receiver, and did not provide sufficiently cogent support for an arguable case that the bank instigated or played a primary role in the sale.

The defendants also had not supplied evidence, including evidence of a hearsay nature, that €91,600 was below the property’s market value in December 2014. The first defendant said two auctioneers had declined to give a valuation, describing any figure as a “guesstimate”. The court found that the claim of an undervalue remained a mere assertion.

Other concerns raised by the first defendant included differing figures for sale proceeds and receiver expenses, the contract for sale and an NPPR charge recorded against the property. The judge found these matters did not establish an arguable defence to the bank’s claim. The court had previously ordered discovery of sale documents; the defendants’ later motion for further compliance was refused, although the first defendant was allowed to file a supplemental affidavit about valuation.

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