The High Court has allowed Start Mortgages DAC to take over proceedings brought by Permanent TSB against Gerry and Ann Burns and to execute possession orders made over three parcels of land in 2017.
Mr Justice Garrett Simons made the procedural orders on 27 January 2020, finding that Start Mortgages had established it succeeded to PTSB’s interest in the mortgage and the proceedings. The court did not rehear the original possession claim. It said all appeals against those orders had been exhausted and enforcement was the remaining issue.
The case began with a 2015 special summons. The High Court made possession orders on 16 January 2017, the Court of Appeal dismissed the Burns’ appeal in November 2018, and the Supreme Court refused leave to appeal in June 2019.
Start Mortgages applied to be substituted as plaintiff after PTSB transferred the loan, mortgage and related interests to it in 2019. It also sought leave to execute the possession orders. The application was opposed by the Burns, who argued that evidence from Start Mortgages’ litigation manager, Justin Nevin, was hearsay because he worked for the lender’s parent company. They also objected to the assignment without their consent and described the mortgage term permitting it as unfair.
The judge said the evidence standard was the balance of probabilities because the substitution application came after the substantive hearing and there would be no later trial to consider the transfer. For the registered parcel in Leitrim, the folio recorded Start Mortgages as owner of the charge. For the two unregistered parcels, the court relied on deeds of transfer and conveyance exhibited with Nevin’s affidavit. The judge noted that the Burns had not challenged the authenticity or application of the 2019 deeds and had not sought to cross-examine him.
The court rejected the hearsay objection, explaining that Start Mortgages relied on contractual documents and Nevin’s evidence about the company’s records, not on the Bankers’ Books Evidence Act. It also held that the mortgage conditions allowed PTSB to transfer the benefit of the mortgage without the borrowers’ consent, and that this was not an unfair term under the applicable consumer-contract rules.
The court substituted Start Mortgages for PTSB as plaintiff and granted it liberty to issue execution in respect of the 2017 possession orders. The judgment did not itself record that possession had been taken. The judge said he would hear the parties on costs.