The High Court rejected Donal and Fiona Keane’s application to dismiss Permanent TSB’s possession summons, finding the claim was adequately pleaded. Ms Justice Costello ordered possession of the two mortgaged properties named in the summons.
The judgment, delivered on 15 May 2018, concerned whether the special indorsement of claim stated a valid cause of action and gave the defendants sufficient particulars. The summons sought possession under section 62(7) of the Registration of Title Act 1964. The properties were identified as Folio 47245F, County Clare, and Folio 3892L, County Tipperary. The court said they were not the defendants’ family home or principal private residence.
Permanent TSB’s evidence was set out in an affidavit from Jacqueline O’Brien. She said the defendants accepted a loan offer in December 2006 and the bank advanced €535,000 around 12 January 2007. A mortgage and charge dated 22 January 2007 secured the loan against both properties. The affidavit stated that repayments had not been received since 10 January 2014. The bank demanded repayment in February 2017 and later sought vacant possession.
The defendants filed no replying affidavit. Their counsel accepted that the bank’s evidence was in order if the summons met the court rules. The defendants argued that the indorsement lacked particulars required by Order 4, rule 4 of the Rules of the Superior Courts.
The judge held that a claim under section 62(7) implicitly alleges that the secured principal has become due. Under the mortgage terms described in the judgment, the debt became due after two missed monthly repayments without a demand being required. The omitted detail was within the defendants’ knowledge, and there was no evidence that they could not understand or fairly meet the claim. The judge also held that the verifying affidavit, expressly listed on the summons and served with it, supplied relevant particulars.
The court refused the application to dismiss the summons for failing to disclose a cause of action or plead necessary particulars. It found the pleadings valid and the bank entitled to the relief sought, and made an order for possession of the scheduled lands and premises. The judgment records that order; it does not state that possession was subsequently enforced.