The High Court has sent National Asset Loan Management Limited’s claim against Anne Coughlan to a plenary hearing, finding she had raised an arguable defence to the lender’s application for summary judgment. The court did not decide whether the loan was enforceable or whether the defence would succeed.
The judgment, delivered by Mr Justice Birmingham on 9 May 2014, concerns Facility B, one of two facilities Anglo Irish Bank made available to the defendants in 2008. The lender sought €384,484.85 from Mrs Coughlan. Facility A had been repaid in full in December 2009 and was not part of these proceedings.
Mrs Coughlan argued that she was a consumer and that Facility B was for a family home, rather than her trade, business or profession. She said she and her husband bought a site at Umera, Ardbrach, in 2001, demolished the existing house and built a home there. They called it Fasnet House and moved in when it was completed in 2008. She said the bank knew the project was for a private home.
The facility documents included certificates signed by the defendants stating that they were not consumers and that the borrowing was for business purposes. The judge noted that Mrs Coughlan had also signed similar certificates with certain later amendment letters. He said it remained to be determined whether she could contradict those statements, and whether the defendants’ business could encompass constructing Fasnet House.
The judge said the evidence raised an arguable case that Mrs Coughlan was a consumer in relation to Facility B and that non-compliance with consumer-credit requirements could make the facility unenforceable. He referred in particular to 2004 loan documents that included a reference to a “Housing Loan Agreement” and, in one instance, a cover sheet headed “Housing Loan Agreement Regulated by Consumer Credit Act 1995”. He applied the summary judgment test of whether it was very clear that the defendant had no case, and concluded she had crossed the threshold for leave to defend.
Mrs Coughlan also raised concerns about delay in realising security over an apartment at Grand Parade, Cork, and possible overcharging on an earlier loan. The judge made no assessment of the strength of those arguments, saying the evidence could develop. He noted there was then no evidence that the couple had been overcharged.
The court refused to strike out the proceedings and sent them to plenary hearing. It left further orders concerning pleadings to be discussed with counsel.