The High Court has declared a debt owed by Geraldine Whelan well charged on a property in County Wexford and ordered that, if the amount outstanding is not paid, it be satisfied by sale of the property.
Ms Justice Egan made the orders in proceedings brought by Everyday Finance Designated Activity Company. The ex tempore judgment was delivered on 13 November 2023. The court was considering enforcement of a judgment mortgage, rather than whether Ms Whelan had originally granted a conventional mortgage over the property.
The earlier judgment was made in 2013 in proceedings brought by Allied Irish Banks against Ms Whelan and her husband, Jack Fardy. The High Court had given AIB liberty to enter final judgment against them jointly and severally for €239,877.38. Neither appealed, and neither had applied to set the judgment aside. AIB later registered a judgment mortgage against Ms Whelan’s interest in the property. Everyday Finance became the registered owner of that judgment mortgage in 2021 after a transfer of loan-related rights from AIB and other lenders.
Everyday Finance sought a declaration that €236,249.99 was well charged on the property, along with consequential relief including an order for sale. The judgment records that Ms Whelan did not dispute that €236,246.99 was due and owing, and did not allege an error in that calculation. The judgment also notes that a 2021 demand letter sought the higher sum of €322,267.46. The court said the difference did not prevent the relief sought, referring to an account statement sent before the proceedings that set out the amount now claimed.
Ms Whelan raised challenges concerning the High Court’s jurisdiction, the earlier judgment, the transfer to Everyday Finance, the loan agreements and other procedural and statutory matters. The judge rejected those arguments, concluding, among other things, that the 2013 judgment remained final and unchallenged, and that evidence established the transfer of the loan and judgment mortgage. The court also held that the property was not Ms Whelan’s family home and that its registration could not be challenged in these proceedings.
Mr Fardy was not joined as a defendant. The judge nevertheless heard his submissions on a de bene esse basis, after refusing to allow him to represent Ms Whelan. The court concluded that she had an adequate opportunity to present her case herself.
In deciding whether sale was appropriate, the judge noted that Ms Whelan had provided no evidence about her means, the property’s value, the debts charged on it or an ability to discharge the judgment mortgage. The court held it just and equitable to declare the amount sought well charged and to provide for sale in default of payment.