The High Court has dismissed Keith McNair’s appeal against a Circuit Court order granting Start Mortgages DAC possession of a dwelling house and lands in Co. Sligo. The order was affirmed, with execution stayed for six months from 23 March 2020.
Mr Justice Garrett Simons delivered the judgment on 23 March 2020. The case came before the High Court as an appeal by Mr McNair alone. A separate possession order against Deborah McNair, also known as Debbie McNair, had been made on 11 May 2016; she did not appeal it.
The court found that Start Mortgages was the registered owner of a charge over the property, held in Folio 10247F, Co. Sligo. The charge secured a loan agreement made in 2007 for €350,000. The court recorded that the last payment was made on 21 July 2011 and that more than €470,869.75 remained outstanding, based on an affidavit filed for Start Mortgages.
Mr McNair raised a series of legal objections, including arguments about the court’s jurisdiction, the mortgage-arrears code, the lender’s authorisation, the interest rate, service of proceedings, the demand for payment and the transfer of the loan’s beneficial interest. The judge rejected the appeal. He held that the Circuit Court’s jurisdiction arose under the 2013 Act because the mortgaged dwelling had been the borrowers’ principal private residence when the mortgage was created; its valuation did not determine jurisdiction. The court also found that the lender had exhibited demands for payment, including a letter Mr McNair had referenced in his own correspondence.
The judgment said that alleged breaches of provisions of the mortgage-arrears code other than its possession moratorium would not, even if established, provide a defence to the possession application. The judge noted that Mr McNair had not alleged a breach of the moratorium. On the question of Central Bank authorisation, the court found that he had not established that the loan and charge required such authorisation in 2007.
The court concluded that Mr McNair had made out no defence to the possession application and had proposed no repayment of the balance. It dismissed his appeal and affirmed the Circuit Court order. The six-month stay ran from the judgment date. Mr McNair was given liberty to apply to extend it if the prevailing coronavirus emergency conditions continued at the end of that period; any such application had to be made on at least 14 days’ notice to the lender’s solicitors.