Judgment: 2013-01-31 · Court archive

High Court allows couple’s appeal against bank’s possession order

The court declined to grant possession of the family home, finding the lender had not made every reasonable effort to agree an alternative repayment schedule before starting proceedings.

High Court · [2013] IEHC 43

Who, what, where, when and why

Who
  • Irish Life and Permanent plc (Plaintiff)
  • Susan Duff (Defendant)
What

The court declined to grant possession of the family home, finding the lender had not made every reasonable effort to agree an alternative repayment schedule before starting proceedings.

Where

No place detail is included in this summary.

When

Judgment:

Other dates in the report
  • 1 December 2009

    The Circuit Court had made the possession order in February 2012 and stayed its execution for one year. The Duffs appealed. The High Court considered the registered and unregistered portions of the mortgaged land separately and concluded it had no jurisdiction to grant possession of the registered land in this case. The mortgage was created in 2003, and the court found the full mortgage debt had neither been demanded nor become due before the statutory change took effect on 1 December 2009.

Why

Reasons reported in the judgment

The Circuit Court had made the possession order in February 2012 and stayed its execution for one year. The Duffs appealed. The High Court considered the registered and unregistered portions of the mortgaged land separately and concluded it had no jurisdiction to grant possession of the registered land in this case. The mortgage was created in 2003, and the court found the full mortgage debt had neither been demanded nor become due before the statutory change took effect on 1 December 2009.

The High Court allowed Malcom and Susan Duff’s appeal against an order granting Irish Life and Permanent plc (ILP) possession of their family home in Co Louth. It declined to grant the bank possession, while stating that its decision did not prevent the bank from taking further steps to realise its security.

The Circuit Court had made the possession order in February 2012 and stayed its execution for one year. The Duffs appealed. The High Court considered the registered and unregistered portions of the mortgaged land separately and concluded it had no jurisdiction to grant possession of the registered land in this case. The mortgage was created in 2003, and the court found the full mortgage debt had neither been demanded nor become due before the statutory change took effect on 1 December 2009.

The court said it retained jurisdiction to consider possession of the unregistered land. However, it found that ILP had not complied with Clause 6 of the 2009 Code of Conduct on Mortgage Arrears. That clause required lenders to make every reasonable effort to agree an alternative repayment schedule before seeking repossession, subject to stated exceptions.

Mr Duff said he had offered interest-only repayments in 2009 and that the bank rejected the proposal. The judge found that the Duffs had engaged with the bank and that the evidence did not show they were non-co-operating borrowers at the relevant time. Following an earlier High Court decision, the judge concluded that the bank’s failure to comply with the Code meant it was not appropriate to exercise discretion to grant possession of the unregistered land.

The couple had taken a 25-year mortgage for €258,000 in October 2003. Their monthly payments were about €1,300. By February 2012, arrears had exceeded €63,000. The judgment recorded that only three payments had been made to the mortgage account since proceedings began.

The court allowed the appeal and declined to make a possession order. It did not cancel the mortgage or prevent ILP from taking further steps to realise its security.

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