The High Court refused Allied Irish Bank plc’s application for possession of lands in Templemore, County Tipperary, and dismissed the proceedings after finding that the bank had not shown compliance with the Central Bank’s Code of Conduct on Mortgage Arrears.
Mr Justice Garrett Simons delivered judgment on 25 February 2019. The proceedings, brought by special summons in December 2017, concerned registered lands in Folio 37564. The defendant, Sean Buckley, said that he lived on the lands and that they included his principal private residence. He also said the Code’s procedures had not been followed.
The bank argued that the loan was for farming and that, although the primary residence was part of the security, it was not seeking possession of that home. Its demand letter and a grounding affidavit described the requested possession as limited to part of the lands, excluding the family property. The bank also said it could produce a map identifying the portion sought, but would need the defendant’s assistance to prepare it.
The judge held that the Code’s repossession moratorium applies when proceedings seek possession of a borrower’s primary residence. The Code can also apply to a loan secured by a primary residence even if the loan is commercial; however, the moratorium on repossession applies to proceedings directed at the home.
The special summons sought possession of all the property in Folio 37564 and did not distinguish the home from the rest of the lands. The judge said the summons set the limits of the proceedings. A distinction mentioned in the demand letter and affidavits could not narrow the relief sought in the summons.
Because the proceedings therefore sought possession of the primary residence, the bank had to show that it complied with the moratorium before bringing them. The judge found that the bank had produced no evidence of compliance and held that the proceedings were brought in breach of the Code. He refused the possession application and dismissed the proceedings. A separate bank motion for inspection had been deferred pending this ruling; the judgment did not determine that motion on its merits.