The High Court has set aside a Circuit Court order for possession of a family home in Gorey after Bank of Ireland Mortgage Bank failed to prove that Heather Cody had signed two loan agreements underlying its claim.
Mr Justice Garrett Simons allowed Ms Cody’s appeal from the Circuit Court’s order of 12 February 2019. The appeal was heard by way of rehearing on the affidavit evidence that had been before the Circuit Court. The judge said the bank, which bore the burden of proof, had not established that Ms Cody executed the agreements. Without that proof, the bank had not shown that she was indebted under them, a necessary basis for the possession claim.
The bank said the loans, made in 2005, were secured against the home by a mortgage and charge dated 12 January 2007. It said repayments had been missed and repayment demands sent in June 2016. The loan documents were in Ms Cody’s maiden name, Heather MacMillan, and appeared to bear signatures beginning with “Heather”. The judge noted that no witness had confirmed she signed them.
Ms Cody alleged that loans and mortgages had been created in her and her estranged husband Peter Cody’s names without her knowledge or consent, and that signatures had been witnessed when she was not present. She also alleged that bank correspondence was sent to her husband’s former solicitors’ offices to conceal the borrowing. These were her allegations, not findings by the High Court.
The judge said the bank had not directly answered the allegations with evidence and had not sought to cross-examine Ms Cody in the Circuit Court. The bank relied on exhibited documents, including loan offer letters, but the judge said exhibiting a document did not by itself prove the truth of its contents. The evidence also did not establish that a loan condition providing for €200,000 to be paid to Ms Cody had been fulfilled or that she received the money.
The High Court did not determine whether the alleged fraud occurred or make a definitive finding on the underlying factual dispute. It held that the evidence before it was insufficient to establish the bank’s claim for possession. The court refused Ms Cody’s application to introduce further evidence on appeal, ruling that the material could have been obtained and presented earlier.
The judge noted that Ms Cody had separate plenary proceedings against her former husband, his former legal firm and the bank. He said those proceedings could have implications for her continued occupation of the home and proposed hearing submissions on case-management directions if they were to continue. The court adjourned the matter to consider costs and any directions for an early hearing; the judgment did not determine those issues.