The High Court has paused an appeal by EBS Mortgage Finance after finding that documents needed to assess the fairness of the mortgage terms were missing from the papers before the court.
Mr Justice Max Barrett said he could not carry out the court’s obligation to assess consumer contract terms because the General Conditions for EBS Home Loans and the Rules of EBS had not been provided. He said those documents were incorporated into the loan terms through the mortgage and the offer letter.
The case concerns a €300,000 loan made in 2009 to brothers Keith Ryan and Gary Ryan, secured against a residential property they jointly owned. EBS began proceedings in 2013 after the borrowers fell into arrears. The case came before the High Court as EBS’s de novo appeal from a Dublin Circuit Court decision. Neither brother attended the appeal hearing; their father appeared and spoke on their behalf without objection from EBS.
In an affidavit, Gary Ryan alleged that an EBS manager had encouraged the brothers to take over their parents’ mortgage and assured them that payments would never rise and their parents could not be removed from the home during their lifetimes. The manager disputed some of these claims, including that he had encouraged the loan or promised to handle the legal work or that payments would never rise. The judge noted that the manager did not deny saying the parents would not be turned out of the house. The judgment did not decide these disputed allegations.
The judge said the Circuit Court may also have been unable to carry out the required fairness review because the same missing documents had not been before it. He described this as a potentially serious procedural problem, but did not decide how the case should proceed. He directed that the parties be heard on the issue after the courts reopened.
Pending that hearing, the judge ordered EBS to take no steps to put the defendants out of the house. The judgment did not decide the mortgage claim or make a final order on the appeal.