The High Court has ordered Richard Conway and Rose Conway to give possession of their home at 33 Highfield Downs, Swords, to Pepper Finance Corporation (Ireland) DAC after a three-day rehearing of a possession case.
Mr Justice Heslin delivered judgment on 31 January 2020, following the defendants’ appeal from a Circuit Court order made on 20 March 2019. The appeal proceeded as a full rehearing. The judge also refused two applications made during the hearing: an adjournment request on the third day and an application to introduce a report about Windmill Funding DAC that had not been before the Circuit Court.
The case concerned a mortgage charge registered against the property in 2007. The court found that the lender, then operating under another name, was the same legal entity as Pepper Finance, and that it remained the registered owner of the charge. The judgment said the mortgage offer was for €540,000, repayable over 12 years, and that the defendants had accepted it and signed a mortgage deed dated 26 April 2007.
The court accepted evidence that the defendants had made no mortgage repayments since April 2015, apart from a €6.35 data access request fee. It also accepted that formal demands for full repayment were sent in May 2015 and were not met, followed by demands for vacant possession.
The defendants challenged Pepper’s entitlement to enforce the charge. They argued, among other things, that a 2012 transaction with Windmill Funding had transferred all rights in the mortgage portfolio, leaving Pepper without title. The judge found that the transaction transferred the beneficial interest but not the legal interest in the mortgage and security. He accepted the lender’s evidence that the transfer had not been perfected and that Pepper retained legal title. He rejected the defendants’ claims that the transaction documents were a sham or that a third party was the true owner.
The judge held that the defendants’ submissions and exhibits did not provide evidence sufficient to undermine the Land Registry entry or require a plenary trial. He found that repayment had become due and that Pepper was entitled to seek possession under section 62(7) of the Registration of Title Act 1964. The court refused all relief sought in the defendants’ motion, including requests for further information, permission to serve a third-party notice and a plenary hearing, and ordered possession to Pepper.