The High Court has granted a receiver interlocutory injunctive relief in a dispute over a property on Walkinstown Road, Dublin, where a borrower and her husband were said to be trespassing. The court found the receiver had a strong case that he was likely to obtain possession at trial. It did not make a final possession order.
The judgment, delivered by Ms Justice Reynolds on 17 January 2020, concerned a €420,000 mortgage taken out in 2007 by Ann (otherwise Anna) Doran with First Active plc. The loan offer described the property as a buy-to-let investment. The mortgage terms restricted the borrower from granting a tenancy or sharing possession with a third party without the lender’s consent.
The receiver, Jimmy Murphy, was appointed in 2016 by Promontoria (Finn) Limited, which had acquired the loan and mortgage after First Active’s business transferred to Ulster Bank and the facility was later assigned. The borrower fell into arrears. Ulster Bank demanded €439,224.71 in February 2013, according to the judgment.
The borrower said she and her husband had lived at the property since about March 2012 and argued it was their family home, bringing the loan within the Central Bank’s Code of Conduct on Mortgage Arrears. She relied on marriage, employment, Revenue and utility records. She also challenged the receiver’s appointment and argued that possession proceedings should be brought by a civil bill in the Circuit Court.
The receiver disputed that the property qualified as the borrower’s primary residence for the code. He argued the loan had been commercial and for an investment property, and that moving in years later without the mortgagee’s consent did not change the mortgage’s character. He also argued that the borrower’s breach of the mortgage terms independently permitted proceedings under the code.
Justice Reynolds concluded that the borrower was not entitled to have the code applied. The court considered the commercial purpose of the 2007 loan and noted that, when it was taken out, the borrower’s primary residence was at 10 Derby Lodge, The Curragh, County Kildare. The judgment said the borrower had been advised of the Mortgage Arrears Resolution Process in 2014 but had not engaged with it. It also found that installing her husband in the property breached the mortgage terms.
In granting the requested reliefs, the judge said damages would not adequately compensate the receiver given the debt and the borrower’s inability to pay, and that the balance of convenience favoured an injunction. The order was interlocutory: the court’s assessment was that the receiver had a strong case for possession at the substantive trial.