The High Court dismissed Kevin Woods’s appeal against a Roscommon Circuit Court possession order and held that KBC Bank Ireland plc could exercise its power of sale under the mortgage.
In a judgment delivered on 13 March 2017, Mr Justice Eagar considered whether IIB Homeloans Ltd.’s mortgage charge had transferred to KBC Bank Ireland plc without being registered in KBC’s name. The appeal concerned premises at Corey, Kilmore, Carrick on Shannon, County Roscommon.
The judgment records that IIB Homeloans advanced €284,000 to Woods on 5 January 2007 and registered the mortgage in the Land Registry on 3 February 2009. It also records that payments had been periodically in default since 1 November 2011. The bank sought to exercise its power of sale.
KBC argued that the charge transferred under a Minister-approved scheme and sections 35 and 36 of the Central Bank Act 1971. Those provisions, it submitted, meant the transfer operated by law and did not require registration under land-registration legislation. Woods’s counsel relied on section 62(2) of the Registration of Title Act 1964 and a Supreme Court decision concerning Bank of Scotland, arguing that an unregistered transferee could not enforce the charge.
The High Court distinguished that Supreme Court case. It said the Bank of Scotland transfer had not been made under the statutory scheme available under the 1971 Act, while the transfer in this case had. The court concluded that the charge had transferred to KBC under the scheme and that formal registration was not required.
The court dismissed the appeal and ruled that KBC was entitled to exercise its power of sale under clause 11 of the mortgage. The judgment does not state that the property was sold or that the possession order was carried out.