The High Court has upheld an order granting Permanent TSB possession of Eric and Sharon Mallon’s home in Mullingar, but stayed the complete order for six months to allow them to consider the insolvency process.
Mr Justice White delivered the judgment on 27 October 2017, following a full rehearing of the issues raised in the Mallons’ appeal. The appeal concerned a Circuit Court order made on 24 July 2015. The High Court concluded that Permanent TSB was entitled to possession under the mortgage terms. The stay pauses the complete order; the judgment does not describe it as a stay of execution alone.
The Mallons’ mortgage began with an original advance of €133,000, secured by a charge registered in April 2003. In 2007, they accepted a further loan offer of €212,000 over 20 years, at a variable rate of 5.6%, with monthly instalments of €1,470.32. The existing charge covered future advances, the judge found, so no transfer or new charge was required. The judgment records arrears from June 2011 and says they had reached €79,161.18 by 29 November 2016.
The couple raised numerous grounds of appeal, including alleged failures of due process, problems accessing original documents, breaches of the mortgage arrears code, and challenges to the validity and fairness of the mortgage. The judge said the appeal was treated as a full rehearing, making alleged procedural defects at the Circuit Court hearing irrelevant to the appeal. Copies of relevant documents were sufficient, and the Mallons had an opportunity to inspect originals after the Circuit Court order.
The court found that the lender had operated the mortgage arrears code. It criticised the limited nature of the repayment offers, noting that they provided only short-term reductions and no longer-term restructuring. The judge also described the last restructuring offer, which sought a higher monthly payment than the original instalment, as “quite a cynical offer”. But the court said it had no general jurisdiction to decide whether the lender’s conduct was fair or to require more favourable terms. It found the lender had not lost its right to bring proceedings by continuing discussions during them.
The judge said the court’s task was to decide whether the legal conditions for possession had been established. It concluded that they had, and upheld the lender’s entitlement to an order for possession, subject to the six-month stay.