Judgment: 2019-05-15 · Court archive

High Court affirms possession order in Bank of Ireland mortgage appeal

The court upheld the Circuit Court’s order for possession of a Galway property after striking out the defendant’s affidavit and disallowing further affidavits offered on appeal.

High Court · [2019] IEHC 341

Who, what, where, when and why

Who
  • Bank of Ireland Mortgage Bank (Plaintiff)
  • Margaret Fahy (Defendant)
What

The court upheld the Circuit Court’s order for possession of a Galway property after striking out the defendant’s affidavit and disallowing further affidavits offered on appeal.

Where

Places mentioned in the report

  • 4 Prospect Hill
  • Galway
When

Judgment:

Other dates in the report
  • 28 November 2017; 23 January 2015; 1 December 2016

    The judgment said a demand for payment of arrears was made on 23 January 2015 and went unanswered. A demand for possession followed on 1 December 2016. The Circuit Court made its possession order on 28 November 2017, and the High Court was hearing Ms Fahy’s appeal from that order.

Why

Reasons reported in the judgment

In an ex tempore judgment delivered on 15 May 2019, Mr Justice Noonan said the property was covered by a mortgage relating to four loans entered into between 1996 and 2006. He was satisfied that the bank’s affidavit evidence showed substantial defaults on each loan and that the loan transfers to the plaintiff were properly proved. He also reviewed the mortgage deed and found no relevant unfair terms.

The High Court has affirmed a Circuit Court order for possession of a property at 4 Prospect Hill, Galway, in an appeal brought by the defendant, Margaret Fahy, against Bank of Ireland Mortgage Bank.

In an ex tempore judgment delivered on 15 May 2019, Mr Justice Noonan said the property was covered by a mortgage relating to four loans entered into between 1996 and 2006. He was satisfied that the bank’s affidavit evidence showed substantial defaults on each loan and that the loan transfers to the plaintiff were properly proved. He also reviewed the mortgage deed and found no relevant unfair terms.

The judgment said a demand for payment of arrears was made on 23 January 2015 and went unanswered. A demand for possession followed on 1 December 2016. The Circuit Court made its possession order on 28 November 2017, and the High Court was hearing Ms Fahy’s appeal from that order.

Ms Fahy’s affidavit argued, among other matters, that the property had been placed in a private irrevocable trust. The judge said the affidavit consisted of legal argument and that, when given the opportunity to give oral evidence, Ms Fahy showed she had not drafted it and knew nothing about its contents. She was also unable to identify the person who had sent a letter asserting that the property was held in trust.

The judge struck out the affidavit, finding it was an abuse of process and did not comply with the rules governing affidavit evidence. He also disallowed further affidavits Ms Fahy sought to introduce at the hearing, ruling that leave had not been granted to introduce new evidence in the Circuit appeal and that the bank had not seen those documents.

With no admissible evidence or arguable grounds advanced by Ms Fahy, the High Court concluded that the Circuit Court judge had been correct and affirmed the possession order. The judgment did not make a new possession order; it affirmed the existing Circuit Court order.

Read the original court judgment

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