The High Court has held that Promontoria (Oyster) DAC gave adequate written notice that Ulster Bank had assigned it a borrower’s debts, but has not yet decided whether the loans are secured against three parcels of land in Westmeath.
Mr Justice Garrett Simons delivered judgment on 15 March 2022 in Promontoria’s claim against Tomas Lynn. The company seeks declarations that three folio lands are charged with money said to be owed under loan agreements dated 21 October 2010, 16 September 2013 and 28 July 2014. The loans were said to be secured by liens registered against the lands.
The dispute concerned the statutory requirement for express written notice of an assignment. The judge found that letters dated 16 November 2017 and 4 September 2018 provided the required detail. They identified the loan agreements by their dates and principal amounts, stated that Promontoria had acquired the bank’s rights under a deed of transfer dated 19 December 2016, and directed payment to Promontoria.
The defendant argued that notice had to be sent separately and before any demand for payment. The judge rejected that argument, finding no requirement for a gap between notice and demand. A single letter could serve both purposes. He also rejected the claim that notice was inadequate because it did not separately describe the registered liens: the letters referred to the security, and the register recorded Promontoria’s interest in the liens.
The court’s decision did not resolve whether those liens secure the three loans. The judge referred to his recent ruling in Promontoria (Oyster) DAC v Fox, which held that a lien registered under section 73 of the Registration of Deeds and Title Act 2006 could not secure a further loan agreement entered into after 31 December 2009. He said that ruling appeared to mean the loans in this case were not secured against the lands, and directed that the parties be heard further on its implications.
The court listed the matter for a remote mention on 28 March 2022. The judgment did not make a final determination of Promontoria’s claim for well-charging relief.