Judgment: 2020-03-25 · Court archive

High Court grants KBC possession of Galway family home after rehearing

The court found that the bank owned the registered charge and that the borrowers had defaulted. It said funds lodged in court from the second defendant’s UK property sale should be paid to her, subject to further submissions.

High Court · [2020] IEHC 175

Who, what, where, when and why

Who
  • KBC Bank Ireland plc (Plaintiff)
  • Michael McCormack
  • Elizabeth McCormack (Defendant)
What

The court found that the bank owned the registered charge and that the borrowers had defaulted. It said funds lodged in court from the second defendant’s UK property sale should be paid to her, subject to further submissions.

Where

Places mentioned in the report

  • Folio 29819 F
  • UK
When

Judgment:

Other dates in the report
  • 18 February 2020

    The High Court has ordered possession of a Galway family home to KBC Bank Ireland plc after a rehearing of the bank’s claim against Michael and Elizabeth McCormack. The decision followed a hearing de novo on 18 February 2020 of proceedings first brought by civil bill in 2014.

Why

Reasons reported in the judgment

Mr Justice Heslin found that KBC owned the charge registered over the property and was entitled to bring the case. The judgment traced the lending from IIB Homeloans and found that a 2009 statutory transfer moved the relevant banking business and security to KBC Bank Ireland.

The High Court has ordered possession of a Galway family home to KBC Bank Ireland plc after a rehearing of the bank’s claim against Michael and Elizabeth McCormack. The decision followed a hearing de novo on 18 February 2020 of proceedings first brought by civil bill in 2014.

Mr Justice Heslin found that KBC owned the charge registered over the property and was entitled to bring the case. The judgment traced the lending from IIB Homeloans and found that a 2009 statutory transfer moved the relevant banking business and security to KBC Bank Ireland.

The judge found that the defendants had periodically failed to make the required mortgage payments since about May 2011. He accepted evidence that the bank demanded repayment of €386,966.44 in June 2014 and later evidence that arrears had accumulated. A separate 2019 judgment against the defendants was for €456,052.23. The possession case itself was not a claim for a money judgment; the court said the earlier judgment settled the existence and amount of the debt for purposes of the arguments raised in this case.

The defendants had challenged the bank’s standing, the debt and interest, and the circumstances in which Elizabeth McCormack signed loan documents. The judge found that the documents recorded both defendants’ confirmation that they had received legal advice. He said there was no evidence supporting the claim of undue influence. He also rejected the arguments based on mortgage arrears procedures and unfair contract terms, finding that the bank had offered two temporary reduced-payment arrangements and had assessed the account as unsustainable.

Michael McCormack sought more time, referring to a proposed personal insolvency arrangement and a protective certificate application. The judge refused to delay the decision, saying the insolvency process did not prevent him from deciding the possession claim. He said the ruling would not prevent either defendant from pursuing insolvency options or negotiating with the bank.

The court ordered possession of the premises in Folio 29819 F, County Galway. It also indicated that, subject to submissions, an appropriate further order would direct payment to Elizabeth McCormack of funds held in court from the sale of a UK property she owned. The judgment did not state the amount of those funds and left that matter subject to further submissions and liberty to apply.

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