The High Court has dismissed Patrick and Angela McMahon’s appeal against an order granting possession of their family home in Castleknock to the Governor and Company of the Bank of Ireland.
In a decision delivered on 15 June 2018, Mr Justice Binchy affirmed the Circuit Court’s order of 26 April 2017 for possession of No. 1, Park Lodge, Laurel Lodge, Castleknock, Dublin 15. The appeal concerned that order. The judge said the Circuit Court judge’s conclusions on the facts and law were correct, and considered whether additional arguments raised on appeal justified allowing it. He rejected those arguments and affirmed the possession order.
The borrowers argued, among other things, that the bank should have issued a fresh demand after their loan was transferred from ICS Building Society to the bank in September 2014. The judge accepted the bank’s submission that section 34 of the Central Bank Act 1971 gave the transferee the same rights and obligations, so it could rely on the demand issued by ICS in August 2014.
They also challenged the Circuit Court’s jurisdiction and argued that the mortgage terms were unfair. The judge held that the proceedings, issued in January 2015, were required to be brought in the Circuit Court under the Land and Conveyancing Law Reform Act 2013. He found the property was the couple’s principal private residence. He said the loan agreement was clear and found no unfair term within the applicable consumer regulations. He distinguished the loan agreement from the mortgage deed, whose technical language he acknowledged was not readily understood by a lay person.
The appeal also raised the Central Bank Code of Practice on the Transfer of Mortgages. The judge said the bank had given no specific notice to the borrowers and appeared not to have complied with the code’s consent requirements. But he held that the code was voluntary and that non-compliance did not provide a defence to the possession claim. Any remedy concerning that non-compliance lay in a complaint to the Central Bank.
The judge also rejected the borrowers’ procedural arguments under the European Convention on Human Rights and the European Charter. He noted that a court must be satisfied of a lender’s entitlement to possession and address the defendants’ arguments before making an order. The decision does not set out a separate enforcement or eviction timetable.