The High Court has refused to vacate a lis pendens registered over two apartments in Mullingar while a lender’s claim to an equitable mortgage proceeds. The court said factual disputes remained about what occurred between the defendant and Anglo Irish Bank in 2009, and adjourned the application to the hearing of the underlying proceedings.
Kenmare Property Finance Limited’s Special Summons seeks to have €1,736,713.26 declared well charged on the defendant’s interest in properties on Folio WH2664L, and seeks sale or possession if the amount is not paid. The company says the defendant guaranteed credit facilities provided to his parents and agreed that his interest in two apartments at Marlinstown Park would secure the borrowing. It says it acquired the loans and security from Irish Bank Resolution Corporation Limited (IBRC).
The dispute followed the discharge of a receiver and vacation of a registered burden after handwriting experts for both sides concluded that the signature on a 2006 mortgage deed was not the defendant’s. The lender’s case in the Special Summons is instead based on an alleged 2009 guarantee and equitable mortgage. The defendant denies agreeing to mortgage his properties and disputes the alleged debt and the lender’s account of the facility documents. He also argued that the lender, as a private company, could not rely on the statutory evidential procedures available to banks and that its evidence of the debt was hearsay.
The defendant applied under section 123 of the Land and Conveyancing Law Reform Act 2009 to have the lis pendens removed. He said it was preventing him from completing a sale of the apartments and that the proceedings were not being prosecuted bona fide. The lender argued that the application was not the occasion to determine ownership of the loans, the debt or the asserted security; those matters required a hearing of the underlying proceedings.
Justice Faherty held that the question at this stage was whether the Special Summons was being prosecuted bona fide. The defendant’s denials and the lender’s account left factual issues about the alleged 2009 dealings, so the court was not satisfied that the defendant had established that the action was not being prosecuted bona fide.
The court refused to direct that the lis pendens be vacated and adjourned the application to the hearing of the proceedings. It expressly made no finding on the merits of the lender’s claim or on the evidential requirements for proving it.