The High Court has allowed Start Mortgages Designated Activity Company’s appeal in a mortgage possession case involving Anthony and Paula Galibert, finding that the couple had not raised a credible defence. The court proposed an order for possession of their family home, with a six-month stay to allow them time to arrange alternative accommodation, subject to submissions before the order is finalised.
The judgment, delivered by Ms Justice Siobhán Phelan on 1 April 2022, was a full rehearing of the lender’s appeal against a 2019 Circuit Court decision. That court had declined to make a summary possession order and directed that the claim proceed to a plenary hearing. The High Court allowed the appeal and proposed an order under section 62(7) of the Registration of Title Act 1964 and section 1(2) of the Land and Conveyancing Law Reform Act 2013. It listed the case for 9 May 2022 to finalise orders and deal with consequential matters. The judgment does not record the finalised order.
The couple borrowed €211,650 in 2008, secured by a registered charge over their family home in Ferrybank, County Waterford. They fell into arrears in 2008 and stopped making payments in 2015. The lender issued possession proceedings in November 2015. The first respondent, who represented both respondents’ position in court, disputed the lender’s evidence and raised concerns about the calculation of arrears, the identity of the entity receiving payments and whether the lender remained entitled to pursue possession.
Justice Phelan found that the lender had established it was the registered owner of the charge and that the principal loan had become due. She concluded that the respondents’ challenges to the lender’s affidavit evidence and means of knowledge did not provide a credible defence. Although she accepted for the purpose of argument that the earlier arrears method might have involved impermissible capitalisation, she found no evidence that it had prevented the couple from making payments or arranging a repayment plan. No payments had been made since 2015.
The judge also rejected the securitisation and ownership arguments, holding that the registered charge established the lender’s entitlement to pursue possession in these proceedings. She considered the court’s duty to assess potentially unfair consumer contract terms and found no term that had operated unfairly in this case.