The High Court has granted Bank of Ireland Mortgage Bank an order for possession of a family home in Delgany, Co Wicklow, relying on a €200,000 loan from 2005. The order carries a six-month stay to give the wife time to arrange alternative accommodation.
Mr Justice Garrett Simons ruled on an appeal from a Circuit Court possession order made on 25 March 2019. The bank’s application was under section 62(7) of the Registration of Title Act 1964. The judge found that the principal money under the first loan had become due and that the wife did not dispute her liability under it. He said the bank could seek possession on that loan alone, even though enforceability of a later loan remained in dispute.
The couple, who have been legally separated since 2013, are registered owners of the property, which the judgment describes as their former family home and says is now occupied by the wife alone. The bank’s charge over the property was registered in 2006 and secured present and future advances.
The second loan, for €800,000, was signed in 2006 to fund the purchase of a development site. The wife said she had no involvement in the negotiations, received no benefit from the loan and signed only after her husband threatened and intimidated her. Her husband’s affidavit supported her account, describing aggressive behaviour and saying the bank had not obtained her informed consent or advised her to seek independent legal advice. The bank did not cross-examine either spouse on their affidavits.
The bank disputed aspects of that account and said the development was intended to provide a new family home for the couple. The judge found that the wife had raised a prima facie case of undue influence. He said whether the bank could rely on the second loan against her could not be determined on affidavit evidence alone and would require oral evidence and cross-examination.
However, the court did not refer that question to a full hearing because it was unnecessary to decide it to determine possession based on the first loan. The judge also declined to adjourn under section 7 of the Family Home Protection Act 1976: there was no evidence that the wife could pay even the arrears on the first loan. The judgment makes no finding on the bank’s right to recover the second loan from her or to apply sale proceeds to it; any later dispute on sale proceeds would require separate proceedings.
The judge’s provisional view was that each party should bear their own legal costs. The parties were given four weeks to make written submissions if they sought a different costs order.