The High Court allowed Tanager DAC’s appeal and granted its request for an order of possession over the defendant’s family home at One Elmwood, Clonsilla, County Dublin. The appeal was from a Circuit Court order dismissing Tanager’s claim.
The judgment, delivered by Mr Justice Noonan on 21 November 2019, concerned a €266,000 mortgage loan made by Bank of Scotland (Ireland) Ltd in 2006. The loan was secured on the property. The court recorded that Bank of Scotland plc acquired the lender’s assets and liabilities through a cross-border merger at the end of 2010, and that Tanager later bought a portfolio of securities that included the mortgage. Tanager became registered as owner of the charge in April 2015.
The defendant disputed Tanager’s right to enforce the charge, challenged the interest applied to the account and argued that transfer to an unregulated entity deprived him of consumer protections. He also argued that the assignment was unenforceable because he had not received the written notice required by law.
The court said the title issue had already been disposed of after the Court of Appeal ruled that the defendant could not raise it in these proceedings. On interest, the court found that the defendant had accepted a fixed-rate offer in June 2007, replacing the original tracker rate. It also noted that an affidavit filed in support of the possession proceedings had stated the account’s interest rate was 1.55%, and that the defendant had not challenged that evidence at the time. The court found no evidence to support his late contention that interest arrears had been improperly capitalised.
On consumer protections, the court considered evidence that the Code of Conduct on Mortgage Arrears applied and had been followed, and that Tanager’s appointed credit intermediary was regulated. It found no demonstrated unfairness that could provide a defence to the possession claim.
The court rejected the argument that a mortgage clause consenting to assignment removed the need for written notice. It found, however, that BOS’s December 2013 letter and Tanager’s April 2014 “hello letter” together met the statutory notice requirements. The defendant had returned the latter letter, writing that he did not recognise Tanager.
Having found that the defendant had established no defence, the High Court allowed the appeal and granted the possession order sought. The judgment does not specify a date for possession or set out further terms of the order.