The High Court dismissed Colin Hayes and Jennifer Fitzgerald’s appeal against a Circuit Court order granting possession of their property at Killaha, Kenmare, Co. Kerry, to Irish Bank Resolution Corporation (IBRC). The appeal concerned whether the mortgage debt became due before a 2009 change in the law, allowing the lender to seek possession under an earlier statutory provision.
Kearns P. delivered the judgment on 21 February 2014. The court found that the mortgage terms made the principal monies due when a periodic payment remained unpaid for one month. No demand to the borrowers was required to trigger that provision. Because the payment default began in March 2009, before the relevant legislation took effect on 1 December 2009, the lender could pursue possession under section 62(7) of the Registration of Title Act 1964. The judge dismissed the appeal.
The Circuit Court had granted possession on 20 September 2012. The borrowers argued that the case was governed by Start Mortgages Ltd v Gunn, which the judgment described as requiring a demand for repayment of the principal before 1 December 2009 where the mortgage terms made demand necessary. IBRC argued that the mortgage here made the full debt due on default, without a demand, and that the approach in EBS Ltd v Gillespie applied.
The judgment set out that the borrowers had been in payment default since March 2009. It recorded arrears of €36,273.36 as of February 2011, with required monthly repayments of €2,418.45. A demand for possession and payment was sent on 17 November 2010. The court’s decision addressed the mortgage terms and the timing of when the principal became due; it dismissed the appeal and left the Circuit Court possession order in place.