Judgment: 2017-02-13 · Court archive

High Court dismisses appeal against possession order for Cavan home

The court held that the Circuit Court had jurisdiction over the mortgage possession claim because the property was the defendants’ principal private residence. It dismissed the appeal and affirmed the possession order.

High Court · [2017] IEHC 79

Who, what, where, when and why

Who
  • KBC BANK IRELAND LIMITED (Plaintiff)
  • MARK FLYNN
What

The court held that the Circuit Court had jurisdiction over the mortgage possession claim because the property was the defendants’ principal private residence. It dismissed the appeal and affirmed the possession order.

Where

Places mentioned in the report

  • County Cavan
When

Judgment:

Why

Reasons reported in the judgment

In an ex tempore judgment delivered on 13 February 2017, Mr Justice Noonan said the Circuit Court had jurisdiction because the property was the defendants’ principal private residence. The claim was brought under section 3 of the Land and Conveyancing Law Reform Act 2013, which provides for Circuit Court proceedings seeking possession of a principal private residence. The judge said the jurisdiction did not depend on the property’s rateable valuation.

The High Court has dismissed Mark Flynn’s appeal against a Circuit Court order granting KBC Bank Ireland Limited possession of a property in County Cavan, affirming the original order.

In an ex tempore judgment delivered on 13 February 2017, Mr Justice Noonan said the Circuit Court had jurisdiction because the property was the defendants’ principal private residence. The claim was brought under section 3 of the Land and Conveyancing Law Reform Act 2013, which provides for Circuit Court proceedings seeking possession of a principal private residence. The judge said the jurisdiction did not depend on the property’s rateable valuation.

The appeal concerned a Circuit Court order made on 15 March 2016. The bank had issued a civil bill for possession on 1 May 2014, relying on a mortgage entered into with the defendants on 14 July 2006. The bank’s affidavits said payments had been in default since 1 November 2011 and that a demand letter issued on 2 September 2013 sought €252,307.27.

Flynn appeared at the appeal hearing but did not file a replying affidavit or give evidence establishing a bona fide defence, the judgment said. He instead relied on a notice of motion seeking several forms of relief, including a declaration that the Circuit Court lacked jurisdiction and a request to state a case to the Court of Appeal. The judge said those matters could not be litigated through a notice of motion in a Circuit Court appeal and found no basis to state a case.

The judgment also rejected Flynn’s contention that the mortgage should be transferred to an entity he called The People’s Mortgage Protection Vehicle. The judge said the statutory right to require transfer of a mortgage applied to a mortgagor entitled to redeem, and the sums due remained outstanding. The judgment recorded Flynn’s submission that he had been making payments to that entity; the judge said the bank or its lawful assignees were entitled to receive payments under the mortgage.

The court’s decision was to dismiss the appeal and affirm the Circuit Court possession order. The judgment did not make a new possession order; it left the Circuit Court’s order affirmed.

Read the original court judgment

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