The High Court has allowed Start Mortgages Designated Activity Company to replace Permanent TSB Plc as plaintiff in proceedings seeking possession of two mortgaged properties. The substitution was granted ex parte as a procedural step, while registration of the mortgage transfer was still being processed.
Mr Justice Meenan delivered the judgment on 6 June 2019. The proceedings began with a claim for possession based on a mortgage and charge dated 2 October 2007. The judgment says the loan secured by the mortgage was transferred to Start on 1 February 2019. Start applied to be substituted as plaintiff under Order 17, rule 4 of the Rules of the Superior Courts.
The court considered whether the application could be made without notice, what proof was required, whether substitution could occur before the transfer was registered, and how the defendant’s interests should be protected. The judge held that the rule permitted an ex parte application of this kind. He described substitution as procedural and said it did not prevent the defendant from applying to set the order aside or contesting the transfer during the proceedings.
The application was supported by an affidavit from Start litigation manager Eva McCarthy. Its exhibits included a heavily redacted deed of transfer, a “goodbye letter” from Permanent TSB notifying the defendant that the loan and related rights had been transferred, a “hello letter” from Start identifying it as the new point of contact, and Form 56 for transfer of the mortgage and charge. The judge found these documents provided the prima facie evidence required for the substitution order.
Form 56 had been lodged with the Property Registration Authority and was still being processed. The judge said Start could be substituted before registration because the application was procedural, not an application to enforce statutory rights as the registered charge holder.
The court ordered the proceedings to continue between the defendant and Start in place of Permanent TSB. It also directed that the defendant be served with a copy of the order and written notice that the supporting affidavit and exhibits were available on request, that he could apply on notice to set aside the order, and that he could contest the transfer at the hearing. The judgment did not determine the underlying possession claim or the validity of the transfer at trial.