The Court of Appeal has rejected the grounds of defence advanced by Brian Donohoe in long-running mortgage possession proceedings concerning properties in Galway and Clondalkin, but has sent one final issue back to the High Court for determination.
The case arose from a €543,450 loan advanced by Permanent TSB’s predecessor in 2007 and secured over 301A Tirellan Heights, Headford Road, Galway, and 27 Grange View Drive, Clondalkin, Dublin 22. Mr Donohoe stopped making repayments in July 2010.
The High Court had previously directed that six disputed issues should proceed to a full plenary hearing. Delivering the Court of Appeal judgment, Ms Justice Costello held that none provided an arguable defence to possession and allowed the lenders’ appeal on all six.
A central issue was whether Mr Donohoe was a consumer entitled to rely on protections against unfair contract terms. The court found he was not. His 2007 application identified rental income of €60,000 a year, sought refinancing of rented properties and disclosed no other income from which the loan would be serviced. The business element was therefore substantial rather than negligible.
The court also held that no demand letter was required before the lender’s right to possession arose. Under the mortgage terms, the total debt became automatically payable after two missed monthly repayments. Arguments concerning the applicable interest rate could not provide a defence where no repayments had been made since 2010.
The court further found that the core loan and transfer documents were admissible, that Start Mortgages had proved legal ownership of the debt and security, and that regulatory arguments concerning credit servicing did not invalidate otherwise enforceable loan rights.
Mr Donohoe’s ten-ground cross-appeal was dismissed.
However, Mars Capital acquired the loan and security after the High Court hearing. Although it is now registered as owner of both charges, the Court of Appeal ruled that its entitlement to possession should first be decided by the High Court on a summary basis. The respondent may contest that entitlement only and cannot reopen previously rejected arguments.