The High Court has ordered Permanent TSB to file further evidence about the securitisation and subsequent reversal of a mortgage at the centre of its possession case against Brian Donohoe. The court did not decide the possession claim, which remains to be heard.
Mr Justice Denis McDonald made the order in a judgment delivered on 15 June 2018, after hearing two applications in the proceedings. Permanent TSB is seeking possession of two rental properties, one in County Galway and one in Clondalkin, Dublin 22. The hearing of that claim did not proceed on 10 and 11 May because the court first had to deal with the applications.
Mr Donohoe, representing himself, had asked the court to compel the bank to answer a notice for particulars. The judge said the rules did not allow him to seek particulars of affidavit evidence or to ask questions simply because the answers might assist his defence. However, the court could use its inherent jurisdiction to require material where it was necessary for fairness and related to a sustainable issue.
The judge said Mr Donohoe had raised a potentially sustainable question about whether the securitisation arrangements affected the bank’s legal title to the mortgage and its right to pursue possession. The bank maintained that the arrangements transferred only a beneficial interest and that legal title remained with it. Mr Donohoe disputed that account and relied on documents concerning an agreement involving Fastnet Securities 7 Ltd. The judge said the evidence then before the court was too general to assess the specific arrangements in this case.
The bank must file a further affidavit explaining why it retained the right to enforce the mortgage despite the securitisation process put in place in 2008, and how that process was later reversed. It must exhibit the relevant documents. The judge made no decision on whether any material could be redacted; that issue could be addressed after the affidavit is filed and served.
The court refused the remaining requests for particulars, including requests concerning account records, regulatory compliance, receivers, insurance and the bank’s financial position. The judge said the supplied account statement was sufficient for Mr Donohoe to pursue any accounting argument, and that a breach of the cited codes would not provide a defence to this possession claim in the circumstances described.
The judge also set aside Mr Donohoe’s February 2018 notice to cross-examine Jacqueline O’Brien, who had sworn affidavits for the bank. He found that the alleged inconsistencies did not justify cross-examination on material issues, and directed that the proceedings be heard solely on affidavit and legal submissions.
The court refused the balance of Mr Donohoe’s application. It deferred the timetable for the bank’s further affidavit and the question of costs, and returned the possession summons to the Chancery List to set a new hearing date. The judgment did not determine the bank’s claim for possession or Mr Donohoe’s complaint under the Unfair Terms Regulations.