Promontoria Scariff DAC’s attempt to obtain possession of a property at 22 Toberburr Avenue, St Margaret’s, Co Dublin, has been sent to a full High Court hearing after the lender failed to establish its ownership of the underlying loan on the evidence presented.
William and Una Woodruffe borrowed €272,000 from Ulster Bank in 2006 and granted a mortgage over the property in 2007. Promontoria has been registered as owner of the mortgage charge since October 2019 and began possession proceedings in March 2024.
Ms Justice Nessa Cahill held that the Land Registry conclusively established Promontoria’s ownership of the registered charge for the purposes of the summary proceedings. The Woodruffes had argued that problems surrounding the timing of their own acquisition of the property rendered the mortgage and charge invalid, but the judge held that the correctness of the register could not be challenged as a defence in this type of possession application.
A different problem arose over ownership of the loan itself. Promontoria relied on documents and affidavits referring variously to a mortgage sale agreement of August 2018, a novation, deeds dated November 2018 and June 2019, and other transfer documents. Some were not exhibited, while Promontoria’s own 2023 audited financial statements stated that Cabot Financial Ireland had purchased the legal rights to the assets.
Promontoria said that statement was an error. The court found, however, that no adequate explanation had been provided for the conflicting accounts and that the evidence did not establish on the balance of probabilities that Promontoria owned the loan.
The judge also found merit in complaints about substantial unexplained redactions in a transfer deed and identified a stateable question about whether legal title may have passed under financing arrangements involving Mount Street Mortgage Servicing Limited.
Those issues could potentially be resolved with fuller evidence, so the possession application was remitted to plenary hearing rather than dismissed outright. Several other defences advanced by the Woodruffes were rejected as unarguable.
The court provisionally proposed no order as to costs.