The High Court has ruled that Allied Irish Banks plc was entitled to orders for possession of lands in County Louth after a written consent from AIB Mortgage Bank was followed by a fresh demand for repayment.
Mr Justice Garrett Simons gave judgment on 28 January 2019 in proceedings brought under section 62(7) of the Registration of Title Act 1964. The application concerned lands registered under two County Louth folios and a mortgage created in 2007. The court said the statutory route required the secured principal to have become due.
The defendant, Patrick McCabe, argued that earlier demands were ineffective. The mortgage said Allied Irish Banks could take steps to enforce it only with AIB Mortgage Bank’s prior written consent until a defined release date. Mr McCabe said a demand was itself such a step and that earlier letters had been sent without the required consent. He also challenged references to both banks, arguing the debt was owed to Allied Irish Banks alone and that it was unclear which bank was demanding possession.
The court recorded that no payment had been made since 12 March 2012 and that €2,410,928.01 in principal and interest was outstanding as of January 2018. The judgment also referred to a December 2015 letter stating a balance of €2,656,023.80.
AIB Mortgage Bank gave written consent on 31 January 2018 for Allied Irish Banks to enforce the mortgage and seek possession. A further demand was sent to Mr McCabe on 7 February 2018, after that consent. It named both banks, despite the judgment’s account that no debt was owed to AIB Mortgage Bank.
The judge said it was not necessary to decide whether sending a demand counted as a step to enforce because any defect had been cured by the later consent and demand. He said he tended to agree with the defendant’s interpretation that a formal demand could be regarded as an enforcement step. However, he concluded that the sequence in 2018 complied with the mortgage’s consent requirement. The consent was referred to in the special summons, so the defendant was on notice it had been given.
The judge also accepted the bank’s submission that naming both banks did not invalidate the February 2018 demand. Its terms clearly called in the principal, and the defendant had provided no evidence of actual confusion or prejudice. The debt was not denied.
The court concluded that a proper demand had been issued by 7 February 2018, before the proceedings began. With no other defence advanced, it found the bank entitled to the orders sought. The judge said he would hear the parties about the length of any stay on the possession order; the judgment did not specify a stay period.