The Court of Appeal has dismissed Patrick Brady and Margaret Brady’s appeal against a High Court order granting Leeds Building Society possession of a jointly owned property in County Cavan.
The High Court made the possession order on 2 November 2015. The couple appealed, but did not pursue the grounds in their original notice of appeal. Instead, they relied on a claim that they had cancelled the loan contract under European consumer rules on contracts negotiated away from business premises.
The Court of Appeal said that argument was raised for the first time on appeal. The cancellation notice was served on Leeds in July 2016, about eight months after the High Court hearing. The court held that the couple could not rely on an action taken after that hearing to challenge the order. It dismissed the appeal on that procedural ground.
The court also addressed the cancellation argument on its merits. It said the rules were intended to cover certain consumer contracts made during a trader’s visit to a consumer’s home or workplace, or during an excursion organised by a trader. The judgment recounted that Mr Brady met a mortgage broker while walking in Dublin, received a loan offer shortly afterwards, and that both defendants later signed the mortgage documents in the presence of their solicitor.
On those circumstances, the court concluded that the loan did not fall within the relevant cancellation rules. It said Leeds was not required to provide a cancellation notice or form, and that the purported cancellation had no legal effect. The court expressly left open whether a mortgage over immovable property could fall within a separate category in the regulations concerning rights relating to immovable property.
Leeds had sought possession under a mortgage securing a €760,000 loan. The judgment said the defendants did not dispute that the loan had fallen into arrears. The Court of Appeal’s decision dismissed the appeal; it did not determine the separate question it had left open.