The High Court has upheld Circuit Court orders granting AIB Mortgage Bank and Allied Irish Banks plc possession of a Galway home, while leaving open whether enforcement should be stayed.
In a judgment delivered on 31 October 2017, Ms Justice Faherty dismissed Gerard Cosgrove’s appeal against orders made on 3 March 2016. Those orders allowed the banks to amend their claim to say the property was the defendant’s principal private residence, dismissed his application to strike out the case and his discovery motion, and granted possession to the banks.
The dispute concerned 95 Seacrest, Knocknacarra, Galway. The banks’ evidence was that they offered Cosgrove a €435,000 loan in January 2008 to buy the property, secured by a charge. They said he fell behind on repayments and owed €488,502.30, including arrears of €82,025.47, as of 26 September 2013. The banks demanded repayment and possession that autumn, then began proceedings in November 2013.
Cosgrove argued that the Circuit Court lacked jurisdiction and that the mortgage terms were unfair, including provisions concerning securitisation. He also challenged the banks’ failure to provide documents and the absence of their signatures on the mortgage contract. The judge found that the Circuit Court had jurisdiction when it made the possession order, following the amendment to the claim. She held that the discovery sought was not necessary or relevant to a defence and that the securitisation provisions did not prevent the banks from seeking possession.
The judge also found that the mortgage was entered into face to face, so the Distance Marketing Regulations did not apply. She accepted that the defendant’s spouse had signed the relevant consents under the Family Home Protection Act 1976 after receiving advice from a solicitor. The court was not persuaded by the grounds advanced against the possession order. It noted that Cosgrove did not deny borrowing the money, agreeing to the charge or being in default.
The High Court therefore left the Circuit Court orders standing. It did not decide the stay question in this judgment: because the property was the parties’ family home, the judge said she would hear submissions on whether execution or enforcement of the possession order should be stayed.