The High Court has granted Start Mortgages DAC an order for possession of the mortgaged property in its case against Christopher and Elizabeth Cussen, dismissing their appeal from a Circuit Court possession order. The court refused a stay, but said the order cannot be executed without a fresh motion in the Circuit Court and that further appeal rights apply to the decision on that motion.
Mr Justice Max Barrett delivered judgment on 27 July 2021 after a rehearing of the case. The first defendant did not appear at the hearing; Elizabeth Cussen represented herself. The judge said the evidence established repeated missed repayments and that the lender had proved its case on the balance of probabilities. The court found the mortgage had been assigned to Start Mortgages and that it was entitled to seek possession.
The loan was arranged through Permanent TSB in 2007 and secured by a mortgage over property in the south-east of Ireland. The judgment records that repayments fell into default from 2011. There was one payment in 2015, none in 2016, one in 2017 and no payments after that. The court said the arrears had grown to more than €60,000, while noting it was not deciding the exact sum owed or whether legal expenses had been correctly added to the mortgage account.
Elizabeth Cussen raised numerous objections, including challenges to the Circuit Court’s jurisdiction, the lender’s entitlement to bring the case, alleged unfair terms, undue influence, human-rights concerns and alleged non-compliance with mortgage-arrears rules. The judge rejected the arguments that bore on the possession application. He said the evidence showed the required moratorium period had been observed. He did not determine whether there had been a data-protection breach or whether legal expenses had properly been applied; he said those matters did not decide the possession application. A claimed difficulty exercising a right of way was also left for another day.
The court did not grant a stay. Before possession can be executed, Start must bring a fresh motion in the Circuit Court, which must be heard by a judge. The judgment says an appeal is available from that decision. Justice Barrett estimated that, depending on how matters proceed, enforcement could be 18 to 24 months away. He encouraged the defendants to engage with Start and the Money Advice and Budgeting Service, but those observations do not suspend the possession order.