The High Court has refused to grant summary possession of a family home in Kilbane, County Clare, on the basis of two later loans, ruling that they were not secured on the property without the non-owning spouse’s prior written consent.
In a judgment delivered on 3 June 2025, Ms Justice Stack also directed that the possession application concerning a separate 2003 loan should proceed to a further hearing on affidavit. She did not grant possession or determine the outstanding amount due on that loan.
Everyday Finance Limited seeks possession of the unregistered property, which Thomas Marsh owns and which has been the family home of Mr Marsh and his wife, Linda, since their marriage in 2004. The application concerns three loans. The first, for €63,500, was made to Mr Marsh in 2003 under a mortgage executed in 1999. The second was for €64,000 in 2005, and the third, also made in 2005, was for €80,000 and identified a separate property in O’Brien’s Bridge as security.
The judge found that the 1999 mortgage did not secure the second and third loans on the family home. Although Mrs Marsh was a co-borrower on those loans, she did not own the family home and had not given the required prior written consent to using it as security. The third loan’s stated security was the separate O’Brien’s Bridge property. The court made no finding that either spouse could not be liable for those loans as unsecured debts. It ruled that any proceeds from a future sale of the family home could not be used to pay them.
For the first loan, the court found that Everyday had not provided sufficient evidence to establish its ownership of the loan or its entitlement to the mortgagee’s interest. The assignment documents were heavily redacted or incomplete, leaving the transfer of the relevant mortgage unclear. The judge also said the mortgage appeared not to have been stamped to cover the additional advance. She directed that arrangements for the stamp duty be addressed before the matter proceeds.
The defendant may file evidence on whether the first-loan possession claim is time-barred and on when the right to possession arose. Everyday may file documents proving its title to the loan and mortgage. Justice Stack ruled that these issues could continue on affidavit and did not need to be sent to a plenary hearing. She reserved further directions, including the question of an earlier Circuit Court order that referred to a facility letter date she could not identify.
The judgment does not decide whether Everyday will ultimately obtain possession on the first loan. It also leaves any claim to recover the second and third loans as unsecured debts for separate proceedings.