The Court of Appeal has dismissed Patrick and Patricia Raftery’s appeals against a High Court order requiring them to give Irish Bank Resolution Corporation (IBRC) possession of a property in County Roscommon. The order concerned a mortgage originally granted in favour of Irish Nationwide Building Society (INBS), whose successor in title was IBRC.
The High Court made the possession order on 3 October 2012 after finding that IBRC was entitled to possession of the property in Folio 1769F. The Rafertys appealed. In a judgment delivered on 17 July 2019, Mr Justice Michael Peart, with whom the other members of the Court of Appeal panel sat, concluded that the trial judge’s findings were supported by the evidence and dismissed the appeals.
Patricia Raftery had argued that the property was her family home and that she had not received independent legal advice about the mortgage. The appeal also challenged the finding that the home had been transferred into the couple’s joint names on the same date the mortgage was executed, 12 November 1992.
The Court of Appeal said the trial judge had evidence that both appellants signed the loan application and accepted the loan offer, and that both signed the mortgage and transfer documents dated 12 November 1992. Patricia Raftery had also testified that she executed the documents in the presence of the solicitor and understood the home was being put into joint names. The appeal court held that the trial judge was entitled to accept that evidence and to find that the transfer and mortgage were executed on the same date.
The court noted that the folio recorded Patrick Raftery as sole registered owner until the transfer into joint names was registered on 12 December 1995. The mortgage had been registered as a burden on the folio on 5 September 1994. The court said the mortgage could be registered against the interest of the sole registered owner and that the later registration of joint ownership left that ownership subject to the existing burden.
Patricia Raftery had sought to introduce correspondence on appeal which, she argued, supported a different timing for the transfer. The court had already refused that application in April 2019, finding there was no satisfactory explanation for the delay and that the evidence could have been obtained with reasonable diligence before trial. The appeal therefore proceeded on the evidence heard by the High Court.
The appeals against the dismissal of counterclaims concerning the alleged undervalue sale of licensed premises were not pursued at the appeal hearing. The court did not address them. It also said it was unnecessary to decide a separate question about whether Patricia Raftery was estopped from disputing when the transfer was executed.