THE HIGH COURT
[2025] IEHC 333
RECORD NO. 2024/228CA
BETWEEN
PEPPER FINANCE CORPORATION (IRELAND) DESIGNATED ACTIVITY COMPANY
PLAINTIFF
AND
MARTIN O'REILLY
DEFENDANT
JUDGMENT of Mr. Justice Mark Heslin delivered on the 5th day of June 2025
Introduction
1. On 16 July 2024, the Circuit Court made an order that the plaintiff recover from the defendant possession of property comprised in folio 858L County Cavan ("the property"). The defendant has appealed and (per Section 37 of the Courts of Justice Act 1936) this appeal involves a de novo hearing of the plaintiff's application for possession.
2. I am grateful to Mr. Neuman BL who provided written and oral submissions on behalf of the plaintiff. The defendant represented himself at the hearing and made his position very clear, by means of affidavits and submissions, written and oral.
3. Before looking at all of the salient facts disclosed in the affidavit evidence, it is useful to note certain legislative provisions and legal principles which are of particular relevance, given that the property comprises of 'registered' land and the plaintiff is the owner of the charge registered as a burden on the defendant's folio.
1964 Act
4. In this application, the plaintiff seeks to exercise rights under the Registration of Title Act, 1964 (the "1964 Act"), s. 62(1) of which provides:
"A registered owner of land may, subject to the provisions of this Act, charge the land with the payment of money either with or without interest, and either by way of annuity or otherwise, and the owner of the charge shall be registered as such."
Conclusiveness of the Register
5. In Tanager Designated Activity Company v. Kane [2018] IECA 352 ("Tanager") the Court of Appeal considered certain questions of law, the first being:-
"1) does the defendant have an entitlement to challenge the registration of the plaintiff as owner of the charge at entry no. 7 on the defendant's folio in these proceedings having regard to the conclusiveness of the Register pursuant to s. 31 of the 1964 Act?"
The charge registered as a burden
6. The Court of Appeal answered that question in the negative. In the present case, exhibit 'PR2' to the affidavit sworn on 2 August 2022 by Mr. Philip Reynor, solicitor for the plaintiff, comprises a copy of folio 858L. The first entry in 'Part 3' (which concerns "Burdens") is dated 7 December 2010 and states:
"Charge for present and future advances repayable with interest.
KBC Bank Ireland plc is owner of this charge.
Note: The ownership of this charge has been transferred.
See Entry no. 2"
Plaintiff is the registered owner of the charge
7. The second entry in Part 3 is dated 4 March 2022 and states:
"Pepper Finance Corporation (Ireland) Designated Activity Company is the owner of the charge registered at Entry no. 1"
8. Thus, this Court has conclusive evidence that the plaintiff is the owner of the charge registered in the Land Registry against the defendant's property. Later, I will refer to the terms of the charge in question.
S.62 of the 1964 Act
9. Returning to the 1964 act, s. 62(7) provides:
"When repayment of the principal money secured by the instrument of charge has become due, the registered owner of the charge or his personal representative may apply to the court in a summary manner for possession of the land or any part of the land, and on the application the court may, if it so thinks proper, order possession of the land or the said part thereof to be delivered to the applicant, and the applicant, upon obtaining possession of the land or the said part thereof, shall be deemed to be a mortgagee in possession" (emphasis added).
Summary application
10. As pleaded in the Civil Bill, which issued on 2 December 2019, Section 62(7) of the 1964 Act is the statutory basis upon which the plaintiff in this case seeks possession of the property. As seen above, s. 62(7) explicitly permits a registered owner of a charge to seek possession in a "summary manner".
11. The significance and effect of s. 62 (7) and the nature of summary applications were explained by Ms. Justice Baker in the Supreme Court's decision in Bank of Ireland Mortgage Bank v. Cody [2021] IESC 26 ("Cody") wherein the learned judge stated:
"15. The jurisdiction conferred by that section applies to proceedings for possession by the registered owner of a charge once monies secured by the charge have become due. The subsection does not identify what is meant by the making of an application "in a summary manner", but the Court is given a discretion, if it so thinks proper, to order possession of the land to be delivered up, the consequence whereof is that the owner of the charge thereupon becomes a mortgagee in possession.
16. In Bank of Ireland v. Smyth [1993] 2 IR 102, [1993] ILRM 790, Geoghegan J. rejected the notion that s. 62(7) confers a wide discretion which enables a court to refuse an application for possession on grounds of sympathy. He thought the words "may, if it so thinks proper" simply mean that the court should apply equitable principles in considering the application for possession, but not "sympathetic factors" and thus ensure that the application is made bona fide with a view to realising the security:
"The words 'may, if it so thinks proper' in s. 62, sub-s. 7 mean no more, in my view than, that the court is to apply equitable principles in considering the application for possession. This means that the court must be satisfied that the application is made bona fide with a view to realising the security." (p. 111)
17. The procedure was explained in the decision of this Court in Irish Life and Permanent v. Dunne [2015] IESC 46, [2016] 1 IR 92, in which it held that any court seeking to make an order for possession under s. 62(7) must first ask itself whether, as a matter of law, it can properly be said that the monies are secured and are due". (emphasis added).
3 questions
12. Guided by the foregoing principles, in Start Mortgages v. Connaughton [2023] IEHC 364, I posed 3 questions, which also arise in the present case, namely:
(i) are the relevant monies secured (e.g. by way of mortgage)?
(ii) has there been default, resulting in the secured monies having become due? and;
(iii) is the application made bona fide with a view to realising the security?
Relevant facts
13. Armed with the foregoing legal principles, I now turn to look at the facts, with a view to answering these questions. Having carefully considered the pleadings, affidavits, and exhibits, the relevant facts can be summarised as follows.
Loan
14. The defendant made an application for and was granted loan facilities by the plaintiff's predecessor in title, KBC Bank Ireland Plc. (the "Bank"). The relevant letter of loan offer is dated 7 July 2005 and was accepted in writing by the defendant, on 20 July 2005. A copy of same comprises exhibit "DL4" to the affidavit sworn, on 25 November 2019, by Mr. Darragh Langan, solicitor for the Bank.
Mortgage
15. The loan was repayable by monthly instalments, subject to the terms and conditions set out in the loan offer. As stated therein, the loan (as well as interest, and all present and future liabilities of the defendant to the Bank) was to be secured by way of a first legal mortgage over the property. By deed of mortgage and charge, dated 23 November 2005, made between the defendant (as "Borrower") and the Bank (as "Lender") the defendant's entire interest in the property was charged as security for the repayment of the defendant's liabilities.
On demand
16. A copy of the mortgage comprises exhibit 'DL3' to the affidavit sworn, on 25 November 2019, by Mr. Darragh Langan, solicitor for the Bank. Clause 1 of the mortgage begins:-
"The Borrower hereby covenants with the Lender that he shall on demand pay to the Lender the balance which now is or shall for the time being become due or owing by the Borrower to the Lender (including the monies advanced on foot of the Letter of Offer specified at 2 hereunder) on any account or accounts or in any manner (hereinafter called "the Secured Monies") when the same becomes due ..." (emphasis added).
Default
17. By virtue of clause 12 of the mortgage, the defendant agreed that the secured monies "shall immediately become payable" on the occurrence of one of a number of events, detailed at (i) to (xi) therein. The first of these is stated to be:-
"(i) If the borrower should default in the performance of any of the covenants terms or conditions contained in this Mortgage or in the Letter of Offer or in any loan or other agreement and if such default continues unremedied for the period of seven days" (emphasis added).
18. The defendant breached the covenants in the mortgage and the conditions of the letter of offer and failed to discharge the monthly instalments due to the Bank.
CCMA
19. It is common case that the provisions of the Consumer Protection Code and the Central Bank's Code of Conduct on Mortgage Arrears ("CCMA") were complied with. A completed Standard Financial Statement ("SFS") and supporting documents were received from the defendant, on 10 September 2013. Based on same, it was concluded that the defendant could not meet the terms of any alternative repayment arrangement and that his mortgage was unsustainable.
MARP
20. By letter dated 24 March 2014 the defendant was notified, in writing, that his mortgage was unsustainable and it was confirmed that the protections of the Mortgage Arrears Resolution Process ("MARP") no longer applied to him. The defendant was put on notice of a range of options including voluntary sale of the property and/or 'trading down'; voluntary surrendering the property; his right to consult a personal insolvency practitioner; his entitlement to seek independent advice from a participating accountant in the mortgage arrears information and advisory service; and the prospect of legal proceedings.
21. It is common case that the defendant had ample time to consider these options, but failed to avail of any of them. The protections of the MARP no longer apply. The defendant has been provided with bank statements on an annual basis in respect of his mortgage account showing all payments and credits made. Exhibit "DL5" to the grounding affidavit comprises copy statements of account covering the period, from 22 November 2005 to 1 November 2019, detailing the defendant's indebtedness.
Demand for repayment
22. On 17 October 2019, the Bank wrote a letter to the defendant at the property entitled "FINAL DEMAND FOR MORTGAGE BALANCE". Having stated that the then arrears were €84,478.38 and that the mortgage balance (inclusive of arrears) stood at €173,949.26, the letter proceeded to state:-
"We are writing to you regarding the arrears balance on your mortgage account.
As the arrears balance remains outstanding and you failed to make acceptable proposals to address same, we hereby demand the payment by you of the entire sum due on foot of the mortgage account within the next 10 business days...
If this payment is not discharged within 10 business days we will instruct our solicitors to immediately issue legal proceedings against you for the recovery of the said property by the Bank" (emphasis added).
23. In an affidavit sworn, on 12 July 2024, Mr. Reynor, averred inter alia:
"4. I say and am advised by the plaintiff that as of 12 July 2024, the mortgage outstanding to the plaintiff by the defendant pursuant to the loan facility and the mortgage amounted to €206,491.16, including arrears of €150,166.09. I say that the current monthly instalments are €839.78."
24. The defendant has never taken issue with the fact of his default, or the calculation of his indebtedness. Indeed, at para. No.3 of the defendant's affidavit, sworn on 21 June 2024, he avers, inter alia, that:
"There have been no repayments since 2011 some 13 years ago".
Demand for possession
25. By letter dated 31 October 2019, the defendant was called upon to surrender up possession of the property. The said letter comprises exhibit "DL7" to the grounding affidavit, wherein Messrs. Eversheds Sutherland Solicitors stated inter alia:
"Our client wrote to you on 17 October 2019 demanding full payment of €173,949.26 being the balance then outstanding on your mortgage account. We have been informed by our client that you have not discharged this amount and hereby require and demand possession of the property within ten days from the date hereof.
If you have any proposals to make in the matter, you should contact our client's Arrears Support Team directly... You are also recommended to seek advice from an independent advisor or the Money Advice and Budgeting Service (MABS) on their helpline [number] or [website] if you are having difficulty regarding payment to your mortgage account. Such advice may include recommending selling your property, trading down or alternatively re-financing...
If the full mortgage balance is not discharged or vacant possession of the premises is not delivered up to our client within ten days, our client shall issue legal proceedings against you for the recovery of possession of the property..." (emphasis added).
Possession required to facilitate sale
26. It is common case that the defendant did not deliver up possession and will not do so, absent a court order. At para. 17 of the grounding affidavit, the following averments are made:
"17. I say that the plaintiff is desirous of exercising its power of sale arising under the mortgage and under law, which power has become exercisable by reason of the defendant's continuing default in discharging the monies properly due and owing to the plaintiff in order to recover the monies due to the plaintiff. I say, however, that the plaintiff's power of sale will remain ineffective, and the property will remain unsaleable, so long as the defendant continues to wrongfully withhold possession of the property from the plaintiff...
...
19. I say and believe that an order for possession of the property, in order to facilitate the sale of same by the plaintiff, is a proper and expedient manner for the plaintiff to recover the monies secured by the mortgage."
Refusal to engage
27. In an affidavit sworn on 16 September 2021, Mr. Langan, solicitor for the Bank, averred at para. 7 that:
"[7]...despite the plaintiff's attempts at contact, the defendant has failed, refused and neglected to respond or engage in any way with the plaintiff to address the arrears position on his mortgage loan account. I say that on 23 August 2021 a representative from the plaintiff contacted the defendant by telephone to seek engagement from him and to advise that it was their intention to progress with the within legal proceedings on the next court date. I say that the defendant refused to engage with the plaintiff's representative and refused to answer any questions put to him on the call.
8. I say that in the absence of engagement the plaintiff cannot consider any ARA or restructure for the defendant's account. I further say that as the defendant has not made a payment to his mortgage loan account in over eight years he is not demonstrating any intention or financial capability to work with the plaintiff to address the significant arrears on his account. I say that the defendant's mortgage loan account is wholly unsustainable and his account position continues to deteriorate each month. For the foregoing reasons the plaintiff believes it has no alternative but to seek an order for possession." (emphasis added).
Refusal of access
28. A receiver was appointed over the property, on 4 February 2022, and the relevant Deed of Appointment comprises exhibit "CL1" to the affidavit sworn on 14 February 2024 by Ms. Caroline Loftus, the plaintiff's Senior Operations Manager who makes inter alia the following averments:
"6. I say, believe and am advised that when the receiver's agent called to the property on the 29 March 2022 the property was occupied and the occupier identified herself as a tenant. I say that when the receiver's agent requested access to the property, the tenant refused access on the grounds that any requests for access should be directed to her landlord, the defendant. I say that further attempts were made by the receiver's agent to access the property on the 8 July 2022 to carry out an inspection of the property and a BER assessment. I say and am advised that on that occasion the tenant once again refused access to the property and continued to refer the agent to speak with her landlord, the defendant."
29. The receiver was subsequently discharged, in circumstances where the defendant appears to have gone back into possession of the property.
Transfer of loan facility and security (Bank to the plaintiff)
30. On 4 February 2022, a Deed of Transfer was executed by, inter alia, the Bank and the plaintiff as seller and buyer, respectively ("the Transfer Deed"). By virtue of the Transfer Deed the Bank transferred, to the plaintiff, its entire interest in the loan facility and security, which are the subject of these proceedings. A copy of the Deed of Transfer, and relevant extracts from the schedule to same, comprises exhibit "PR1" to the affidavit sworn on 2 August 2022 by the plaintiff's solicitor, Mr. Reynor.
31. On 2 August 2022, Mr. Reynor made inter alia the following averments with respect to redactions in the Transfer Deed:
"7. I say that information relating to borrowers who are not parties to the within proceedings has been redacted entirely. This has been redacted in part for reasons of commercial sensitivity, restrictions imposed by the Data Protection Acts 1988 - 2018, irrelevance and bank/client confidentiality. I say that pages in the schedule which are entirely redacted and wholly unrelated to the within proceedings have not been exhibited in ease of this honourable court."
Notice to the defendant ('goodbye' letter)
32. By letter dated 8 February 2022, the Bank wrote to the defendant stating inter alia:
"Your KBC mortgage account number with KBC Bank Ireland Plc set out below:
· 327907/1
(Your "Loan Account")
Dear Mr. Martin O'Reilly,
IMPORTANT INFORMATION ON YOUR LOAN ACCOUNT
This letter is to advise you that your Loan Account has been transferred to Pepper Finance Corporation (Ireland) DAC ("Pepper") and to let you know how to contact Pepper should you need to get in touch. You may need to update how you make repayments so we have included detailed instructions in this letter...
We are writing to confirm that the Transfer date was the 4th February 2022 (the "Transfer Date"). On the Transfer Date your Loan Account transferred to Pepper... In this regard, we attach a Notice of Assignment for Mortgage Assets dated the 8th February 2022. Pepper is an authorised retail credit firm regulated by the Central Bank of Ireland.
You will continue to be afforded the same legal and regulatory protection.
From the Transfer Date all relevant details relating to your loan account were transferred to Pepper. These details will be used by Pepper for the continued administration of your loan account and for related legal and regulatory purposes...
Your Loan Account will remain in place until all amounts payable have been repaid and your obligations to repay the outstanding amounts are now owed to Pepper from the Transfer Date...
You will also shortly receive a letter from Pepper. As the Transfer Date has now passed and your loan account is now held with Pepper, you will need to direct all future enquiries in relation to your loan account to Pepper..." (emphasis added).
33. The defendant does not suggest that he did not receive this 'goodbye' letter from the Bank, which also enclosed a 'Notice of Assignment', addressed to the defendant. This Notice specified the defendant's loan account number and informed him that the Bank:
"...have assigned absolutely to Pepper all of our rights, title and interest (past, present and future) in and to the security documents (if any) (the "Security") and facility letters (the "Underlying Loan Agreements") and guarantees (if any) relating to your loan account.
Our duties and obligations under the Security and Underlying Loan Agreements have been assigned and/or assumed and therefore we are no longer responsible to you for any such duties and obligations.
With immediate effect from the date of this letter, you should perform all duties and obligations under the Underlying Loan Agreements in favour of Pepper and remit to Pepper any and all sums due and owing under the Underlying Loan Agreements (whether such sums became or become due and owing under the Underlying Loan Agreements before or after the date of this letter), such sums to be transferred directly to such bank account as shall be notified to you..."
Notice to the defendant ('hello' letter)
34. By letter dated 9 March 2022, the plaintiff wrote to the defendant in following terms:
"IMPORTANT INFORMATION REGARDING YOUR MORTGAGE
Re: Your mortgage loan account with KBC Ireland Plc: 327907/1 (your "Loan")
Your new Pepper mortgage account number(s): refer to Table 1.1 within body of letter.
Dear Mr. M. O'Reilly,
As detailed in recent correspondence to you by KBC Ireland Plc ("KBC"), KBC confirmed that on 4th February (the "Transfer Date") a loan portfolio, including the loan(s) held under your Loan Account and all related facility letters, guarantee(s) (if any), security documents and rights, transferred to Pepper Finance Corporation (Ireland) DAC ("Pepper")...
As of the Transfer Date... Pepper became the legal title holder and servicer of your loan. Pepper is your new lender of record.
This letter is to welcome you to Pepper and to provide you with important information about Pepper and your Loan including updates to how you can make payments and to let you know how to contact Pepper should you need to get in touch..." (emphasis added).
35. Table 1.1 specified inter alia the defendant's previous KBC loan account (327907/1) and new Pepper account number (11105083) and identified the next scheduled payment (€839.78). The last payment in a similar amount was the sum of €853.97 paid on 28 May 2013 (see internal pg. 19, of 29, of the statement of account issued by the Bank to the defendant which comprises exhibit "DL5" to the grounding affidavit). The plaintiff does not suggest that he did not receive this 'hello' letter.
Registration of the plaintiff as owner of the charge
36. Para. 9 of the affidavit sworn on 2 August 2022 by Mr. Reynor, solicitor for the plaintiff, contains the following averments in relation to the transfer, by the Bank to the plaintiff, of all its rights in the charge registered as a burden on the plaintiff's folio:
"9. On 4 February 2022, the bank executed several Forms 56, one of which concerned the charge the subject of these proceedings. By that particular Form 56, the Bank transferred all its legal rights, title, interest, estate and entitlement (past and present) in the charge to the applicant. The Form 56 was lodged for registration with the Property Registration Authority and the application has now been completed so that the Applicant is now the registered owner of the charge. I am advised and believe that the registration of the applicant as owner of the relevant burden on the Folio is conclusive by reason of Section 31 of the Registration of Title Act, 1964. I beg to refer to an updated copy of the Folio the subject matter of these proceedings." (emphasis added).
Substitution order
37. The foregoing affidavit was sworn in the context of an application by the plaintiff to be substituted, in place of the Bank, as plaintiff in the Circuit Court proceedings. The matter came before the County Registrar, on 12 September 2022, and the Circuit Court's Order, perfected on 14 September 2022, provides, in relevant part:
"THE COURT DOTH ORDER:
1. That the title of the plaintiff herein be amended to read Pepper Finance Corporation (Ireland) DAC;
2. That all future proceedings herein be carried on between Pepper Finance Corporation (Ireland) DAC as plaintiff and Martin O'Reilly as defendant;
3. That the need to re-serve the within proceedings upon the defendant be dispensed with.
THE COURT DOTH FURTHER ORDER:
That a copy of this Order be served on the defendant and the defendant be informed in writing of the following:
1. That a copy of the affidavit and exhibits grounding this application are available on request;
2. That the defendant may make an application to court, on notice, to set aside this Order;
3. That the defendant be informed of their entitlement to contest the said transfer to Pepper Finance Corporation (Ireland) DAC." (emphasis added).
38. It is common case that the defendant did not challenge the substitution of the plaintiff for the Bank in the Circuit Court proceedings.
The 'proofs' for a plaintiff
39. As Woulfe J. made clear in Start Mortgages DAC v. Ryan [2021] IEHC 719 ("Start v. Ryan"), the 'proofs' required in an application of this type are straightforward. At para. 21, the learned judge explained them as follows:
"21. At para. 49 of her judgment in Cody, Baker J. stated that the owner of a charge who seeks to obtain possession pursuant to s.62(7) of the 1964 Act has to prove two facts: (a) that the plaintiff is the owner of the charge; and (b) that the right to seek possession has arisen and is exercisable on the facts. The summary process is facilitated by the conclusiveness of the Register as proof that the plaintiff is the registered owner of the charge and this is a matter of the production of the Folio, and, as the Register is by reason of s.31 of the 1964 Act conclusive of ownership, sufficient evidence is shown by that means: see the discussion in the Court of Appeal judgment in Tanager DAC v. Kane [2018] IECA 352. That judgment held that the correctness of the Register cannot be challenged by way of defence in summary possession proceedings, and that a Court hearing an application for possession pursuant to s.62(7) of the 1964 Act is entitled to grant an order at the suit of the registered owner of the charge, or his or her personal representative, provided it is satisfied that the plaintiff is the registered owner of the charge and the right to possession has arisen and become exercisable.
22. Order 5B requires a plaintiff to establish a prima facie case on the affidavit evidence for an order for possession, and it is then necessary for the Defendant to proffer evidence or argument sufficient to establish a credible defence."
40. Having carefully considered the evidence, guided by the foregoing principles, I am satisfied that the plaintiff has established a prima facie case for an order for possession, in circumstances where the 3 questions, posed earlier, can be answered as follows:
(1) The plaintiff is the registered owner of the charge (i.e. securing the monies in question, by way of a mortgage on the property comprised in Folio 858L);
(2) There has been default by the defendant, resulting in the secured monies having become due (i.e. the plaintiff's right to seek possession has arisen and is exercisable on the facts, having regard to the terms of the loan and mortgage agreements which the defendant entered into); and
(3) The plaintiff's application is made bona fide with a view to realising the security (i.e. to facilitate a sale).
The defendant's position
41. Recalling the guidance in Start v. Ryan, it is necessary to look at the arguments made by the defendant, in opposition to the plaintiffs claim, to see whether a credible defence has been established. Before doing so, it is appropriate to note what is not in dispute.
42. The defendant does not dispute (i) that he sought and obtained loan facilities, which he accepted in writing; (ii) that the relevant sum was advanced to and received by him; (iii) that his borrowings were secured by way of mortgage, which he signed; (iv) that he failed to repay the monies borrowed and an act of default arose; (v) that he failed to engage with the lender in relation to addressing the mortgage arrears; (vi) that he received a letter demanding repayment of the monies secured by the mortgage; (vii) that he failed to repay the sum demanded; (viii) that he received a letter demanding possession of the property; (ix) that he failed to deliver up possession of the property; (x) that he neither proposes to make a payment, nor to surrender possession; and (xi) he emphasises that he has not made any payment since 2011.
43. Having carefully considered the affidavits and submissions (written and oral) furnished by the defendant, I am satisfied that the plethora of arguments raised by him can be addressed under 13, somewhat overlapping, headings, a summary of which is as follows:
1. The defendant was "wrongly ambushed" and there has been a denial of his right to be heard;
2. There is no "chain of title" to the plaintiff in respect of the defendant's Loan facility and related security;
3. The defendant gave his original lender, IIB, "no permission to transfer" his loan and mortgage;
4. There has been "no absolute transfer" and assignment to the plaintiff of his Loan and mortgage;
5. The plaintiff failed to execute a "Statutory Declaration", drafted by him, regarding proof of ownership of his loan facility and security;
6. The provisions of the Supreme Court of Judicature Act 1877 were not complied with;
7. The plaintiff is Credit Service Provider and cannot enforce a credit agreement;
8. The plaintiff's evidence is "inadmissible hearsay";
9. The defendant is entitled to Discovery of documents for reasons given by him;
10. The defendant says that he did not pay the sum of €5,426.14;
11. Reliance on Start Mortgages DAC v Ramseyer [2024] IEHC 329;
12. Reliance on Fannon v. Ulster Bank Ireland DAC & Ors [2024] IEHC 51; and
13. Reliance on Pepper Finance Corporation (Ireland) DAC v Moynihan [2024] IEHC 625.
1. "Wrongly ambushed"
44. The first argument made by the defendant in oral submissions was to say: "I should not be in this court. I was wrongly ambushed in the Circuit Court". The essence of this argument is that, by not agreeing to his request for an adjournment, the plaintiff: "denied me my right to stand in court and defend myself". The defendant maintained that, whereas he had previously agreed to adjournments at the plaintiff's request, when he sought an adjournment it was refused. The defendant submitted that he was "out of the country" on the day of the Circuit Court hearing and suggested that his rights had been prejudiced as a result.
45. Bearing in mind that the Circuit Court hearing took place on 16 July 2024, the following uncontested averments are made in the affidavit sworn on 12 July 2024 by Mr. Reynor, the plaintiff's solicitor:
"5. I say and believe that the defendant, and the occupiers of the mortgaged property were notified of the upcoming hearing date, by letters dated 10 April 2024 issued by the plaintiff's solicitors. I beg to refer to copies of the said letters...
6. I say that by email of 8 July 2024 the defendant emailed the plaintiff's solicitors, Eversheds Sutherland LLP, requesting an adjournment of the matter. I say that by letter of 12 July 2024, sent to the plaintiff by email, Eversheds Sutherland LLP responded to advise that the matter was proceeding on the 16 July 2024 and the plaintiff was seeking an order for possession of the property. I beg to refer to copies of the said email and letter..." (emphasis added).
46. Having regard to the foregoing, the defendant was given over 3 months' notice of the hearing date, but waited until the '11th hour' to seek an adjournment, which was declined. In the circumstances, his decision to be "out of the country" rather than present in court, on 16 July 2024, cannot conceivably be viewed as a denial of his rights.
47. Furthermore O. 36, r. 33 of the Rules of the Superior Courts allows a party to apply to seek to set-aside a decision made in their absence. There being no equivalent order in the Rules of the Circuit Court, this was a route open to the defendant He never sought to exercise any such entitlement. Instead, he chose to appeal the Circuit Court's decision, as was his right, and he participated fully in the hearing before me. Thus, there was no "ambush" and no denial of the defendant's rights. The first of the defendant's arguments is, with respect, entirely without merit. It certainly does not provide the basis for a credible defence.
2. "No chain of title"
48. The central argument canvased by the defendant in his affidavits and submissions, is that the plaintiff is not entitled to possession of his property because, according to him, there is "no chain of title". Central to this argument is the defendant's belief that, because he obtained the relevant loan from IIB Home Loans Limited ("IIB") and IIB does not appear in Part 3 Folio 858L as the first owner of the charge, the plaintiff's claim is fundamentally flawed. The defendant has articulated this in various ways, including the following:
"Why isn't IIB on the folio?"
(defendant's oral submissions)
"Because IIB is not on the Land Registry, there's no chain of title"
(defendant's oral submissions)
"I only gave the power of attorney to IIB Home Loans when I took out the loan; I've nothing to do with KBC or Pepper"
(defendant's oral submissions)
"the plaintiff has not established a cause of action"
(para. 6 of the defendant's affidavit, sworn 3 September 2022)
"My loan was taken out with IIB Home Loans Limited on the 23rd November 2005 by Deed of Mortgage with a limited Power of Attorney for a charge to be placed on my property. However no charge, as is clearly evident was placed by IIB Home Loans on my folio"
(para. no. 1 of the defendant's affidavit, sworn 21 June 2024)
49. With regard to this argument, it is not in dispute that when the defendant availed of the loan from IIB, his solicitor provided, with the defendant's consent and authority, an undertaking to register the charge as a burden on the defendant's property. A copy of the solicitor's undertaking, in the Law Society approved form (1999 edition), appears at exhibit "DL4" to the grounding affidavit sworn by Mr. Langan, solicitor, on 25 November 2019. The undertaking in question is dated 22 July 2005 as is the relevant 'Client Retainer and Authority', which was signed by the defendant in the solicitor's office.
50. As counsel for the plaintiff submits, registration does not happen instantaneously. In the present case, registration of the mortgage as a charge on the defendant's property did not occur until 7 December 2010 when a leasehold Folio 858L was created or 'opened'. There is certainly nothing unusual or untoward about this. Until the mortgage was registered as a burden, the lender was entitled to rely on the solicitor's undertaking.
51. It will also be recalled that the property at issue is leasehold and was 'carved out' of a larger folio of freehold property (Folio 26361 County Cavan). The foregoing is perfectly clear when one looks at Folio 858L of which there are two copies exhibited in these proceedings. The first comprises exhibit "DL2" to the grounding affidavit, which Mr. Langan swore on 25 November 2019. As is clear from Part 2 (Ownership), the entry records the defendant's absolute title and makes clear when registration took place namely:
"07-Dec-2010 Martin O'Reilly of 7B The Drumlins, Glenside Road, Cavan, County Cavan is full owner" (emphasis added).
52. Similarly, Part 3 (Burdens and Notices of Burdens) records that on the same date, namely, 7 December 2010, the relevant charge was registered, the entry being:
"07-Dec-2010 Charge for present and future advances repayable with interest. KBC BANK IRELAND PLC is owner of this charge."
53. Why IIB was not registered, on 7 December 2010, as owner of the charge is perfectly clear by reference to the events which took place before that date, specifically, in 2008 and 2009. For the purposes of this application I have the benefit of the following uncontroverted averments made in the grounding affidavit sworn by Mr. Langan, solicitor, on 25 November 2019:
"2. The loan monies secured on the property the subject of the proceedings herein were advanced by IIB Home Loans Limited, company number 129761. IIB Home Loans Limited converted to an unlimited company, IIB Home Loans, by way of special resolution passed on the 30 September 2008. A certificate of incorporation on re-registration as an unlimited company was issued by the Companies Registration Office on the 16 October 2008. IIB Home Loans, by way of special resolution dated the 2 October 2008 changed its name to KBC Mortgage Bank, company number 129761, and a certificate of incorporation on change of name was issued by the Companies Registration Office on the 24 October 2008. KBC Mortgage Bank transferred its banking business to KBC Bank Ireland Plc on the 26 June 2009 further to a Scheme of Transfer signed on the 26 February 2009 approved under s. 33 of the Central Bank Act, 1971 as evidenced by S.I. 125/2009. In this regard, I beg to refer to a true copy of the certificate of incorporation on re-registration as an unlimited company and certificate of incorporation on change of name, respectively dated the 16 day of October 2008 and the 24 day of October 2008, together with a copy of the Scheme of Transfer dated 26 February 2009... I further beg to refer to a copy of S.I. 125/2009 when produced...." (emphasis added).
54. In light of the foregoing uncontested evidence, it is clear that, as of December 2010, the owner of the charge over the defendant's property, and the sole party entitled to be registered as such, was KBC Bank Ireland Plc (see also the decision of Eagar J. in KBC v Woods [2017] IEHC 164).
55. For these reasons, there is no merit whatsoever in the defendant's argument that IIB should have been registered on his folio and/or that a failure to see IIB registered as owner of the charge, in December 2010, amounts to a missing 'link' in the 'chain of title'. This issue does not constitute a credible defence to the plaintiff's claim for possession.
3. "No permission to transfer"
56. The defendant also made the following submissions:
"I didn't give IIB any permission to transfer to KBC or Pepper"; and
"I never consented to KBC or Pepper putting a charge on my folio".
57. This argument is also expressed, as follows, in the affidavit sworn by the defendant, on 21 June 2024:
"No. 2 I say that KBC Bank Ireland Plc transferred (sic) that took place on the 04-March-2022 with a dealing no. D2022LR032508X to the plaintiff company was lawfully required to have my attested power of attorney, and did not, pursuant to the Power of Attorney Act 1996..."
58. With respect, this argument ignores the contents of para. 11 of the mortgage which the defendant (as "Borrower") executed, on 23 November 2005, in the presence of a solicitor. Para. 11 of the defendant's mortgage clearly states:
"11. It is hereby agreed and declared as follows:
...
(iii) The Borrower hereby acknowledges the lender's right, without any further consent from or notice to the borrower, to transfer the benefit of this Mortgage, the Mortgage loan and the Lender's mortgage security (including any insurance policy or policies of life or endowment term assurance) over the Mortgaged Premises to any person, company or corporation on such terms and the Lender may think fit, without any further consent from or notice to the Borrower or any other person or any consequential assurance or reassurance or release under such scheme where upon all powers and discretions of the Lender shall be exercisable by the transferee..." (emphasis added).
59. Having regard to the foregoing, this aspect of the defendant's opposition to the plaintiff's claim is also entirely devoid of merit.
4. "No absolute transfer"
60. With regard to the transfer from the Bank to the plaintiff and the acquisition by the latter of the charge over his property, the defendant made the following oral submissions:
"there has been no absolute assignment";
"I cannot find anywhere in the Transfer where there was an absolute transfer. I need proof of the assignment".
61. With respect, the defendant has long had this proof. One need only look at the very first page of the Transfer Deed, dated 4 February 2022 to see the following:
"1. In consideration of the payment by the Buyer of the Adjusted Purchase Price (the receipt of which is hereby acknowledge) the Sellers as legal and beneficial owners, free from Encumbrances and as the registered owners or, as applicable, the parties entitled to be registered as owners, hereby unconditionally, irrevocably and absolutely grant, convey, assign, transfer and assure onto the Buyer, subject to the subsisting rights of redemption of the Borrowers (including those listed at Part 3 of Schedule 1) and any Obligor and to the extent capable of assignment, all of their rights, title, interest and benefit (past, present and future) in and under each Underlying Loan, each Mortgage Asset and each of the finance documents and including, but not limited to, the following:
1.1 all right, title, interest, benefit and obligation of the Sellers in the Security Documents including without limitation to the mortgages, charges, security assignments and other Security Interests (including any other agreements to create or effect any of the foregoing) relating to the Underlying Loans, Finance Documents and Mortgage Assets and constituted by the documents listed in Schedule 1 hereto;
1.2 all right, title, interest, benefit and obligation of the Sellers in each Underlying Loan Agreement;
1.3 the benefit of and the right to sue on all covenants with and undertakings to the Sellers in each Security Document and the right to exercise all powers of the Sellers in relation to each Security Document..." (emphasis added).
62. Schedule no. 1, Part 1 is entitled "Security Documents and Guarantees" and contains the following unredacted entries:
External Loan I.D. |
Collateral I.D. |
Property address line 1 |
Property address line 2 |
Property address line 3 |
Property address line 4 |
Property address line 5 |
327907/1 |
370365 |
7B Glenside |
The Drumlins |
Cavan |
Co. Cavan |
Co. Cavan |
63. The foregoing comprises the defendant's account number and the full address of the mortgaged property.
64. Schedule no. 1, Part 2 is entitled "Underlying Loan Agreements" and contains the following unredacted entries:
External Loan I.D. |
Loan I.D. |
327907/1 |
722546 |
65. Again, the forgoing is the defendant's loan account number.
66. Schedule no. 1, Part 3 is entitled "Borrowers" and contains the following unredacted entries:
External Loan I.D. |
Customer first name |
Customer last name |
327907/1 |
Martin |
O'Reilly |
67. The "Buyer" described in the Transfer Deed was, of course, the plaintiff herein. The suggestion that the transfer and assignment was not absolute is simply not credible. The defendant's argument is utterly undermined by evidence to the contrary.
68. Quite apart from the contents of the Transfer Deed, this Court also has uncontroverted evidence of an absolute transfer and assignment, in the form of averments to that effect made by Mr. Reynor, solicitor for the plaintiff, in his affidavit sworn on 2 August 2022. Furthermore, the acquisition by the plaintiff of the entire interest in the charge created over the defendant's property is reflected in Part 3 of the Folio.
69. There is not only ample direct evidence of the plaintiff's ownership of the loan and security, there is significant corroborative evidence which the Court is entitled to accept in support of the plaintiffs claim in the same manner as was accepted by Mr. Justice Barr in KBC v Wilson [2019] IEHC 870 (see, in particular, para. 35). As counsel for the plaintiff submitted, if the relevant transfer was not absolute, it means that (i) the Bank; (ii) the plaintiff; (iii) a host of legal professionals; and (iv) the Property Registration Authority have all participated in an elaborate fiction, leading to the registration of the plaintiff as owner of the charge.
70. In short, it is simply not credible that the plaintiff did not acquire full ownership of the charge which is registered against the defendant's property (again, see Part 3 of Folio 858L, which comprises exhibit 'PR2' to the affidavit sworn, on 2 August 2022, by Mr. Reynor, solicitor for the plaintiff). As indicated earlier in this judgment, for the purposes of this application, the entry in the Land Registry to that effect is conclusive. Therefore, this aspect of the defendant's opposition to the plaintiff's claim is also entirely without merit.
5. "Statutory Declaration"
71. With reference to the title page of the Transfer Deed, which describes the instrument as "Global Deed of Transfer (excluding property)", the defendant asked, rhetorically, "What did they transfer if it excluded property?", his contention being that the charge over his property was not transferred. For the reasons set out above, the defendant is mistaken. Whilst nothing turns on it, this mistake may well stem from a failure to appreciate the difference between physical, or 'real' property, and his mortgage which created a charge over such property.
72. The defendant submits that he wanted someone from the Bank (and, latterly, Pepper) to sign a "statutory declaration", drafted by him, regarding ownership of his loan. The defendant characterises his position as simply wanting "proof" of such ownership, which, he asserts, has been "denied to date". There is, however, ample proof that the plaintiff is the owner of the charge over the defendant's property, and that the right to seek possession has arisen and is exercisable.
73. There was and is no obligation on any representative of the plaintiff (or the Bank, as the plaintiff's predecessor in title), to swear any declaration at the insistence of the defendant. Thus, the plaintiff's 'failure' to swear the statutory declaration drafted by him (referred to at para. 3 of the defendant's affidavit, sworn on 3 September 2020) does not establish any credible defence.
6. "Supreme Court of Judicature Act 1877"
74. Paragraph 5 of the defendant's written legal submission refers to the requirements of the Supreme Court of Judicature (Ireland) Act 1877 (the "1877 Act"). For present purposes s. 28(6) of the 1877 Act is the relevant provision, and states:-
"Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed,) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor:
Provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or any one claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice under and in conformity with the provisions of the Acts for the relief of trustees."
75. Insofar as the defendant suggests that the provisions of the 1877 Act have not been complied with, the evidence proffered by the plaintiff wholly undermines any such argument. I am satisfied that there is ample evidence that the requirements of s. 28(6) of the 1877 Act have been met. I take this view, having had the benefit of the analysis of s. 28(6) requirements in Ms. Justice Baker's decision in AIB v Thompson [2017] IEHC 515 ("Thompson") and, more recently, in Ms. Justice Bolger's decision in Pepper Finance v Egan [2025] IEHC 31. At para. 18 in Thompson, the learned judge stated the following with regard to s. 28(6) of the 1877 Act:
"The operation of the subsection
18. Finlay Geoghegan J. considered the statutory requirements in O'Rourke v. Considine & Ors. [2011] IEHC 191 and, at para. 18, set out the four conditions to be met for a valid assignment under s. 28(6) as follows:
'(a) The assignment was of a debt or other legal chose in action.
(b) The assignment was absolute and was not by way of charge only.
(c) It was in writing under the hand of the assignor.
(d) Express notice in writing thereof was given to the debtors'."
76. In the present case, the assignment by the Bank to the plaintiff (per the Deed of Transfer) was absolute; was not by way of charge; was in writing, by the assignor; and express written notice was given to the defendant (in the form of both 'hello' and 'goodbye' letters). In short, there is no credible defence with reference to the 1877 Act.
7. Credit Servicer
77. At para. 8 of the defendant's written legal submissions he states that:
"The plaintiff is credit service provider and cannot enforce a credit agreement as outline (sic) in my affidavits."
78. In these proceedings, the plaintiff is not acting as a credit service provider, but as the legal owner of a charge seeking possession. Thus, this does not constitute a credible defence to the claim.
79. It is also useful to note that in Start Mortgages DAC v Kavanagh [2023] IEHC 37, Mr. Justice Simons dealt with a motion, brought in November 2022, in which the defendant sought "... a series of declarations, the broad gist of which is to the effect that Start Mortgages DAC was acting as a credit servicer and, as such, had no lawful right to sue in its own name" (see para. 19 of the judgment). The defendant's motion in that case constituted an application to set aside a final, unappealed judgment and order, made in July 2016, by this Court (Hedigan J.) which granted possession of the defendant's property to the plaintiff. For the reasons detailed in the judgment, Simons J. refused the relief sought in the defendant's motion.
8. "Inadmissible hearsay"
80. I feel obliged to reject the submission that the plaintiff has put forward nothing more than "inadmissible hearsay evidence". Three comments seem relevant. First, s. 62(7) of the 1964 Act explicitly envisages evidence being proffered, on affidavit, in a "summary" application by "the registered owner of the charge". Second, the plaintiff is, without doubt, the registered owner of the charge over the defendant's property and, that being so, there is no party in a better position to swear to the relevant facts, in particular, the acquisition by the plaintiff, and its ownership, of the defendant's loan and security. Third, I am satisfied that the plaintiff's evidence is admissible, having regard to s. 14 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020, which provides, in relevant part:
"14. (1) Subject to this Chapter, information contained in a document shall be admissible in any civil proceedings as evidence of any fact in the document of which direct oral evidence would be admissible if the information -
(a) was compiled in the ordinary course of a business,
(b) was supplied by a person (whether or not he or she so compiled it and is identifiable) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with, and
(c) in the case of information in non-legible form that has been reproduced in permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned." (emphasis added).
9. Discovery and reasons for same
81. In the defendant's affidavit, sworn on 21 June 2024 in opposition to the plaintiff's claim, he referred to a request for discovery. Exhibit "MOR 8" comprises a copy of his letter to the plaintiff's solicitor, dated 28 April 2023, which requested:-
- "the Original Mortgage and Original Counterpart Signed/dated 23/11/2005";
- "the section headed SCHEDULE";
- "the Original Facility letter";
- "the full Original Acceptance letter".
82. Para No.4 of the defendant's 21 June 2024 affidavit contains the following averments:
"The reasons for voluntary discovery are as follows:
a. Investigation of proper chain of title.
b. I have commissioned a Securitisation audit report and wish to cross-check the registration made at land registry with those contained thereto.
c. Cross-check with registrations made at the companies registration office and see if they match with land registry entries.
d. Examine if the provision of section 64 of the registration of Title Act 1964 (sic) were follow (sic).
e. Copies of all forms 56s to check that the form prescribed for transfer of charge are correctly completed.
f. To inspect the original letter of offer, acceptance, copy of demand, global deed of transfer.
I say that the plaintiff has not established a cause of action, so as there is no cause of action before the honourable court in this matter, and therefore the honourable court has no subject matter jurisdiction on which to rely.
In all the circumstances the defendant prays this Honourable Court refuses the relief sought and dismiss or strike out the action."
83. Before explaining why discovery does not feature in summary proceedings such as these, the following comments can fairly be made in relation to the defendant's request for discovery and the reasons said to underpin it.
84. The plaintiff has never denied that he accepted the Loan facility and executed the Mortgage and that he did so in writing. This is not a case where the defendant alleges that the signature on any document is not his. Nor is there any suggestion that any document is not a true copy of the relevant original. At all material times, the defendant has had available to him true copies of all relevant documentation. Thus, the request of originals can serve no purpose.
85. Furthermore, and leaving aside the fact that the defendant did not exhibit what he describes as a "Securitisation audit report", it is clear from the reasons advanced by the defendant that he hopes, by means of a request for discovery, to challenge the conclusiveness of entries in the Land Registry. This is impermissible in light of s. 31 of the 1964 Act and the decision of the Court of Appeal in Tanager, to which I referred earlier in this judgment. For the benefit of the defendant, s. 31(1) of the 1964 Act provides:
"Conclusiveness of register
31.—(1) The register shall be conclusive evidence of the title of the owner to the land as appearing on the register and of any right, privilege, appurtenance or burden as appearing thereon; and such title shall not, in the absence of actual fraud, be in any way affected in consequence of such owner having notice of any deed, document, or matter relating to the land; but nothing in this Act shall interfere with the jurisdiction of any court of competent jurisdiction based on the ground of actual fraud or mistake, and the court may upon such ground make an order directing the register to be rectified in such manner and on such terms as it thinks just."
86. No evidence of fraud or mistake has ever been proffered by the defendant, who has never brought an application for any entry in the Register to be amended. In truth, the defendant's request for discovery is a request to embark on what is often called a 'fishing expedition'. In other words, a search for material in the hope of being able to raise allegations (as opposed to eliciting evidence to support allegations already pleaded in the dispute). The foregoing reality also illustrates why discovery is not an aspect of summary applications. Given that the defendant is not a legal professional, it seems important to explain this further.
87. Whilst the discovery process plays a central role in our legal system, it does not feature in all legal proceedings. Put simply, the purpose of discovery is to ensure that, in advance of a trial, the parties to legal proceedings have access to those documents which are relevant and necessary for a fair determination of the issues in dispute between them. The relevance, or not, of documentation, is determined with reference to the pleadings in the case. In summary proceedings, there are no pleadings. It is only if the court finds that there are issues which require determination by way of a plenary hearing that there will be pleadings, between the parties, with respect to the particular issues in dispute.
88. What I have attempted to explain, has also been the subject of previous analysis by Mr. Justice Eager, in ACC Loan Management Ltd. v. Kelly [2017] IEHC 304. At paras. 17 and 18, the learned judge set out, in the following terms, why discovery has no role to play in summary proceedings:-
"Discovery in summary summons proceedings
17. The Court is clear that the issue of discovery does not correspond with the requirements of an application for summary judgment. The Court refers to the Irish Life and Permanent plc. trading as Permanent TSB v. John Hanrahan & Celina Hanrahan [2015] IEAC 125, where Moriarty J. in the High Court refused discovery in summary summons proceedings. The defendants appealed to the Court of Appeal and in a judgment delivered on the 10th day of June, 2015 Kelly J. (as he then was) stated as follows:
"4. The adjudication will be as to whether an arguable defence has been laid out by Mr. Hanrahan on foot of the affidavit evidence which he has already filed or indeed on foot of any further affidavit evidence which he may file between now and the matter being determined by the judge.
5. The application for discovery was dealt with in the High Court by Moriarty J. who pointed out and in my view pointed out quite correctly, that normally an application for discovery does not fall to be dealt with at this stage of proceedings. In that regard the judge was on solid ground because discovery ordered in respect of issues that will fall to be tried at the trial of the action.
7. We are a long way indeed from the delivery of a formal defence in the present action as I have already pointed out the matter is pending before the Master who will have to go to a judge's list. A judge will have to decide whether there is a prima facia defence made out. If he takes the view that there is such a defence, then the case will be adjourned for plenary hearing and there will be an order made for the exchange of formal pleadings.
8. It is by reference to the pleadings that the question of the entitlement to discovery falls to be determined. There is ample case law demonstrating that it is by reference to pleadings alone that one has to identify the issues that fall to be tried.
9. It is clear that, if that is the view of the matter which found favour with the Supreme Court in the case of Keating v. RTE. Mr. Hanrahan has said he wants this discovery in order to be able to put his defence before the Master or before the judge by way of affidavit. But it is clear from the decision of the Supreme Court in Keating v. RTE that as is said there "discovery is an instrument to advance the [cause] of justice, its purpose is to aid a party in the progress of litigation". It is not designed to identify grounds capable of establishing a cause of action, that is it cannot be used to enable a person to plead a [cause] of action for a defence which he is not otherwise in a position to plea."
18. This Court finds that it is only when a court decides that a plaintiff is not entitled to summary judgment, on the basis that a defence has been raised by a defendant, that the issue of discovery arises. In those circumstances the Court will refuse the reliefs sought by way of an order for discovery in relation to these matters, and the Court will proceed to deal with the issue of whether or not there is any defence raised in relation to these proceedings." (emphasis added).
89. Returning to the position in the present case, and with a particular focus on the defendant's contention that he should have discovery of documents, 3 inter-dependent issues can be summarised, as follows:
(1) in circumstances where the plaintiff has furnished prima facie evidence of an entitlement to relief and the defendant has not put forward any credible defence, there are no issues in dispute, which require determination by means of a plenary hearing;
(2) in the absence of any issues in dispute, there is nothing to be the subject of pleadings; and
(3) in circumstances where relevance is determined with reference to the pleadings in a case, there is no need for discovery.
10. €5,426.14
90. In the manner explained earlier, the defendant confirms that, since 2011, he has made no payment on foot of his mortgage. Nor does he suggest that the quantum of his indebtedness has been overstated (his contention being that "the plaintiff has not established a cause of action"). I am satisfied, therefore, that nothing turns on the fact that, at para. 14 of the affidavit sworn on 14 February 2024, by Ms. Loftus on behalf of the plaintiff, reference is made to a payment to the defendant's mortgage account of €5,426.14, on 11 May 2022. As Woulfe J. explained at para. 40 of his judgement in Start v Ryan:
"The Courts have accepted that in a suit for possession, as opposed to a suit for the debt, a plaintiff was entitled to possession even if there was a dispute as to part of the indebtedness. For example, in Bank of Ireland v. Blanc [2020] IEHC 18, O'Regan J. stated as follows (at para. 30):
'The issue of how much money is due and owing and the guide to the granting or withholding of possession was dealt with by Ms. Justice Dunne in the High Court in 2009 in Anglo Irish Bank Plc v. Fanning [2009] IEHC 141, when it was indicated that a default was the issue, not the amount. That is clearly the case in circumstances where possession only is sought and not judgment of a particular sum of money, and possession is the only matter before this Court'."
91. It will be recalled that, following the defendant's default, he was called upon to repay his indebtedness, by letter dated 17 October 2019. In circumstances where no repayment was made, the letter demanding possession was then sent to the defendant. Assuming, for the purpose of this application, that the plaintiff was incorrect to 'credit' the defendant's mortgage account with €5,426.15, two and a half years later, in May 2022, the defendant's default, with respect to his repayment obligations under the Loan facility and mortgage, remains unaffected. The only possible outcome is that his total indebtedness, from May 2022 onwards, is less by that sum (as well as any 'positive' impact, from the defendant's perspective, on the calculation of interest). However, this is not a claim for a money judgment. It is a claim for possession in which the amount of the indebtedness is not the issue, given that the issue of default was and remains clear. Hence this issue cannot amount to a credible defence.
Reliance on Authorities
92. In the defendant's written legal submissions, he cites a number of authorities which, he argues, demonstrate that his case requires a plenary hearing. He is mistaken. The authorities which the defendant seeks to rely on are distinguishable on the facts. Given that the defendant represents himself, it seems appropriate to explain matters in some detail, as follows.
11. Start Mortgages DAC v Ramseyer [2024] IEHC 329
93. The factual position in Start Mortgages DAC v Ramseyer [2024] IEHC 329 ("Start v Ramseyer") was markedly different, in that the plaintiff had exhibited heavily redacted deeds of assignment, with many of the operative clauses redacted. It was in those particular circumstances that this Court (Simons J.) found that it was not possible to determine whether the plaintiff had taken a valid transfer of the debt outstanding on the loan, which had originally been advanced by Bank of Scotland. Hence, the learned judge remitted the matter to plenary hearing. That is certainly not the factual position, here. Earlier in this judgment I quoted, verbatim, the (unredacted) operative clauses and the entries in Schedule no. 1, which make perfectly clear that the defendant's loan facility and underlying security were the subject of a valid and absolute transfer to the plaintiff.
12. Fannon v. Ulster Bank Ireland DAC & Ors [2024] IECA 51
94. Fannon v. Ulster Bank Ireland DAC & Ors [2024] IECA 51 ("Fannon") concerned an appeal by Ulster Bank Ireland DAC ("Ulster") from the judgment of this Court (Keane J.) dismissing an application by Ulster to strike out the claims made by the plaintiff against Ulster. To understand how very different the facts were in Fannon, one need only read the following paragraphs from the judgment of Court of Appeal (Barniville P.):-
"(b) No evidence of "absolute" assignment
97. Another fundamental difficulty with Ulster's appeal concerns the argument advanced by Ulster in the High Court and, in turn, on appeal to this Court in reliance on the alleged assignment by Ulster to Promontoria of the plaintiff's loan and mortgage under the terms of a deed of transfer apparently made in December 2016 and the provisions of s. 28(6) of the 1877 Act. This argument is undermined to a fatal extent by the failure by Ulster to put in evidence a copy of the deed of transfer itself (even in redacted form) either before the High Court or this Court. This gives rise to fundamental difficulties for Ulster's dismissal application as the authorities demonstrate that in order for the provisions of s. 28(6) of the 1877 Act to apply, a number of conditions must be satisfied. One of those is that the relevant assignment was "absolute". The plaintiff did not admit the assignment and put Ulster (and the other defendants) on proof of the assignment and its terms.
98. In a number of cases in which reliance was placed on s. 28(6), the courts have found it necessary to consider the precise terms of the document alleged to constitute the assignment in order to assess whether it was an "absolute" assignment or not. Neither the High Court nor this Court was afforded that opportunity by reason of the failure by Ulster to provide a copy of the relevant deed to the court. In my view, that amounts to an insurmountable barrier to Ulster succeeding on this appeal insofar as it relies on the alleged "absolute" assignment and the provisions of s. 28(6) of the 1877 Act, to found its application to dismiss the plaintiff's contract and negligence claims." (emphasis added).
95. In light of the foregoing, the Court of Appeal in Fannon dismissed Ulster's appeal (from this Court's refusal to dismiss the relevant claims). However, in the manner examined earlier, not only has the plaintiff in this application exhibited a copy of the Deed of Transfer, from which it is clear that an absolute transfer took place, the plaintiff has also put forward proof of the notice required by s.28(6) of the 1877 Act, in the form of 'hello' and 'goodbye letters'. Thus, his reliance on Fannon is entirely misplaced.
13. Pepper Finance Corporation (Ireland) DAC v Moynihan [2024] IEHC 625
96. The facts in Pepper Finance Corporation (Ireland) DAC v Moynihan [2024] IEHC 625 ("Pepper v Moynihan") were also strikingly different. As Simons J. pointed out, the distinguishing feature of that case was that the beneficial interest in the underlying debt was held by a third party, and it appeared that the contractual intention was for the legal interest to be held, temporarily, by the plaintiff as a 'bare trustee'. The difficulty for the plaintiff in Pepper v Moynihan was its failure to proffer proof that it necessarily retained legal ownership. As the learned judge explained:
19. Pepper Finance has exhibited a heavily redacted deed entitled "mortgage sale deed" dated 28 September 2012. The mortgage sale deed appears to consist of 26 pages. Of these, the equivalent of approximately 18 pages have been redacted entirely. The redactions are not confined to the schedule of properties and security documents, i.e. information which might identify other borrowers. Rather, whole swathes of the operative clauses of the deed have been omitted. The table of contents of the deed indicates that there are 18 clauses. Of these, 15 have been redacted almost in their entirety.
20. In consequence, it is simply impossible for the court to interpret the deed or to determine its precise legal effect. It is not, for example, possible to identify the events which would trigger an obligation on the part of Pepper Finance to transfer the legal title in the underlying debt to the purchaser or its nominee. Still less is it possible for the court to know whether any of these (undisclosed) events might already have occurred. The court cannot be satisfied, therefore, on the basis of the heavily redacted version of the deed that the legal title to the underlying debt still remains with Pepper Finance." (emphasis added).
97. The redactions in the Transfer Deed before this Court raises no questions about its legal effect. The operative clauses and relevant entries in Schedule no. 1 have not been redacted. In stark contrast to the position in Pepper v Moynihan, it is clear from a reading of the Deed and Schedule that an absolute assignment of the defendant's loan and underlying security took place.
98. In short, rather than aid the defendant, the authorities he seeks to rely upon illustrate that the plaintiff has made out a prima facie case for an order for possession, whereas the defendant has proffered no evidence or argument sufficient to establish a credible defence.
Core terms
99. For the sake of clarity and completeness, the defendant does not suggest that any term in his Loan facility or mortgage is unfair. Having looked at the relevant terms, I am satisfied that all those of relevance to this application (including, the defendant's obligation to repay the monies advanced, plus agreed interest; the creation of the charge over the property, as security for the loan; and the Plaintiff's right to seek possession of the property, in the event of the defendant's default) are clear, intelligible and constitute "core terms" which relate to the "main subject matter of the contract" (see Woulfe J. in Start v Ryan at paras. 35-37, wherein the learned judge cited, with approval, the analysis by McDermott J. in Permanent TSB Plc. v. Davis [2019] IEHC 184 ).
100. The significance of the foregoing is that, even if the defendant was acting as a consumer when he obtained the loan and entered the mortgage, the terms of relevance to this application are exempt from assessment for unfairness under Directive No. 93/13/EEC and EC (Unfair Terms in Consumer Contracts) Regulations 1995 (S.I. 27/1995). Hence, there is no possibility of this issue establishing a credible defence.
Conclusion
101. For the reasons outlined in this judgment, it is appropriate to grant the relief sought by the plaintiff. Given that the defendant has no entitlement to possession and, on his account, has made no payment since 2011, he must make immediate arrangements to vacate the property.
102. When reserving judgment, I invited submissions from both sides on the question of a 'stay' in the event that I were to come to the view that the plaintiff was entitled to possession. The defendant chose to make no submission on that issue, whereas counsel for the plaintiff suggested that the longest 'stay' on an order for possession which this Court could fairly make would be for 3 months ('mirroring' the approach in the court below). I agree.
103. In circumstances where the plaintiff has been entirely successful, the plaintiff has a presumptive entitlement to their costs and I can see no factor which would justify a departure from the 'normal rule' i.e. that 'costs' should 'follow the event'. If the defendant wishes to argue for a different outcome regarding costs, I will consider any submissions they may wish to make at 10:30 am on Friday 20 June when this matter shall be listed before me, for the purpose of final orders, including as to costs. If, in advance of that, the parties have agreed the terms of final orders, a draft should be submitted to the Registrar.