Irish Bank Resolution Corporation -v- Hayes & anor, [2014] IEHc 70 (2014)

Docket Number:2012 211 CA
Party Name:Irish Bank Resolution Corporation, Hayes & anor
Judge:Kearns P.
 
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THE HIGH COURT[2012 No. 211 CA]IRISH BANK RESOLUTION CORPORATIONPLAINTIFF/RESPONDENTANDCOLIN HAYES AND JENNIFER FITZGERALDDEFENDANTS/APPELLANTSJUDGMENT of Kearns P. delivered on the 21st day of February, 2014.INTRODUCTIONThis is an appeal from an order of the Circuit Court of the 20th September, 2012, whereby possession of the appellants’ property was granted to the respondent.FACTS The deed of charge in this case was entered into by the parties on the 25th March, 2005. The property concerned is the lands hereditaments and premises of the appellants at Killaha, Kenmare, Co. Kerry, Registered Folio 33519F. The property was offered by way of charge to secure repayment to the respondent of the sum of £150,000 with interest at the rate of 4.85% per annum. The terms of the deed provided for monthly repayments of £799.50 per month for a term of 30 years. The respondent further provided the appellants with a loan offer of €65,000 with interest at the rate at 4.48% per annum for a term of 25 years. The terms of this loan provided for monthly repayments of €242.67. The respondent further provided the appellants with a loan offer of €240,000 with interest at the rate of 4.73% per annum for a period of 24 years. This provided for monthly repayments of €946.00. The loan offers were respectively accepted by the appellants on the 14th June, 2001, the 26th April, 2006, and the 17th October, 2006. The appellants have been in default of payments on foot of the mortgage since March, 2009. As of February, 2011, the appellants’ mortgage account was in arrears in the sum of €36,273.36 with monthly repayments required in the sum of €2,418.45. By letter dated the 17th November, 2010, possession was demanded of the property and demand was made for payment of the sums due on foot of the mortgage. The appellants did not make payments in accordance with the terms of the loan facility and this default continued for more than one month after the initial failure.HISTORY OF THE PROCEEDINGSBy Civil Bill returnable the 16th June, 2011, grounded on the Affidavit of Mr. John Larkin the respondent sought possession of the appellants’ property for failure to make payments due and owing to the respondent. By order of the Circuit Court dated the 29th September, 2011, the respondent was changed from Irish Nationwide Building Society to Anglo Irish Bank and the matter was adjourned. By order of the Circuit Court dated the 20th September, 2012, an order for possession of the property the subject matter of this case was granted to the respondent. The appellant sought an extension of time to appeal the order of the Circuit Court made on the 20th September, 2012, granting possession to the respondent. By order of the Master of the High Court of the 22nd January, 2012, time was extended by three weeks to allow the appellants lodge their appeal.RELEVANT LAWSection 62(7) of the Registration of Title Act 1964 provided as follows:“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.”This...

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