ACC Loan Management Ltd v Kelly

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[2017] IEHC 454

THE HIGH COURT

Eagar J.

[2013 No. 4073 S.]

BETWEEN

ACC LOAN MANAGEMENT LIMITED

PLAINTIFF

AND

OLIVER KELLY

AND

MARGARET KELLY

DEFENDANTS

Banking & Finance Practice & Procedures – O.37, r.1 of the Rules of Superior Courts – Summary Judgement – Bona fide defence – Non-payment of loan

JUDGMENT of Mr. Justice Eagar delivered on the 10th day of July, 2017

1 This Court gave judgment on 15th May, 2017, in relation to an application by way of notice of motion for discovery by the defendants dated 3rd November, 2014.

2 The question now before the Court is whether or not a defence has been raised by the defendants, Oliver Kelly and Margaret Kelly. The Court notes the summary summons issued on 5th December, 2013, seeking judgment in the sum of €671,097.14, being the sum demanded as owing by the defendants as of 23rd October, 2013.

3 The Court also notes that the plaintiffs are not seeking interest arising from this matter.

4 An appearance was entered by the defendants and by way of notice of motion dated 1st April, 2014, an application was made for an order pursuant to O. 37, r. 1, granting the plaintiff to enter final judgment against the defendants in the sum of €671,097.14.

5 The affidavit of Edmund Pierce was dated 3rd March, 2014, and he refers to the two loan facilities.

6 The first loan facility is the subject of account 10037928 and on or about 2nd August, 2006, pursuant to a loan agreement, the plaintiff provided a loan facility to the defendants of up to €300,000 and the amount required to redeem the loan as of 27th February, 2014, was €150,788.47.

7 By deed of appointment dated 21st October, 2010, Simon Coyle of Mazars (the receiver) was appointed by the plaintiff as receiver over No. 3 St. Laurence's Park, Wicklow Town and No. 9 Glenside Road, Wicklow Town, pursuant to a mortgage dated 22nd March, 2007 and a mortgage dated 15th November, 2007, made between the defendants and the plaintiff.

8 The properties were sold by the receiver and the net proceeds of sale in the amount of €191,744.34 were applied against the first loan facility as was the payment by the borrowers in the sum of €37,158.22 in reduction of the amount owing by the defendants...