Bank of Ireland Mortgage Bank v Seery and Anor

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 13 February 2026
• Neutral Citation: [2026] IEHC 80
• Docket Number: Record No: 2018/269CA

Between/

Bank of Ireland Mortgage Bank

Plaintiff

and

Edmund Seery and Ann Seery

Defendants

and

Mars Capital Finance Ireland Designated Activity Company

Applicant/Moving Party

[2026] IEHC 80

Record No: 2018/269CA

Record No: 2024/264CA

AN ARD-CHÚIRT

THE HIGH COURT

Property – Possession – Substitution – First defendant appealing against an order for possession – Whether the first defendant had established any defence which would warrant the application for possession being transferred to plenary hearing

Facts: The first defendant, Mr Seery, appealed to the High Court (by Notice of Appeal dated 13 July 2018) against an order for possession made by the Circuit Court on 6 July 2018 of a property at Cloneyheigue, Kilbeggan, County Westmeath, comprised in Folio 21560F of the Register of Freeholders, County Westmeath (the subject property). He also appealed (by Notice of Appeal dated 15 November 2024) against an order made by the Circuit Court on 12 November 2024 substituting Mars Capital Finance Ireland DAC (Mars CFI DAC) as the plaintiff for Bank of Ireland Mortgage Bank (the Bank).

Held by Bradley J that there was no basis to the claims alleged and assertions made by the first defendant which would warrant not making an order substituting Mars CFI DAC as the plaintiff in the proceedings and granting Mars CFI DAC possession of the subject property. Further, having regard to the matters raised by the first defendant, Bradley J did not consider that the first defendant had established any defence or any arguable grounds of defence which would warrant the application for possession being transferred to plenary hearing. Bradley J was satisfied that Mars CFI DAC, as the party moving the application for possession of the subject property, was the registered owner of the subject Mortgage and Charge, that its right to possession had arisen and had become exercisable and that it was the appropriate plaintiff who was entitled to maintain the proceedings and was thereby entitled to an order of possession of the subject property, citing Tanager DAC v Kane [2018] IECA 352, Start Mortgages DAC v Ryan and Ryan [2021] IEHC 719 and Bank of Ireland Mortgage Bank v Cody [2021] IESC 26. Bradley J noted that the defendants took out the initial loan in 2008 and went into default in their repayments in 2009 and the right to possession of the property vested in the owner of the Mortgage and Charge had arisen and had become exercisable; extremely modest repayments were made and the indebtedness increased year on year over a 17-year period and including the period of the proceedings. Bradley J noted that the defendants had not disputed that they were unable to address their indebtedness; as the owner of the loans, Mars CFI DAC was entitled to be substituted for the Bank and was further entitled to an order of possession of the subject property.

Bradley J dismissed the first defendant’s appeals against the order of the Circuit Court made on 6 July 2018 in Record No: 2018/269CA and the order of the Circuit Court made on 12 November 2024 in Record No: 2024/264CA.

Appeals dismissed.

REDACTED

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 13 ^th day of February 2026

INTRODUCTION

1 This judgment comprises (i) an appeal by the first named defendant (by Notice of Appeal dated 13 ^th July 2018) against an order for possession made by the Circuit Court on 6 ^th July 2018 of a property at Cloneyheigue, Kilbeggan, County Westmeath, comprised in Folio 21560F of the Register of Freeholders, County Westmeath (“the property”, “mortgaged property” or “subject property”) and an (ii) an appeal, also by the first named defendant, (by Notice of Appeal dated 15 ^th November 2024) against an order made by the Circuit Court on 12 ^th November 2024 substituting Mars Capital Finance Ireland DAC as the plaintiff for Bank of Ireland Mortgage Bank.

2 The subject property is the principal private residence and family home of Mr. Edmund Seery and Mrs. Ann Seery (“the defendants”) who are estranged. The applicant and moving party is Mars Capital Finance Ireland Designated Activity Company (“Mars CFI DAC”).

3 In Pepper Finance Corporation (Ireland) DAC v O'Reilly [2025] IECA 140 (Costello P., Whelan J. and Binchy J.) Costello P., at para. 22 of her judgment, described the High Court's jurisdiction in similar applications, as follows:

“ 22. An appeal from the Circuit Court to the High Court is different to an appeal from the High Court to the Court of Appeal or the Supreme Court. The hearing is de novo. The High Court considers the matters afresh and makes its decision based on the evidence adduced before the High Court. Evidence before the Circuit Court is not evidence before the High Court and cannot form the basis of the judgment of the High Court. It is not concerned with whether the Circuit Court erred in its decision. When the Circuit appeal is heard, the High Court must determine whether, at the time of the application before it, the party who seeks to be substituted as the plaintiff is entitled to judgment against the defendant: it is not concerned with whether the party who was plaintiff in the Circuit Court was entitled to judgment against the defendant. To that extent, it is an analogous stage in the proceedings as pertained in IBRC v Comer [2014] IEHC 671 (per Kelly J. (as he then was)) and IBRC v Morrissey i.e. pre-trial.”

4 By virtue, therefore, of s. 37(2) and s. 38(2) of the Courts of Justice Act 1936, such appeals are “ heard by way of rehearing of the action or matter in which the judgment or order the subject of such appeal was given”, i.e., a de novo hearing or a rehearing of the matters.

5 In these applications, therefore, adopting the observations of Costello P. at paras 22 and 23 of the judgment of the Court of Appeal in Pepper Finance Corporation (Ireland) DAC v O'Reilly [2025] IECA 140, I must consider whether the intended assignee, Mars CFI DAC, is, at the date of the hearing of these appeals (on 23 ^rd October 2025 and 31 ^st October 2025), entitled to an order for possession. The hearing is de novo and Mars CFI DAC is required to prove its claimed entitlement to an order for possession and in that regard, that it is the assignee of the Loan as secured by the Mortgage and Charge. It must prove the case in full, not simply that it is the beneficiary of an order of the Circuit Court. If it succeeds, a new order for possession will be granted, and it is that order, rather than the order of the Circuit Court, which is subject to enforcement.

6 In Pepper Finance Corporation (Ireland) DAC v O'Reilly [2025] IECA 140, KBC Bank Ireland plc had transferred its interests to KBC Bank NV, pursuant to S.I. 447/2023, and KBC Bank NV had allegedly assigned the interest in the loan and security underlying the loan to Pepper Finance Corporation Finance (Ireland) DAC (“Pepper”, as the assignee). An ex parte application had been made to the High Court, pursuant to O. 17, r. 4 of the Rules of the Superior Courts 1986 (“the RSC 1986”) to substitute the assignee (Pepper) as plaintiff in the proceedings and the High Court (Ferriter J.) ordered that the proceedings be amended by substituting Pepper for KBC Bank Ireland plc as the plaintiff in the title of those proceedings and the order contained a proviso that the defendant be notified of certain matters in writing. Whilst different parties are involved in these appeals, similar, though not identical, sequential issues arise in the applications before me, as arose in Pepper Finance Corporation (Ireland) DAC v O'Reilly.

7 In addition to the written submissions furnished, many of the points raised by the first named defendant were set out in his Affidavits.

8 Whilst these appeals are de novo hearings, it is apposite to set out the background and chronology which is common to each of the applications, and which are determined in this single composite judgment.

9 At the hearing before me, the following core documentation was referred to in relation to the appeal against the possession order of 6 ^th July 2018: Civil Bill for Possession dated 8 ^th June 2010; Grounding Affidavit of Raymond Lawless dated 18 ^th May 2010 and the documents exhibited thereto; defendants' Entry of Appearance dated 14 ^th June 2010; first defendant's Notice of Change of Solicitor dated 11 ^th February 2011; second defendant's Entry of Appearance dated 9 ^th March 2011; Affidavit of Lorcan Brophy dated 10 ^th June 2011 and the documents exhibited thereto; Affidavit of Fiona Cassidy dated 17 ^th February 2012 and the documents exhibited thereto; an Order of the Circuit Court dated 21 ^st February 2012; plaintiff's Notice of Change of Name and Address of Solicitor dated 14 ^th February 2012; plaintiff's Notice of Intention to Proceed dated 23 ^rd February 2015; plaintiff's Notice of Re-Entry dated 24 ^th March 2015; Verifying Affidavit of John Hughes dated 26 ^th November 2014; 2 ^nd Affidavit of Fiona Cassidy dated 31 ^st November 2014 and the documents exhibited thereto; Affidavit of Brendan Moriarty dated 3 ^rd November 2015 and the documents exhibited thereto; Order of the Circuit Court dated 9 ^th November 2015; Supplemental Affidavit of Ruth Tracey dated 11 ^th January 2016 and the documents exhibited thereto; 1 ^st Affidavit of Edmund Seery dated 15 ^th January 2016 and the documents exhibited thereto; Affidavit of Service of Una Carter dated 18 ^th January 2016 and the documents exhibited thereto; Order of the Circuit Court dated 20 ^th January 2016; 2 ^nd Affidavit of Brendan Moriarty dated 9 ^th February 2016 and the documents exhibited thereto; 1 ^st defendant's Notice of Motion to cross-examine dated 7 ^th March 2016; 2 ^nd Affidavit of Edmund Seery dated 7 ^th March 2016; 3 ^rd Affidavit of Edmund Seery dated 11 ^th April 2016 and the documents exhibited thereto; Order of the Circuit Court dated 21 ^st April 2016; plaintiff's Notice of Motion to transfer dated 14 ^th November 2016; 3 ^rd...