Bank of Ireland Mortgage Bank v Cody

• Jurisdiction: Ireland
• Judge: Mr Justice Garrett Simons
• Judgment Date: 31 January 2020
• Neutral Citation: [2020] IEHC 34
• Court: High Court
• Docket Number: 2019 No. 60 CA
• Date: 31 January 2020

BETWEEN

BANK OF IRELAND MORTGAGE BANK

PLAINTIFF

AND

PETER CODY

HEATHER CODY

DEFENDANTS

[2020] IEHC 34

Garrett Simons J.

2019 No. 60 CA

THE HIGH COURT

CIRCUIT APPEAL

Order for possession – Onus of proof – Loan agreements – Defendant seeking to appeal against order for possession – Whether plaintiff discharged onus of proof for order for possession

Facts: The defendants, Mr and Ms Cody, were the registered owners of lands at Ramstown, Gorey, County Wexford. The defendants had been married to each other but had since separated. The plaintiff, Bank of Ireland Mortgage Bank, was the registered owner of a charge in respect of present and future advances repayable with interest. The Circuit Court made an order for possession on 12 February 2019, but imposed a stay on the execution of that order for a period of fifteen months. The second defendant appealed to the High Court against the order for possession. Ms Cody made serious allegations against both her estranged husband and the Bank. She said that mortgages were created in her name and that of her husband without her knowledge or consent.

Held by Simons J that the Bank, as the moving party under s. 62(7) of the Registration of Title Act 1964, bore the onus of proof. Simons J held that the Bank had failed to establish the necessary proofs to allow the High Court to make an order for possession. Specifically, Simons J held that the Bank had failed to prove that Ms Cody executed the two loan agreements which the Bank sought to rely upon; this omission was fatal to the claim for possession in that the Bank could not prove that Ms Cody was indebted to it.

Simons J held that Ms Cody’s appeal against the order made by the Circuit Court on 12 February 2019 must, therefore, be allowed. Simons J held that an order would be made setting aside the order for possession made by the Circuit Court.

Appeal allowed.

JUDGMENT of Mr Justice Garrett Simons delivered on 31 January 2020

INTRODUCTION

1 This matter comes before the High Court by way of an appeal from the Circuit Court. The proceedings are brought pursuant to section 62(7) of the Registration of Title Act 1964. The Defendants are the registered owners of lands at Ramstown, Gorey, County Wexford. The Defendants had been married to each other but have since separated. The Plaintiff, Bank of Ireland Mortgage Bank (“the Bank”), is the registered owner of a charge in respect of present and future advances repayable with interest.

2 The Circuit Court made an order for possession on 12 February 2019, but imposed a stay on the execution of that order for a period of fifteen months. The second defendant, Heather Cody, has brought an appeal against the order for possession. No appeal has been brought by the first defendant, Peter Cody.

3 Ms Cody has made very serious allegations against both her estranged husband and the Bank. In brief, Ms Cody says that mortgages were created in her name and that of her husband without her knowledge or consent. As discussed presently, Ms Cody has instituted separate plenary proceedings before the High Court against her husband, the firm of solicitors in which he had been a partner, and the Bank.

RELEVANT STATUTORY PROVISIONS

4 The application for an order for possession is made pursuant to section 62(7) of the Registration of Title Act 1964. This section had been repealed by the Land and Conveyancing Law Reform Act 2009. The repeal is, however, now subject to transitional provisions under the Land and Conveyancing Law Reform Act 2013. The effect of section 1 of the 2013 Act is that, as respects a mortgage created prior to 1 December 2009, section 62(7) of the Registration of Title Act 1964 continues to apply, and may be invoked or exercised by any person as if those provisions had not been repealed.

5 The mortgage and charge relied upon by the Bank in the present case is dated 12 January 2007. The transitional provisions thus apply, and the Bank is entitled to invoke section 62(7).

6 Section 3 of the Land and Conveyancing Law Reform Act 2013 provides that proceedings relating to certain mortgages are to be brought in the Circuit Court. The Civil Bill for Possession in the present case is endorsed with the requisite statement setting out the basis on which the proceedings have been commenced pursuant to the 2013 Act. This statement is required under Order 5B, rule 3 of the Circuit Court Rules.

7 Section 62(7) provides as follows.

(7) 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.

8 The approach which a court must take on an application for an order for possession has been explained as follows by the Supreme Court in Irish Life and Permanent Plc v. Dunne [2015] IESC 46; [2016] 1 I.R. 92, [80].

“[…] In order for the power to seek an order for possession under s.62(7) of the 1964 Act to have arisen, what was required was that the principal monies were due. It follows that the question which any court invited to apply the jurisdiction arising under that section must ask itself is as to whether, as a matter of law, it can properly be said that the principal monies had become due. The first port of call for determining whether those monies had become due is to identify the terms of the contract between the lender and the borrower as to when the entire principal sum can be said to fall due. Terms in that regard can, and do in practice, differ. It may be that, on a proper interpretation of the contractual documents in one case, a demand for payment following some form of default may be necessary. It might, however, be the case that, in other circumstances and in the light of the terms contained in a particular mortgage deed, the full sum may become due without demand in certain, specified circumstances.”

9 The Court of Appeal in Tanager DAC v. Kane [2018] IECA 352 held, at paragraphs [67] and [68], that the correctness of the Register of Title cannot be challenged in possession proceedings.

REQUESTS PURSUANT TO DATA PROTECTION ACTS

10 Ms Cody had first submitted a data subject access request to the Bank pursuant to the Data Protection Acts on 13 October 2015. Ms Cody had sought copies of all loan and mortgage application documentation for loans or mortgages taken out in the joint names of Heather Cody and Peter Cody between the years 1990 until 2010. It is alleged that the mortgage the subject-matter of these proceedings was undertaken as part of a systemic fraudulent practice which took place between the years 1990 until 2018.

11 The County Registrar purported to make an order on 10 April 2017, in the context of these proceedings, directing that “the Data Protection request … should be complied with immediately”. The Bank chose not to appeal this order to a judge of the Circuit Court. The explanation given for this approach is that the Bank was of the view that the relevant data had already been provided. See affidavit of Emmet Pullan dated 28 November 2018.

12 Ms Cody issued a motion on 21 November 2018 seeking to have the Bank held in contempt of court for its alleged failure to comply with the County Registrar's order of 10 April 2017.

13 The Circuit Court (Judge Hutton) made an order on 29 November 2018 striking out Ms Cody's motion. An appeal against that order was taken to the High Court, and the appeal was dismissed by Jordan J. on 25 March 2019 (2018 No. 530 CA).

MORTGAGE AND CHARGE

14 The Defendants are the registered owners of lands held under Folio 25003F of the County of Wexford (“the Folio”). The Defendants were registered as full owners on 4 November 1998. The lands had been occupied by both Defendants as their principal private residence (“the family home”). The Defendants have since separated, and the family home is now occupied by the second named Defendant, Ms Cody, and her children.

15 Bank of Ireland Mortgage Bank ( “the Bank”) is the owner of a charge registered as a burden on the Folio. The charge is stated to be for “present and future advances repayable with interest”. This charge was registered on the Folio on 21 December 2007.

16 A separate charge is registered in favour of the Governor and Company of the Bank of Ireland. This charge had been registered on the Folio on 20 June 2007. No issue has been raised in these proceedings as to the existence of this earlier charge, and, in particular, no point is taken as to the priority of same.

17 The Bank's case is that there are monies due to it pursuant to two loan agreements which are said to have been entered into by both Mr & Mrs Cody on 24 October 2005. The repayment of this debt is said to have been secured against the family home by a deed of mortgage and charge entered into between the Defendants and the Bank on 12 January 2007 (“the Mortgage”). The Bank submits that the principal monies secured became due when the Bank made a demand for repayment in respect of the two loan agreements by letters dated 10 June 2016 sent to Mr Cody and Ms Cody respectively. These letters of demand are said to have been sent in circumstances where Mr Cody and Ms Cody had defaulted in the making of repayments under the two loan agreements.

18 The Bank's application for an order for possession is grounded on the affidavit of Helen Dorris sworn on 16 December 2016. Ms Dorris describes herself as a “legal case manager” in the Arrears Support Unit of the Bank. A verifying affidavit has been sworn by Sean Buckley who identifies himself as a manager of the Bank, and an “officer”...