Bank of Ireland Mortgage Bank Unlimited Company v Patricia (Otherwise Pat) Mooney

• Jurisdiction: Ireland
• Judge: Mr. Justice Heslin
• Judgment Date: 01 July 2022
• Neutral Citation: [2022] IEHC 402
• Court: High Court
• Docket Number: [Record No. 2021/133 CA]

Between

Bank of Ireland Mortgage Bank Unlimited Company

Plaintiff

and

Patricia (Otherwise Pat) Mooney

Defendant

[2022] IEHC 402

[Record No. 2021/133 CA]

THE HIGH COURT

Order for possession – Mortgaged property – Bona fide defence – Plaintiff seeking an order for possession – Whether the defendant had advanced any stateable or bona fide defence in law or in fact in respect of the plaintiff’s claim

Facts: The plaintiff, Bank of Ireland Mortgage Bank Unlimited Company, appealed to the High Court against an order made by the Circuit Court on 29 July, 2021 refusing to grant the plaintiff an order for possession, as sought in the plaintiff’s Civil Bill which issued on 13 August, 2015. On behalf of the plaintiff, it was contended that there was no defence to the claim. The submissions made on behalf of counsel for the defendant, Ms Mooney, reflected the averments in the defendant’s affidavit of 10 May 2021. The opposition to the plaintiff’s claim was based around three main themes. Firstly, it was contended that, from the very outset, the defendant had engaged with the plaintiff. It was also stressed that the defendant had made a number of offers. The second aspect of the submissions revolved around the defendant’s personal circumstances. The third aspect of the submissions was the assertion that the plaintiff had breached the Code of Conduct on Mortgage Arrears disentitling the Bank to any relief.

Held by Heslin J that it was appropriate for the Court to ask whether, as a matter of law, it could properly be said that the monies (i) were secured and (ii) were due. He held that the answer to both questions was undoubtedly yes, having regard to the evidence before the Court. Carefully considering all evidence and submissions, he took the view that it would not be disproportionate to refuse the relief sought by the plaintiff. He held that the defendant had not advanced any stateable or bona fide defence in law or in fact in respect of the plaintiff’s claim. He held that, on the evidence, the plaintiff had established its entitlement to an order for possession of the mortgaged property. He noted that the loan term of ten years expired. Although the defendant was critical of the fact that none of her proposals were accepted, Heslin J found that it was equally clear that the plaintiff had made efforts to explore alternatives with the defendant. He stressed that the Court was not entitled to make value judgment as to the reasonableness or otherwise of any proposal made, be that one which emanated from the Bank or which was made by the borrower, via her solicitors.

Heslin J held that it was appropriate to grant the relief sought by the plaintiff and that it was also appropriate to grant a stay on the order for possession.

Relief granted.

JUDGMENT of Mr. Justice Heslin delivered on the 1st July, 2022 .

Introduction

1 . This is an appeal by the plaintiff against an order made by the Circuit Court on 29 July, 2021 refusing to grant the plaintiff an order for possession, as sought in the plaintiff's Civil Bill which issued on 13 August, 2015. The plaintiff was formerly known as Bank of Ireland Mortgage Bank. Pursuant to a certificate of incorporation on change of name dated 5 November, 2021, the plaintiff's name changed to Bank of Ireland Mortgage Bank Unlimited Company (hereinafter “the Bank”). An order was made by this Court (Meenan J) to reflect the change of name in the title to these proceedings. The matter proceeded by way of a de novo hearing over the course of a full day on 27 May, 2022. At the request of the defendant, every effort has been made to expedite delivery of this judgment.

The Civil Bill

2 . The Civil Bill for possession which issued on 7 August, 2015 pleads that, by letter of offer dated 19 December, 2006, the plaintiff made a loan to the defendant in the sum of €140,000 (‘the Loan’). The special endorsement of claim cites the account number 25078330 in respect of the Loan. It is also pleaded that, by virtue of a mortgage and charge dated 14 February, 2007 (‘the Mortgage’) the defendant covenanted to pay, on demand, the balance due and owing to the plaintiff in respect of present and future advances; and that the defendant mortgaged the lands described in folio 32483F of the Register, County Waterford by way of security. It is further pleaded that, in breach of the terms and conditions of the loan and mortgage, the defendant defaulted in her repayment obligations; and that the debt due and owing by the defendant to the plaintiff, as of 22 July, 2015, stood at €100,048.43, inclusive of arrears of €56,597.23. It is also pleaded that, despite demands, the plaintiff has failed, refused or neglected to pay the sums due; that the plaintiff seeks an order for possession with a view to selling the property and realising the sums due by the defendant; that the property is situate within the court's jurisdiction; and that the application is brought inter alia, pursuant to the Land and Conveyancing Law Reform Act 2013.

3 . The plaintiff's claim is specified to be for possession pursuant to the provisions of O.5(B) of the Rules of the Circuit Court and/or the Registration of Title Act 1964 and/or the Conveyancing Acts 1881–1911 and/or the Land and Conveyancing Law Reform Act 2009 as amended by the Land and Conveyancing Law Reform Act 2013. The property is more particularly described in a schedule to the Civil Bill, being the lands comprised in folio 32483F County Waterford and more commonly known as 5 Blacknock, Kilmeaden, Co. Waterford (‘the Property’).

Grounding affidavit of Mr. John Reid

4 . The plaintiff's application for possession was grounded on an affidavit sworn on 25 July, 2015 by a Mr. John Reid. At para. 1 he avers that he is a legal case manager in the arrears support unit of the plaintiff; that he has access to the banker's books and other records of the plaintiff; that his affidavit is sworn with authority on the plaintiff's behalf and from a diligent perusal of its files and records in relation to the defendant, from facts within his own knowledge save for otherwise appearing and where so otherwise appearing, he conscientiously believes the same to be true.

5 . At para. 2 he avers that, insofar as the documents exhibited by him constitute copies of an entry in a banker's book within the meaning of s.9(2) of the Banker's Books Evidence Acts 1879 to 1959 (‘the BEA’) he confirms that, at all material times the said books were under the plaintiff's control. He avers at para. 4 that the books are kept as the ordinary books of the plaintiff, with all entries made in the usual and ordinary course of the plaintiff's business. At para. 5 he avers that particulars of the principal sum due by the defendant were taken by him from the plaintiff's original banker's book, being its computerised mortgage accounts system (‘the MAS’). He further avers that the calculations of the accrual of interest on the principal were made at the rates of interest shown on the MAS being those from time to time applicable to the loan facility provided by the plaintiff to the defendant as checked and confirmed by him. In circumstances where Mr. Reid swore further affidavits in these proceedings, in which he made similar averments in regard to inter alia, his role; authority; the provenance of the plaintiff's records relied upon; and his source of knowledge, I shall refer to the averments made by Mr. Reid from paras. 1 to 5 (III) inclusive, as his “source of knowledge” averments.

Loan offer

6 . The first of the exhibits to Mr. Reid's affidavit (JR1) comprises the 19 December, 2006 loan offer letter made by the plaintiff to the defendant. The “Application number” on the loan offer letter is 25078330 which corresponds to the account number specified in the Civil Bill for possession. Among other things, the Loan offer letter confirms the amount of credit advanced (€140,000); the period of the Agreement (ten years); the APR (4.7%); the total amount repayable (€175,146.48); the number of repayment instalments (24, variable at 4.450% and 96 variable at 4.750%) as well as the effect on amount of instalment of 1% increased in first year in interest rate (67.73%). The additional loan conditions include inter alia:

“13. Property to be Mortgaged (the ‘Property’): 5 Blacknock, Kilmeaden, Co. Waterford”.

Internal p.5 of 5 of the Loan offer letter begins with the following statement:-

“CONSUMER CREDIT ACT NOTICES

WARNING: YOUR HOME IS AT RISK IF YOU DO NOT KEEP UP PAYMENTS ON A MORTGAGE OR ANY OTHER LOAN

SECURED ON IT.”

7 . The foregoing is followed inter alia, by:

“ARREARS

Any sum not paid by its due date is subject to an additional interest charge at the rate of 0.5% per month or part of month (i.e. 6% per annum) subject to a minimum of €2.54 per month from the due date until payment. This additional interest charge is intended to cover the lender's increased administration and related charges due to the Borrower's default. Full details are set out herein.”

8 . This is followed by inter alia, the lender's agreement to lend which is signed on behalf of the plaintiff, below which appear the “BORROWER'S ACCEPTANCE AND CONSENTS”. The defendant's signature appears after the aforesaid acceptance and consents and is dated 20 December, 2006. The first of these is in the following terms:

“(1) I confirm that I have read and fully understand the Consumer Credit Act notices, set out above and the terms and conditions contained in this Offer Letter and I confirm that I accept this Offer Letter on such terms and conditions.”

It is not in dispute that the Loan was in fact advanced by the plaintiff to the defendant. Nor is it in dispute that, in circumstances where the period of the Loan Agreement was ten years, the loan term expired as of 21 December, 2016.

Mortgage

9 . The second of the exhibits to Mr. Reid's affidavit comprises a copy of the 14...