Bank of Ireland Mortgage Bank v Niall ; Hade v Bank of Ireland Mortgage Bank

JurisdictionIreland
JudgeMr. Justice Barr
Judgment Date25 November 2022
Neutral Citation[2022] IEHC 645
CourtHigh Court
Docket Number[Record No. 2014/1416S]
Between
Bank of Ireland Mortgage Bank
Plaintiff
and
Niall Hade and Joyce Hade
Defendants
Between
Niall Hade
Plaintiff
and
Bank of Ireland Mortgage Bank and Michael McAteer
Defendants

[2022] IEHC 645

[Record No. 2014/1416S]

[Record No. 2014/4328P]

THE HIGH COURT

Summary judgment – Negligence – Damages – Plaintiff seeking summary judgment – Whether the plaintiff disregarded protections afforded to the defendants under the Consumer Protection Act 1995

Facts: The plaintiff, Bank of Ireland Mortgage Bank, brought summary summons proceedings against the defendants, Mr and Mrs Hade, seeking a joint and several judgment against each of the defendants in the sum of €2,026,640.09, together with continuing interest thereon from 28th September, 2022 until date of judgment. The bank also sought the sum of €1,412,210.09 against Mr Hade on foot of the second loan, which had been made to him solely, together with continuing interest from 28th September, 2022 until date of judgment. The defendants filed a counterclaim, which sought damages for alleged negligence and failure on the part of the bank in disregarding protections afforded to the defendants under the Consumer Protection Act 1995 and for failure to follow the correct statutory processes in respect of obtaining possession and exercising a power of sale, where the properties were in respect of home loans, governed by the Land and Conveyancing Law Reform Act 2009. The defendants also claimed damages for breach of an alleged agreement between the defendants and the bank, which they alleged had been reached through the bank’s representative Mr Naughton, whereby it was allegedly agreed that the interest only repayment period under the loans would be extended beyond the initial five-year period, which had been agreed at the outset of the loan. The defendants claimed damages for the alleged negligence on the part of the bank in appointing a receiver over home loans, where the second defendant had never signed any consent to the creation of a mortgage over such properties. The defendants also claimed damages for the unlawful sale of a number of their properties, without the receiver having obtained an order for possession, or an order for sale, in respect of the properties. The defendants also claimed damages for the alleged violation of their constitutional right to their good name and privacy, due to the actions of the plaintiff in displaying a notice at one of the properties, which had been furnished as security for the loans. The defendants also claimed damages from the bank due to the alleged default on the part of the receiver for unlawfully selling the properties and for permitting other properties, which he had retained, to be vandalised and to become devalued. In plenary proceedings brought by Mr Hade against the bank and Mr McAteer, who had been appointed as receiver over the properties that had been given as security for the two loans, he repeated all of the matters that he had raised in his counterclaim to the summary summons proceedings.

Held by Barr J that the High Court proposed making the following orders in the summary summons proceedings: (1) judgment in favour of the plaintiff against the defendants jointly and severally in the sum of €2,026,640.09, together with continuing interest thereon from 28th September, 2022 to date of judgment; (2) judgment in favour of the plaintiff against the first defendant in the sum of €1,412,210.09, together with the continuing interest thereon from 28th September, 2022 to date of judgment; and (3) dismissing the defendants’ counterclaim against the plaintiff.

Barr J held that the court proposed making the following orders in the plenary proceedings: (1) judgment in favour of Mr Hade against the receiver in the sum of €550,000; (2) a declaration that the receiver is not entitled to possession of 29 Kingswood Heights, Dublin 24 or 4 Taobh Na Coille, Dublin 24, without an order of the Circuit Court (there will be a stay on this declaration for six months to enable the receiver to bring the necessary applications before the Circuit Court); and (3) dismissing Mr Hade’s action against the bank.

Summary judgment granted.

JUDGMENT of Mr. Justice Barr delivered on the 25 th day of November, 2022.

Introduction
1

. This judgment deals with two actions which arise out of broadly the same set of circumstances concerning the alleged indebtedness of Mr. & Mrs. Hade with Bank of Ireland Mortgage bank in respect of two loans and concerning issues surrounding the lawfulness of the actions taken by the receiver, who was appointed by the bank over twelve properties, which had been provided as security for the two loans.

2

. The two actions were heard together over seven days in October 2022. The bank and the receiver were represented in each action by solicitor and counsel. Mr. & Mrs. Hade represented themselves in the summary proceedings brought by the bank. Mr. Hade represented himself in his own action against the bank and the receiver.

3

. It was agreed at the hearing, that given the overlap in the nature of the counterclaim that was put forward by Mr. & Mrs. Hade to the summary summons proceedings, which had been brought by the bank against them seeking judgment on foot of the two loans and the content of the counterclaim that they raised in that action; and the issues that arose for determination in the plenary proceedings brought by Mr. Hade against the bank and the receiver, that the evidence given in the first set of proceedings, being the summary summons action brought by the bank, and the evidence given in the second set of proceedings, being Mr. Hade's plenary proceedings, would apply mutatis mutandis to the issues that arose for determination in each action.

4

. The first action which was heard by the court was the summary summons proceedings brought by Bank of Ireland Mortgage Bank against Mr. & Mrs. Hade in which they sought a joint and several judgment against each of the defendants in the sum of €2,026,640.09, together with continuing interest thereon from 28 th September, 2022 until date of judgment. The bank also sought the sum of €1,412,210.09 against Mr. Hade on foot of the second loan, which had been made to him solely, together with continuing interest from 28 th September, 2022 until date of judgment.

5

. The defendants filed a full defence to that action, together with a counterclaim, which sought damages for alleged negligence and failure on the part of the bank in disregarding protections afforded to the defendants under the Consumer Protection Act 1995 and for failure to follow the correct statutory processes in respect of obtaining possession and exercising a power of sale, where the properties were in respect of home loans, governed by the Land and Conveyancing Law Reform Act, 2009 (hereinafter “the 2009 Act”).

6

. The defendants also claimed damages for breach of an alleged agreement between the defendants and the bank, which they alleged had been reached through the bank's representative Mr. Pascal Naughton, whereby it was allegedly agreed that the interest only repayment period under the loans, would be extended beyond the initial five-year period, which had been agreed at the outset of the loan.

7

. The defendants claimed damages for the alleged negligence on the part of the bank in appointing a receiver over home loans, where the second defendant had never signed any consent to the creation of a mortgage over such properties. The defendants also claimed damages for the unlawful sale of a number of their properties, without the receiver having obtained an order for possession, or an order for sale, in respect of the properties.

8

. The defendants also claimed damages for the alleged violation of their constitutional right to their good name and privacy, due to the actions of the plaintiff in displaying a notice at one of the properties, which had been furnished as security for the loans. The defendants also claimed damages from the bank due to the alleged default on the part of the receiver for unlawfully selling the properties and for permitting other properties, which he had retained, to be vandalised and to become devalued.

9

. In the plenary proceedings brought by Mr. Niall Hade against Bank of Ireland Mortgage Bank and Michael McAteer, who had been appointed as receiver over the properties that had been given as security for the two loans, the plaintiff essentially repeated all of the matters that he had raised in his counterclaim to the summary summons proceedings. In particular, he pleaded that the loans in question were home loan contracts within the meaning of the 2009 Act. He alleged that the receiver had unlawfully taken possession of certain of the properties in respect of which mortgages had been created after the operative date of 1 st December, 2009, and had sold three of them, without first obtaining either an order for possession of the properties, or an order for sale. He again alleged that the receiver had acted negligently and in breach of duty by (a) selling some of the properties at undervalue and (b) by failing to maintain the properties in respect of which he had retained possession and had thereby caused them to deteriorate to such an extent that they had lost substantial value. In addition, the plaintiff alleged that he had been forced to sign a number of mortgages in 2009 under duress.

10

. The plaintiff alleged that his health had suffered greatly as a result of the actions on the part of the bank and the receiver in the conduct of the receivership of the properties and as a result, he claimed damages for negligence. The plaintiff also claimed the sum of €4m as damages and an order declaring that the mortgages executed by him were null and void, together with a claim for damages for breach of his constitutional right to a good name and his right to earn a livelihood and for interference with his right...

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4 cases
  • Farrington v Promontoria (Oyster) DAC
    • Ireland
    • High Court
    • 11 August 2023
    ...be recorded that the plaintiff has sought to rely on the judgment of the High Court (Barr J.) in Bank of Ireland Mortgage Bank v. Hade [2022] IEHC 645. The plaintiff has cited a note published by the Conveyancing Committee of the Law Society on 12 May 2023 in respect of the 25 The judgment ......
  • Madigan v Promontoria [Oyster] Designated Activity Company and Another
    • Ireland
    • High Court
    • 19 December 2023
    ...265 . This Court's jurisdiction to make an award of exemplary damages is not in doubt (see, for example, Hade v. Bank of Ireland [2022] IEHC 645; and Donlon v. Burns [2022] IECA 159). In Hade, this Court (Barr J.) awarded damages of €150,000 for each of three properties sold by a receiver w......
  • Bank of Ireland Mortgage Bank v Hade
    • Ireland
    • High Court
    • 21 December 2022
    ...other properties over which he had been appointed. On 25th November, 2022, the High Court delivered a reserved judgment in both actions: [2022] IEHC 645. The bank obtained summary judgment against the defendants jointly and severally on foot of the two loans. In the plenary proceedings, Mr ......
  • Madigan v Promontoria (Oyster) Designated Activity Company and Another
    • Ireland
    • High Court
    • 19 December 2023
    ...265 . This Court's jurisdiction to make an award of exemplary damages is not in doubt (see, for example, Hade v. Bank of Ireland [2022] IEHC 645; and Donlon v. Burns [2022] IECA 159). In Hade, this Court (Barr J.) awarded damages of €150,000 for each of three properties sold by a receiver w......

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