Irish Nationwide Building Society -v- Raftery & Anor, 2012 IEHC 352 (2012)

Docket Number:1996 217 SP
Party Name:Irish Nationwide Building Society, Raftery & Anor
Judge:Hedigan J.
 
FREE EXCERPT

THE HIGH COURT[1996 No. 217 SP] IN THE MATTER OF THE REGISTRATION OF TITLE ACT 1964

BETWEEN

IRISH NATIONWIDE BUILDING SOCIETY

ANDPLAINTIFF

PATRICK RAFTERY PATRICIA RAFTERY DEFENDANTS

Judgment of Mr. Justice Hedigan delivered on 9th day of August, 2012.

  1. On the application of the plaintiff the Irish Bank Resolution Corporation was substituted as plaintiff herein. The plaintiff is the successor in title to the Irish Nationwide Building Society. The defendants are husband and wife and reside at 14, Clonbracknagh Court, Roscommon, County Roscommon.

  2. The plaintiff seeks possession of the above house pursuant to an indenture of mortgage dated the 12th November, 1992 and made between the defendants as mortgagor of the one part and the Irish Nationwide Building Society as mortgagee of the other part whereby it was agreed that:

    (i) the defendants covenanted to repay a loan of IR£69,000 with interest thereon;

    (ii) in order to secure the payment of the said monies, the defendants charged onto the plaintiff their interest in all that and those the premises known as 14, Clonbracknagh Court, Roscommon, in the County of Roscommon and more particularly being all of the property comprised in Folio 1769F ofthe Register, County Roscommon.

    The said indenture of mortgage dated the 12th November, 1992 was duly registered as a burden on the aforesaid Folio 1769F of the Register, County Roscommon on the 5th September, 1994. In breach of the covenant and agreement for repayment, the defendants have failed to repay the said loan. In the result the plaintiff claims in these proceedings possession of the premises comprised in Folio 1769F of the Register, County Roscommon.

  3. In this case the plaintiff seeks possession of a dwelling house which constitutes the family home of the defendants. It relies upon the terms of the above mortgage executed between it and the defendants as joint tenants of the property. The defendants argue that no family home declaration was signed by the second defendant and thus the mortgage conveyance is void pursuant to s. 3 of the Family Horne Protection Act 1976. If this is not so, then they argue that the second defendant did not have independent legal advice when she received a joint share in the family home from her husband nor when she subsequently signed the mortgage itself as a co- owner.

  4. The defendants counterclaim that a second property which was a licensed premises and which had also secured the loan in question was repossessed by the plaintiff and sold improvidently as a result whereof both defendants have suffered loss.

  5. The plaintiff claims on foot of a mortgage dated the 12th November, 1992. This mortgage secured a loan that had originally been advanced in December 1991 by way of a bridging loan to purchase the licensed premises "The Hob" in Charlestown, County Mayo. This premises and a house at Clonbracknagh, County Roscommon, constituted the mortgaged property in this indenture. Immediately prior to the execution of this mortgage, the first defendant also on the 12th November, 1992 had transferred to himself and the second defendant the entire of the house at Clonbracknagh as joint tenants. Thus, as...

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