KBC Bank Ireland Ltd v Flynn

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 13 February 2017
• Neutral Citation: [2017] IEHC 79
• Docket Number: [2016 No. 84 C.A.]
• Court: High Court
• Date: 13 February 2017

[2017] IEHC 79

THE HIGH COURT

CIRCUIT APPEAL

Noonan J.

[2016 No. 84 C.A.]

BETWEEN

KBC BANK IRELAND LIMITED

PLAINTIFF

AND

MARK FLYNN

AND

MAIREAD FLYNN (NEE GORMAN)

DEFENDANTS

Land & Conveyancing – Default in making mortgage payments – Land and Conveyancing Law Reform Act, 2013 – Courts (Supplemental Provision) Act, 1961 – Valuation Act, 2001 – Order for possession – Legal advice from unqualified professionals

Facts: The defendants had filed an appeal against the Circuit Court order for granting possession of the defendants' family home to the plaintiff/bank. The plaintiff asserted that the said order was granted on foot of a civil bill for possession as the defendants' had defaulted in making mortgage payments. The defendants' argued that the Circuit Court was devoid of jurisdiction to hear cases in relation to the properties that had no rateable valuation. The defendants asserted that they had made payments to an entity other than the plaintiff/bank.

Mr. Justice Noonan dismissed the appeal. The Court held that the Land and Conveyancing Law Reform Act, 2013 conferred jurisdiction to the Circuit Court in relation to claims by a mortgagee for an order of possession in relation to the principal private residence and hence, the rateable valuation had no relation to the jurisdiction of the Circuit Court. The Court noted that the only party that was entitled to receive payments in relation to mortgage was the plaintiff/bank and such practice of duping people by fake organizations was highly regrettable. The Court observed that the defendants were at fault for not seeking appropriate legal advice and contesting their case with the help of unqualified persons.

EX TEMPORE JUDGMENT of Mr. Justice Noonan delivered on the 13th day of February, 2017.

1 This matter comes before the court by way of appeal from the Circuit Court (His Honour Judge O'Hagan) against an order of that court made on the 15th of March, 2016, granting possession to the plaintiff of the property contained in Folio 18841F of the Register County Cavan.

2 The proceedings are a standard format mortgage suit in which the plaintiff bank claims an order for possession on foot of a civil bill for possession, issued on the 1st of May, 2014. The mortgage in question was entered into between the plaintiff and the defendants on the 14th of July, 2006. In the affidavits grounding the application for summary judgment, it is averred that the mortgage payments have been in default since the 1st of November, 2011, and ultimately a letter of demand was issued to the defendants on the 2nd of September, 2013, claiming the sum of €252,307.27.

3 It is common case that the property in question is now the family home of the defendants, although that was not the position when the mortgage was originally entered into. The application for judgment before the Circuit Court was brought pursuant to O. 28 which entitles a plaintiff in ejectment proceedings to summary judgment notwithstanding the entry of appearance unless the defendants satisfy the court that prima facie they have a good defence to the claim. It would appear that the defendants did not appear before the Circuit Court when it granted the order for possession. The reasons for that are no longer relevant.

4 At the hearing of the appeal before this court, the first defendant, Mr. Mark Flynn, appeared. He did not however submit any replying affidavit or indeed adduce any evidence to suggest that the defendants have a bona fide defence.

5 Instead, Mr. Flynn issued a notice of motion, within the same proceedings, in which he seeks a large number of orders in the nature of declaratory relief. The hearing of this motion was in fact listed for the 27th of February, 2017, while the hearing before me took place on the 6th of February, 2017. However, by consent of both parties, I agreed to hear all matters at the same time rather than adjourning the appeal to await the outcome of the motion. The notice of motion issued by the first defendant appears to be what can best be described as an originating summons seeking declaratory relief, a pleading by way of defence and counterclaim, a request for a case stated to the Court of Appeal, and a claim for judicial review of the Circuit Court order. Of course none of these matters can be litigated by way of a notice of motion in a Circuit Court appeal.

6 To summarise the position, it would appear that Mr. Flynn seeks an order that the decision of the Court of Appeal in Permanent TSB Plc v. Langan [2016] IECA 229 has the effect of depriving the Circuit Court of jurisdiction in this matter which relates to a dwelling that does not have any rateable valuation. Further, the notice of...