Permanent TSB Plc formerly Irish Life and Permanent Plc v Brennan
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 30 April 2019 |
| Neutral Citation | [2019] IEHC 309 |
| Docket Number | [2017 No. 37 C.A.] |
| Court | High Court |
| Date | 30 April 2019 |
[2019] IEHC 309
THE HIGH COURT
CIRCUIT APPEAL
McDermott J.
[2017 No. 37 C.A.]
Possession – Mortgaged property – Bona fide defence – Plaintiff seeking order for possession of mortgaged property – Whether defendant had bona fide defence to plaintiff’s claim
Facts: The Circuit Court, on 3rd February, 2017, granted an order for possession of lands comprised in Folio 2428F of the Register of Freeholders of County Roscommon, the subject of a pending dealing then comprised in Folio 31144F together with an order in respect of costs. A stay of execution on the order was granted for a period of two months. This order was appealed to the High Court by notice of appeal dated 13th February, 2017. The High Court (Meenan J) determined the appeal on 19th October, 2017. An application was made to the court for an adjournment and directing a transcript of the Digital Audio Recording of the proceedings before the Circuit Court. These applications were refused. The defendant, Mr Brennan, then left the courtroom and in his absence, the court having considered the pleadings and exhibits and received submissions from counsel for the plaintiff, Permanent TSB plc, dismissed the appeal. The order for possession was then served upon the defendant on 10th November, 2017, and he was requested to vacate the property. The defendant issued a motion returnable before the Circuit Court on 14th November, 2017, to which he did not appear: it was struck out on his non-appearance. By notice of motion dated 14th December, 2017, the defendant applied for liberty to re-enter his appeal of 13th February, 2017. This application was grounded on an affidavit in which he averred that on the date of the hearing of the appeal, he suffered a panic attack and left the courtroom. A medical report from a Dr O’Donnell of Strokestown, Co. Roscommon was exhibited in support of the application. The defendant asserted that he had a bona fide defence to the plaintiff’s claim for possession. The appeal was re-entered.
Held by McDermott J that the court should not adjourn this appeal and that the defendant had not advanced any stateable or bona fide defence in law or in fact to the plaintiff’s claim.
McDermott J held that, on the evidence adduced, the plaintiff had established that it was entitled to an order for possession of the mortgaged property and that the defendant’s appeal should be dismissed.
Appeal dismissed.
On 3rd February, 2017, the Circuit Court granted an order for possession of lands comprised in Folio 2428F of the Register of Freeholders of County Roscommon, the subject of a pending dealing then comprised in Folio 31144F together with an order in respect of costs. A stay of execution on the order was granted for a period of two months.
This order was appealed to the High Court by notice of appeal dated 13th February, 2017. The High Court (Meenan J.) determined the appeal on 19th October, 2017. An application was made to the court for an adjournment and directing a transcript of the Digital Audio Recording of the proceedings before the Circuit Court. These applications were refused. The defendant then left the courtroom and in his absence, the court having considered the pleadings and exhibits and received submissions from counsel for the plaintiff, dismissed the appeal.
The order for possession was then served upon the defendant on 10th November, 2017, and he was requested to vacate the property. The defendant issued a motion returnable before the Circuit Court on 14th November, 2017, to which he did not appear: it was struck out on his non-appearance.
By notice of motion dated 14th December, 2017, the defendant applied for liberty to re-enter his appeal of 13th February, 2017. This application was grounded on an affidavit in which he averred that on the date of the hearing of the appeal, he suffered a panic attack and left the courtroom. A medical report from a Dr. Hugh F. O'Donnell of Strokestown, Co. Roscommon was exhibited in support of the application. The defendant asserted that he had a bona fide defence to the plaintiff's claim for possession. The appeal was re-entered.
A civil bill for possession issued on 28th August, 2014. The claim arises from arrears said to have accrued on two mortgage accounts held by the defendant with the plaintiff under account number 99069598999488 (Account ‘A’) and account number 99069590276260 (Account ‘B’).
By letter dated 12th July, 2006, the plaintiff agreed to provide a loan facility in the amount of €170,000 to the defendant. The loan facility was for a period of 25 years and repayment was to be made in the form of monthly instalments of principal and interest. The interest would apply to the loan facility at a variable rate which was 3.44% as of the date of the letter of approval. It was a term of the loan that in the event of default by the defendant in the making of two monthly repayments, the plaintiff would be entitled to terminate the loan facility and demand immediate repayment of all sums outstanding. The terms of the loan were accepted by the defendant on 9th August, 2006, and the sum of €170,000 was drawn down on 21st August.
In the grounding affidavit of Victoria Hayes Burke sworn on 14th August, 2014 on behalf of the plaintiff, she avers that no repayments had been received in respect of loan account A since 21st August, 2012. The arrears at that time amounted to €14,339.79. As of 6th August, 2014, the sum of €141,526.97, was said to be due and owing by the defendant to the plaintiff.
By letter dated 8th February, 2008, the plaintiff agreed to make a loan facility available to the defendant in the amount of €50,000, repayable over a period of 27 years. This loan was subject to a variable interest rate which was 4.35% at the date of the letter of approval to be repaid by monthly amounts of principal and interest. In the event of default by the defendant in the making of two monthly repayments for two months, the plaintiff was entitled to terminate the loan facility and demand immediate repayment of all sums outstanding.
The defendant accepted the loan terms on 12th February, 2008 and the sum of €50,000 was drawn down on 18th February. Ms. Hayes Burke avers that on or about 19th October, 2012, and subsequently, the defendant failed to make repayments as agreed. The arrears accrued to twice the due monthly amount and continued from 17th November, 2012. No payments have been received since 17th August, 2012.
By 7th March, 2014, the amount outstanding on this account amounted to €48,056.43 including arrears of €4,427.12.
On 21st August, 2006, the defendant executed a mortgage over the property in suit in the Land Registry Folio for the County of Roscommon and the mortgage was duly registered on 24th August, 2006.
As a result of the defendant's default in making the repayments, letters of demand issued on 26th March, 2014, and on 10th April, 2014, and pursuant to the terms and conditions of the mortgage, vacant possession was sought.
The mortgage was subject to the plaintiff's general mortgage conditions (2002) pursuant to which the defendant became liable to pay the total debt secured by the mortgage to the plaintiff if he defaulted in the making of two monthly repayments or if he defaulted in the payment of any other moneys for two months. The plaintiff, therefore, seeks possession of the mortgage property in order to exercise its power of sale pursuant to the terms and conditions of the mortgage.
At the hearing of this appeal the defendant indicated that he did not wish to pursue the many grounds set out in the affidavits submitted in the Circuit Court and confined himself to two points of defence namely, a point based on alleged breaches of the Code of Conduct on Mortgage Arrears and a further point based on the plaintiff's alleged miscalculation of interest applicable to the two accounts and failure to accord the mortgage loan accounts the status of ‘tracker mortgages’. It is submitted in respect of the latter point that the plaintiff is estopped from pursuing its claim on this appeal at this time because of an undertaking given by it to the Minister for Finance and before an Oireachtas Committee that no person whose account was subject to an examination in co-operation with the Central Bank of Ireland as to whether it had been properly regarded and treated as a ‘tracker mortgage’ would be the subject of an application for possession of the mortgaged property. It was claimed that the examination of the accounts in this case was ongoing and that the appeal should be adjourned until its completion and that the plaintiff's application to proceed now with the appeal was an abuse of process. In addition it is claimed that the matter should be further adjourned to enable an accountant to examine the accounts further to ascertain whether the correct interest rates have been applied to them by the plaintiff.
Ms. Niamh McGee in an affidavit sworn on 20th January, 2015, averred that the plaintiff was in compliance with the Code of Conduct on Mortgage of Arrears (CCMA) as revised and updated in July 2013. The plaintiff operated an Arrears Support Unit (ASU) which had in place a Mortgage Arrears Resolution Process (MARP) pursuant to the CCMA. She stated that the plaintiff had at all times encouraged the defendant to engage with the plaintiff regarding his financial difficulties. A Standard Financial Statement (SFS) was sought from the defendant in order to obtain relevant up to date financial information concerning his situation. It was indicated to him that he was at risk of exiting the MARP if he failed to complete the SFS....
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Brennan v Ireland
...made against him by the Circuit Court). 15 . The judgment of McDermott J delivered on 30 April 2019 in Permanent TSB plc v Brennan [2019] IEHC 309 sets out a very useful summary of the background to the relationship between the plaintiff and his original lenders, Permanent TSB plc (‘ PTSB’)......