Start Mortgages DAC v Langan and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 23 April 2024
• Neutral Citation: [2024] IEHC 271
• Court: High Court
• Docket Number: Record No. 2023/31CA

Between/

Start Mortgages Designated Activity Company

Plaintiff

and

Thomas Langan and Mary Langan

Defendants

[2024] IEHC 271

Record No. 2023/31CA

THE HIGH COURT

Judgment ofMr. Justice Conleth Bradleydelivered on the 23 ^rd day of April 2024

INTRODUCTION

1 This is an application brought by the Defendants seeking to permit fresh evidence to be included in the hearing of this appeal, pursuant to Order 61 of the Rules of the Superior Courts 1986, as amended (“RSC 1986”). The main proceedings concern a Circuit Court appeal from an Order for Possession, made by His Honour Judge John O'Connor on 10 ^th February 2023.

2 Rudi Neuman BL appeared for the Plaintiff and Thomas Langan (the First Named Defendant) made the application.

3 In their Notice of Motion dated 7 ^th November 2023, the Defendants seek the following Orders:

“ (1) An Order under the Rules of the Superior Courts, Order 61, for a declaration that the First named Defendant is permitted to submit fresh evidence to be included in the hearing of the appeal;

(2) An Order that the Plaintiff provide to the First Named Defendant attested copies of all Original documents relating to the Defendant's mortgage including original facility letter, original mortgage deed, every service contract, and deed of assignment which directly involves Hudson Advisors acting as a data controller of theDefendant's disputed mortgage from inception to the present date pursuant to Section 91 of the Land and Conveyancing Act, 2009;

(3) An Order that the Plaintiff provide to the First Named Defendant attested copies of all Original documents relating to the Defendant's mortgage pursuant to the transfer sale agreement to LSF IX Java Investments DAC given by that term in the Mortgage Sale Agreement dated 12 ^th September 2012 pursuant to Section 91 of the Land Conveyancing Act 2009;

(4) An Order that the First Named Defendant be permitted to cross-examine the Plaintiff's two deponents Ms. Eva McCarthy and Mr. Justin Nevin;

(4) [ sic] An order for the costs and expenses of these proceedings”.1

Mr. Langan's position

4 Mr. Langan states in his Affidavit sworn on 22 ^nd February 2024, at paragraph 4, that the new evidence which he has obtained is “ further confirmation from Hudson Advisors whose role is detailed in my earlier affidavit as the issuer administration agent for a company called European Residential Loan Securitisation 2019-NPL1DAC, the company who purchased the beneficial interest in the mortgage from LSF IX Java Investments Designated Activity Company”, and he exhibits two letters from Hudson Advisors, one dated 22 ^nd December 2023 and the other dated 19 ^th January 2024.

5 Mr. Langan places particular emphasis on the second numbered paragraph in the letter dated 22 ^nd December 2023, as follows:

“ 2. Identities of Service Agent, Seller & Buyer – Mortgage Loan 801576502

We acknowledge your request to be provided with the identities of the buyers, sellers and service agents of your mortgages in your letter. We confirm:

Mortgage Loan 801576502

• • Start Mortgages DAC (“Start”) holds legal title to and is a service agent for mortgage. In its capacity as legal title owner, it acts as a co-controller of your personal data related to this mortgage;

• • LSF Java acquired the beneficial ownership in the mortgage, which was transferred to European Residential Loan Securitisation 2019-NPL1 DAC (“NPL1”) upon securitization of this mortgage, and as such, NPL1 is a co-controller of this mortgage; and

• • Hudson has been appointed as an issuer administration consultant by Start and NPL1, in order to provide asset management services related to this mortgage,

  and in such capacity, is a processor of your personal data.”

6 In summary, Mr. Langan states that this is evidence of the sale and transfer, sale agreements and deed of assignment to third parties which were not brought to the court's attention during the hearing before the Circuit Court and, therefore, the Defendants were not allowed to present their full defence in the context of the terms of the assignment to LSF Java and the subsequent sale to European Residential Loan Securitisation, which Mr. Langan states would have contained matters relevant to the Defendants' Defence. Mr. Langan refers to the judgments of the Supreme Court in Ennis v AIB Plc[2021] IESC 12; [2021] 3 I.R. 733, 2 and the decision of the Court of Appeal in Fannon v O'Brien & Promontoria (Oyster) DAC[2024] IECA 51.3

7 Further, in his primary submission (and also in his response to Mr. Neuman BL), Mr. Langan refers to the following extract from paragraph 69 of the judgment of Heslin J. in Start Mortgages DAC v Connaughton & Anor[2023] IEHC 364 – “ [o]n the 30 ^th July 2018, the Plaintiff's solicitor furnished a Certificate to the effect that the requirements set out in Circuit Court Practice Direction CC17, dated the 10 ^th August 2015, relating to the issuing of proceedings for possession, had been complied with” – and argues that, in this case, there has been non-compliance by the Plaintiff/Respondent here (Start Mortgages DAC) with Order 5B of the Circuit Court Rules (Actions for Possession and Well-charging Reliefs (S.I. No. 264 of 2009) and Practice Direction CC17 (Proceedings for possession or sale on foot of a mortgage) including, inter alia, paragraph 3(c) and 3(c)H, which provides that “ the grounding affidavit should, in accordance with Form 54 of the Schedule of Forms of the Circuit Court Rules, include averments as to the following and exhibit the following documentation: … H. where the name of the mortgagee company has changed, or the rights of the mortgagee under the mortgage have been transferred or assigned to another party, proof (as the case may be) of the name change (e.g. as recorded in the Companies Registration Office) or of the instrument of transfer or assignment”, and also paragraph 5 dealing with the Certificate of Compliance.

8 Mr. Langan states that the documents which he now seeks to introduce were in existence at the time of the Defendants' Notice of Motion dated 7 ^th November 2023 and that it was because of the Plaintiff/Respondent's failure to comply with the Practice Direction that a GDPR request had to be made. He further contends that the Plaintiff/Respondent's failures in not setting out the details of what he asserts to be the assignment or transfer of the loan to a

third party means that these matters were ‘in play’ at the time of the hearing before the Circuit Court

The position of Start Mortgages DAC

9 Mr. Neuman BL submits that the Defendants have failed to comply with the requirements of O. 61, r. 8 RSC 1986 and have failed to explain why evidence was not submitted to the Circuit Court. Further, counsel points out that Mr. Langan's application...