Start Mortgages DAC v Noel Rogers and Una Rogers

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 02 November 2021
• Neutral Citation: [2021] IEHC 691
• Court: High Court
• Docket Number: [2020 No. 6319 P.]

Between

Start Mortgages DAC

Plaintiff

and

Noel Rogers and Una Rogers

Defendants

[2021] IEHC 691

[2020 No. 6319 P.]

THE HIGH COURT

Interlocutory injunction – Eviction – Trespass – Plaintiff seeking interlocutory relief requiring the defendants to vacate property in which the plaintiff alleged they were trespassers – Whether the eviction of the defendants from the property was invalid because the execution order on which it was based had lapsed

Facts: The plaintiff, Start Mortgages DAC, applied to the High Court seeking, as a mortgagee-in-possession, interlocutory relief requiring the defendants, Mr and Mrs Rogers, to vacate property which was previously their family home and in which the plaintiff alleged they were trespassers. The second defendant contended that the alleged eviction of herself and her husband from the property on 10th March, 2020 was invalid because the execution order on which it was based, purportedly an order granting leave to issue execution made by Barniville J on 12th November, 2018, had lapsed. A number of other issues were also raised by the second defendant as to the validity of service on her of various legal proceedings and orders and an alleged lack of direct communication by the plaintiff with her as to the seriousness of the arrears on the mortgage account.

Held by Butler J that the proceedings brought by the plaintiff were not proceedings to enforce the original judgment which was executed on 10th March, 2020. Butler J held that, having executed the judgment, the proceedings taken by the plaintiff were taken against the defendants as trespassers on the plaintiff’s property, a trespass which commenced on 10th March 2020 and which was continuing. Butler J held that no question of a breach of the statute of limitation arose. Butler J did not think that the other issues raised had either legal or factual substance.

Butler J held that there was nothing before the court which would allow her to conclude that notwithstanding the plaintiff’s position as mortgagee-in-possession, the least injustice in the case would be caused by permitting the defendants to remain in the property, ostensibly as trespassers, pending the determination of the proceedings. In all of the circumstances, Butler J was prepared to grant the plaintiff the interlocutory injunction sought.

Relief granted.

JUDGMENT of Ms. Justice Butler delivered on the 2nd day of November, 2021

Introduction

1 For historical reasons, it can be difficult to approach issues concerning eviction dispassionately in Ireland. Nonetheless, the courts cannot ignore the legal consequences which flow when the law has taken its course and a lender becomes a mortgagee-in-possession. In this case, the plaintiff is seeking, as a mortgagee-in-possession, interlocutory relief requiring the defendants to vacate property which was previously their family home and in which the plaintiff alleges they are now trespassers. As is frequently the case, there is a long and involved history to the issues between the parties going back to the making of an order for possession by the High Court (Dunne J.) on 14th July, 2008.

2 The plaintiff's application is opposed by the second defendant, Mrs. Rogers, on a number of grounds which I will outline in due course. There was no appearance on behalf of Mr. Rogers, although the plaintiff established to the satisfaction of the court that he had been served with the proceedings and, further, that the plaintiff's solicitors had corresponded with him in respect of all details concerning the date of the hearing and how to access the virtual courtroom. The court had concerns because certain correspondence was received by the Central Office directly from Mr. Rogers. Initially, in December, 2020, he wrote indicating that, although his wife had legal representation, he could not afford it and that he had neither the legal nor the IT knowledge to defend his position and was, in effect, “not capable of dealing with this matter”. On 2nd June, 2021, a medical certificate was received from Mr. Roger's general practitioner detailing certain longstanding medical issues. However, part of the case made by Mrs. Rogers is premised on the fact that her marriage to Mr. Rogers has broken down. Counsel on behalf of Mrs. Rogers confirmed to the court that only Mrs. Rogers and the children of the marriage were staying in the property at the date of the hearing, although he could not confirm the date when Mr. Rogers had left. On the basis of Mrs. Rogers' assurance that Mr. Rogers was not in occupation of the property, in consequence of which he could not be trespassing in the property, the court proceeded to hear the plaintiff's application.

3 The central issue to be decided on this application is the strength of the second defendant's contention that the alleged eviction of herself and her husband from the property on 10th March, 2020 was invalid because the execution order on which it was based, purportedly an order granting leave to issue execution made by Barniville J. on 12th November, 2018, had lapsed. A number of other issues were also raised by the second defendant as to the validity of service on her of various legal proceedings and orders and an alleged lack of direct communication by the plaintiff with her as to the seriousness of the arrears on the mortgage account. As will be seen, I do not think these latter issues have either legal or factual substance. In order to understand how the issues arise, it is necessary to understand the history of dealings between the parties including the various court applications and orders.

Factual History

4 In 2006, the defendants jointly entered into a mortgage agreement with the plaintiff and, on 26th October, 2006, they drew down a loan of €404,585 which was secured on their property at Coravilla, Bailieborough, County Cavan. Almost immediately, the defendants ran into difficulty in making the scheduled repayments and, by mid-2007, payments were sporadic and arrears were accumulating. Consequently, in 2008, the plaintiff issued special summons proceedings seeking to recover possession of the property. These proceedings were served by a summons server separately on both the first and second defendants at their premises on 16th May, 2008. The special summons came on for hearing before Dunne J. on 14th July, 2008 and she granted the plaintiff an order for possession against the defendants. The order recites that it was made in the presence, inter alia, of counsel for the defendants, plural.

5 The granting of the order for possession clearly had some effect in terms of the defendants' repayment of their mortgage because, by 2009, payments were being made on a regular, albeit intermittent, basis. I note from the exhibited statements of the loan account that in 2006 payments were made by direct debit and were frequently returned unpaid. By 2009, the statements show the payments made as “ CHQ/Cash Payment”. This is consistent with the second defendant's evidence on affidavit that, in December, 2009, she spoke by telephone with an employee of the plaintiff who gave her details of the plaintiff's account into which a payment was to be made. The second defendant is critical of the plaintiff's employee for not discussing (the plaintiff uses the word “ disclose”) any problems with the account. However, by this stage, the plaintiff already had secured an order for possession and, the second defendant was clearly aware that cash payments were being made by the defendants which was presumably because they were unable to manage direct debits. It is unclear exactly what further disclosure the second defendant believes was warranted.

6 Payments continued to be made throughout 2010 and 2011, albeit with occasional exceptions, at a level of about one-sixth of the amount actually due each month. By February, 2012, payments had ceased altogether. Since that date, only four payments have been made by the defendants. Two payments of €1,000 each were made in May, 2015 in response to steps taken by the plaintiff discussed further below and two payments of €1,500 each were made by the second defendant in response to these proceedings in July and August, 2020. This means that in over nine years the defendants have paid only €5,000 in respect of a loan which originally stood at in excess of €400,000 but which, with arrears and interest, is now nearly double that amount. It is a striking feature of this case that, for nearly a decade, there has been no meaningful engagement by either defendant with any positive action that might be taken with a view to resolving their indebtedness to the plaintiff.

7 Unsurprisingly, the plaintiff took action in respect of this scenario. On 25th September, 2013, a copy of the order for possession was personally served on the second defendant. In 2015, as more than six years had elapsed since the granting of the order for possession, the plaintiff applied to the High Court under O. 42, r. 24(a) for leave to issue execution against the defendants of that order. The motion papers in respect of that application were personally served on the second defendant by arrangement in a church carpark in Virginia, County Cavan, on 16th February, 2015. The High Court (Costello J.) made an order on 3rd March, 2015 granting the plaintiff leave to issue execution. That order is largely irrelevant as the plaintiff did not in fact proceed to execution. Nonetheless, it has become relevant to this application because the second defendant, who denies all knowledge of both the state of her mortgage account and the existence of any proceedings, was personally served with and accepted documents in respect of that application. The grounding affidavit to the 2015 application which was served with the papers, exhibited a copy of the loan account statement.

8 The action taken by the plaintiff in 2015 prompted a short series of payments by the...