Start Mortgages Ltd v Kavanagh

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 04 July 2017
• Neutral Citation: [2017] IEHC 433
• Docket Number: [2016 No. 279 CA]
• Court: High Court
• Date: 04 July 2017

BETWEEN

START MORTGAGES LIMITED

PLAINTIFF

AND

VINCENT KAVANAGH

AND

MADELEINE (ORS MADELINE) KAVANAGH

DEFENDANTS

[2017] IEHC 433

Noonan J.

[2016 No. 279 CA]

THE HIGH COURT

Land and Conveyancing – S. 3 of the Land and Conveyancing Law Reform Act 2013 – S. 62 (7) of the Registration of Title Act 1964 – Possession of mortgaged property

Facts: The first named defendant filed an appeal against the order of the Circuit Court whereby the Court had granted an order for the possession of the subject property to the plaintiff. The central issue revolved around the title of the plaintiff to prosecute the proceedings before the Circuit Court.

Mr. Justice Noonan dismissed the appeal. The Court held that the title of the plaintiff being the subsequent assignee of the right, title and interest of the subject property was valid. The Court held that the register was the conclusive evidence of the plaintiff's title to charge the subject property as per s. 31 (1) of the Registration of the Title Act, 1964.

JUDGMENT of Mr. Justice Noonan delivered on the 4th day of July, 2017

1 This is an appeal brought by the first named defendant (Mr. Kavanagh) against an order of the Circuit Court (Her Honour Judge Fergus) made on 14th June, 2016 whereby the court granted an order for possession to the plaintiff of ALL THAT AND THOSE the property comprised in folio 9004F County Carlow and now more commonly known as 36 Beechwood Park, Carlow, Co. Carlow. The court imposed a stay of six months on the order for possession and made no order as to costs.

2 Proceedings of this nature brought by banks and their successors in title are unfortunately a daily feature in Circuit Court lists throughout the country both before County Registrars and Circuit Judges. These proceedings are entirely conventional and commonplace. Many, and perhaps most, such cases arise from the economic collapse in Ireland and indeed worldwide since in or about 2008, the effects of which are still being felt. The defendants herein are not untypical of married couples who have run into difficulty with their mortgage payments as a direct consequence of that financial catastrophe. I have great sympathy for them and many others like them who have faced serious financial problems as a result of circumstances beyond their control resulting in the loss of jobs, the collapse of businesses and the like.

3 Possession cases such as the present one have become the focus of what seems to be an increasing number of interest groups that purport to assist personal litigants such as Mr. Kavanagh, whether for reward or otherwise. Some such groups, and indeed individuals, appear in many instances to be agenda driven and implacably opposed to the courts granting orders of the kind sought in this case. Regrettably, that opposition has on occasion transcended the bounds of legitimate behaviour in court leading to situations where defendants, and those assisting them, have been held in contempt and been the subject of criminal prosecution. The approach of some groups and individuals purporting to assist litigants in person has been the subject of adverse judicial comment in a number of recent cases. I hasten to add that in the present case, Mr. Kavanagh conducted his case with absolute propriety and courtesy and did the best he could to assist the court.

4 The plaintiff's claim in these proceedings is for an order pursuant to s. 62 (7) of the Registration of Title Act 1964 for delivery of possession of the mortgaged property already identified. That subsection provides as follows:

‘When repayment of the principal money secured by the instrument of charge has become due, the registered owner of the charge or his personal representative may apply to the court in a summary manner for possession of the land or any part of the land, and on the application the court may, if it so thinks proper, order possession of the land or the said part thereof to be delivered to the applicant, and the applicant, upon obtaining possession of the land or the said part thereof, shall be deemed to be a mortgagee in possession.’

5 These proceedings were brought in the Circuit Court in Co. Carlow on foot of s. 3 of the Land and Conveyancing Law Reform Act 2013 which in the case of a principle private residence, confers jurisdiction on the Circuit Court to hear and determine such claims. It is important therefore to note that this case is entirely unrelated to the jurisdiction of the Circuit Court in relation to claims concerning real property where the rateable valuation does not exceed a certain limit. The latter issue is one that has been the subject of a number of recent cases before the Superior Courts but these cases are not relevant to the circumstances that arise here.

6 The main focus of Mr. Kavanagh's argument in this case has been the title of the plaintiff to prosecute these proceedings and it is therefore appropriate that I should set out how that arises.

7 The proceedings arise out of a home loan taken out by the Kavanaghs in the sum of €110,000 with Bank of Scotland (Ireland) Limited (BOSI) on foot of a letter of offer of 13th June, 2007. Subsequently, Mr. & Mrs. Kavanagh entered into a deed of mortgage with BOSI on the 6th July, 2007. On 21st September, 2007, BOSI became registered on the folio as the owner of this charge. It would appear that a little over two years into the life of the mortgage, from the end of the 2009, the Kavanaghs started to fall into arrears with their monthly repayments. On 31st December, 2010, BOSI transferred its interest in the mortgage to its parent company, Bank of Scotland Plc. (BOS).

8 The manner in which this transfer of interest occurred is set out in the affidavit of Charlotte Cottham sworn in support of the original application for possession in the Circuit Court. That affidavit sets out that by cross border merger pursuant to European Communities (Cross Border Mergers) Regulations 2008 of Ireland and the Companies (Cross Border Mergers) Regulation 2007 of the United Kingdom approved by the High Court of Ireland on the 22nd October, 2010 and by the Scottish Court of Session on 10th December, 2010, all of the assets and liabilities of BOSI, including the Kavanaghs' mortgage, transferred to BOS by operation of law at 23:59 hours on 31st December, 2010. By letter of 17th November, 2011, BOS demanded repayment of the debt the subject matter of the mortgage. On 13th May, 2013, BOS, through its solicitors, demanded possession of the property the subject matter of these proceedings.

9 On 21st October, 2013, a civil bill for possession was issued by BOS. In the affidavit grounding the application for possession, Ms. Cottham deposes to the amount then outstanding on foot of the mortgage. She also avers that the property is the family home of the defendants and that the Code of Conduct on Mortgage Arrears has been complied with. Before the proceedings came on for hearing, a further transmission of interest occurred. On 11th October, 2014, BOS sold its loan portfolio and related securities, including those the subject the matter of these proceedings, to LSF IX Paris Investments Limited (LSF) by way of purchase deed.

10 On the 14th January, 2015, LSF exercised its entitlement under the purchase deed to nominate the within plaintiff (Start) to purchase what are described as the purchased assets. On 3rd February, 2015 an accession deed was entered into between BOS and Start pursuant to which Start assumed certain of LSFs obligations under the purchase deed and became entitled to acquire the purchased assets. Accordingly, Start became the legal assignee of the mortgage the subject of the within proceedings.

11 By letter of 23rd February, 2015, the Kavanaghs were notified by Start that Start had taken over the mortgage (the ‘hello letter’) and they were notified by BOS by letter of 24th...