ENFORCEMENT OF SECURITY

See also Irish Land Law, ch 14.

In Bank of Ireland Mortgage Bank v Farrington [2018] IEHC 331 Coffey J ruled that the re-issue of possession proceedings after enactment of the Land and Conveyancing Law Reform Act 2013 (to get round an initial failure owing to the Start Mortgages problem) was not an abuse of process – it was not for an improper purpose but solely to avail of legislation enacted by the Oireachtas to ensure that secured creditors remained entitled to enforce their debts. However, the Bank was precluded from succeeding in its latest application for a possession order because, through inadvertence or otherwise, there had been a failure to vacate the possession order originally granted by the Circuit Court which on appeal had led to a case being stated as to the effect of Start Mortgages, but which was then struck out when the Bank indicated its intention to invoke the recently enacted 2013 Act. See also para 14.44.

In Permanent TSB plc v O’Connor [2018] IEHC 339 Barrett J accepted the borrower’s argument that, on an appeal against a Circuit Court order for possession, he should not hear the appeal but rather should remit the case for re-hearing in the Circuit Court because of a preliminary point raised on the appeal. This was that the Bank had failed to present full documentation relating to the mortgage loan at the original Circuit Court hearing. A remission was necessary in order to preserve the borrower’s right to two chances to challenge the Bank’s case – first in the Circuit Court and, secondly, on appeal, by way of a de novo hearing, in the High Court. See also para 14.50.

In Ulster Bank Ireland Ltd v Costello e [2018] IEHC 289 Faherty J upheld the possession order granted to the Bank by the Circuit Court in respect of the borrower’s family home and ruled that the borrower had failed to substantiate various defences. However, since the mortgaged property comprised the family home she was prepared to hear submissions on the issues of a stay on the order for possession or its execution. Faherty J took the same view, but adopted the same approach, in upholding the Circuit Court’s order for possession in respect of the borrower’s family home in Permanent TSB plc v Fox [2018] IEHC 292. See also para 14.52.

In Tyrell v Wright [2018] IECA 133 the Court of Appeal, in a judgment given by Irvine J (Hogan and Whelan JJ concurring), upheld McGovern J’s striking out in the High Court of the borrower’s challenge to the validity of the appointment of a receiver over his mortgaged property. The appointment had been upheld in previous proceedings before Costello J and this new challenge was an abuse of process. See also para 14.87.