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Leave to submit late claim to Examiner’s Office refused
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High Court rules that assignee of rights attaching to judgment mortgage registered over Wexford property is not permitted to submit late claim to Examiner's Office proving same, on the basis that: (a) the applicant does not have locus standi as it has not produced the contractual documentation proving the assignment; and (b) as the previous creditor failed to take any action to assert its rights after a Credit Union obtained a well charging order in respect of the same property, the balance of justice does not favour the Court exercising its discretion to allow a late claim.
Application to submit late claim to Examiner's Office - Ord.55, r.36 of Rules of Superior Courts - applicant, Emberton Finance Ltd, purchased loan assets from Friends First in December 2013 - one such asset was judgment mortgage obtained in 2010 in respect of property of one borrower from Wexford - Halston Street Credit Union also obtained judgment against same borrower in respect of unredeemed loan - Halston Street Credit Union successfully obtained well charging order in respect of borrower's Wexford property - Advertisment for incumbrancers placed in national and local newspapers - letter from Halston Street Credit Union to Friends First in August 2013 further outlining threat to Friends First's claim - Friends First failed to submit claim to Examiner's Office prior to deadline of September 2013 - Emberton Finance Ltd now seeks to submit late claim - preliminary issue: whether plaintiff has locus standi to bring application - Court finds that Emberton does not have locus standi as it failed to produce relevant contractual documentation proving the assignment agreement with Friends First - for efficiency's sake Court considers substantive merits of application - whether Court should exercise discretion to grant special leave to submit claim - whether interests of justice favour allowance or refusal of claim - Court draws analogy with applications to set aside judgment in default of defence - whether Emberton is innocent party - Court raises concept of caveat emptor - Court notes that Emberton is commercial entity that entered into contract with Friends First with its eyes open - Court finds that Friends First failed to take any action to protect its position - Court finds Emberton cannot rely on the fact that it purchased loans after September 2013 - Court refuses to exercise its discretion allowing submission of late claim - whether inordinate and inexcusable delay - Court finds that delay of Emberton not inordinate and inexcusable as it acted promptly after loan purchase - accordingly, Court declines Emberton permission to submit late claim to Examiner's Office - Halston Street Credit Union's separate application for inspection of assignment contract under Ord.31, r.18 RSC is moot.
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