Trusted by the judiciary, government lawyers, prosecutors, and many leading counsel. Click here to request a subscription.
Trusted by the judiciary, government lawyers, prosecutors, and many leading counsel.
Click here to request a subscription.
No defence established to order of possession
|
or click here to request site subscription to search and view all judgments |
High Court dismisses appeal from Circuit Court order for possession of defendants' property, on the grounds that the bank made out its case for possession and the defendants failed to establish a defence.
Possession proceedings – appeal from the Circuit Court – Circuit Court ordered possession in favour of the bank - loan of €270,000 - Deed of Mortgage - charge was duly registered as a burden - term of the mortgage contract that if the defendants defaulted in the making of two monthly repayments or for two months in the payment of any other monies payable under the mortgage, the total debt would become immediately payable - failed to make repayments on the loan since on or about 28th October, 2014 - arrears stood at €26,327.95 – letter of demand – sought €261,862.07 – sought vacant possession - desirous of exercising its statutory power of sale - replying affidavit – sought forbearance due to redundancy - six forbearance arrangements - serious health problems - Mortgage to Rent .
Scheme – offered assisted voluntary sale – did not receive alternative Repayment Arrangement documents – considered that the defendants were outside the Mortgage Arrears Resolution Process - loan was deemed to be unsustainable - e market valuation of the property as €320,000 - Money Advice and Budgeting Service advised that they were endeavouring to find an acceptable repayment solution – arrears then stood at €43,279.86, with a total sum due on foot of the loan account being €272,208.58 - Circuit Court made possession orders with 6 month stay – appeal lodged - given liberty to adduce further evidence - supplemental affidavit - failure to provide the Court with details as to how the calculation of the applicable interest rate (being a variable rate) was calculated - lending history in relation to the mortgage is relevant to the Court’s consideration - alleged failure of the plaintiff to satisfy the Court that the provisions of the Consumer Credit Act, 1995 have been complied with - alleged contributory negligence - defence of contributory negligence is not open to the defendants - alleged unfair terms in the mortgage contract - alleged failure of the bank to satisfy the Court that there has been default on the part of the defendants - defendants’ particular circumstances –
Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.
