High Court grants summary judgment for plaintiff on loan debt as defendants' defense deemed mere assertion.

THE HIGH COURT

[2025] IEHC 379 RECORD NO. 2023/205S BETWEEN

MARS CAPITAL FINANCE IRELAND DESIGNATED ACTIVITY COMPANY

PLAINTIFF

AND

GARY KANE AND ANDREA KANE (OTHERWISE ANDREA SPYROU)

DEFENDANTS

JUDGMENT of Mr. Justice Mark Heslin delivered on the 3rd day of July 2025

Introduction

1. Having issued a summary summons on 16 June 2023, the plaintiff seeks summary judgment against the defendants.

2. Briefly put, the plaintiff’s claim concerns a loan advanced to the defendants by its predecessor in title, for which the defendants gave security by way of a mortgage over their property. Whilst the plaintiff has brought separate proceedings in the Circuit Court seeking possession of that property, this application is for judgment in relation to a specific sum, arising from the defendants’ failure to repay the loan in accordance with the terms of same.

3. The plaintiff was represented by Mr. Martin BL. The first named defendant made submissions on behalf of both defendants. For reasons explained in an ex tempore ruling, I refused the defendants’ adjournment application, which was made at the commencement of the hearing on

29 May 2025.

4. Before looking at the claim, in detail, it is necessary to refer to certain legal principles. This is particularly important given that the defendants have chosen not to avail of legal representation.

Prima facie evidence of debt

5. In an application of this type, the plaintiff has to discharge the burden of placing before this Court prima facie evidence of the debt claimed. If that burden is discharged, the focus shifts to the defendants, their obligation being to put forward a credible defence. The foregoing is clear from the guidance given by Clarke C.J. in Bank of Ireland Mortgage Bank v. O’Malley [2019] IESC

84; 2 IR 487 (“O’Malley”), wherein the learned judge emphasised (at para. 24) that “…there is an obligation on any plaintiff to produce prima facie evidence of their debt if they wish the court to grant summary judgment …”. The then Chief Justice went on to make clear that “where a prima facie claim to a debt is established and the defendant wishes to put forward a positive defence….” it is necessary for the Court to assess “…whether what is said to amount to a defence amounts to mere assertion or meets the threshold for entitling the defendant to a full or plenary hearing”. At para. 25 in O’Malley, the learned judge stated:

“There are, therefore, two questions. The first is as to whether the plaintiff has put sufficient evidence before the court to establish a prima facie debt. If the answer to that question is no, then the plaintiff cannot be entitled to summary judgment in any event. If, however, the answer to that question is yes, then the court must go on to consider, in accordance with the established jurisprudence, whether the defendant has put forward a credible defence.” (emphasis added).

A credible defence

6. As to the correct approach to the question of whether a credible defence has been put forward, in Harrisrange Ltd. v. Duncan [2003] 4 IR 1; [2002] IEHC 14 (“Harrisrange”) Mr. Justice McKechnie conducted an analysis of prior jurisprudence, following which he identified (at para. 9 of his decision) 12 applicable principles, as follows:-

“(i) The power to grant summary judgment should be exercised with discernible caution,

(ii) In deciding upon this issue the Court should look at the entirety of the situation and consider the particular facts of each individual case, there being several ways in which this may best be done,

(iii) In so doing the Court should assess not only the Defendant's response, but also in the context of that response, the cogency of the evidence adduced on behalf of the Plaintiff, being mindful at all times of the unavoidable limitations which are inherent on any conflicting Affidavit evidence,

(iv) Where truly, there are no issues or issues of simplicity only or issues easily determinable, then this procedure is suitable for use,

(v) Where however, there are issues of fact which in themselves are material to success or failure, then their resolution is unsuitable for this procedure,

(vi) Where there are issues of law, this summary process may be appropriate but only so, if it is clear that fuller argument and greater thought, is evidently not required for a better determination of such issues,

(vii) The test to be applied, as now formulated is whether the Defendant has satisfied the Court that he has a fair or reasonable probability of having a real or bona fide defence; or as it is sometimes put, “is what the Defendant says credible?”, - which latter phrase I would take as having as against the former an equivalence of both meaning and result,

(viii) This test is not the same as and should be not elevated into a threshold of a Defendant having to prove that his defence will probably succeed or that success is not improbable, it being sufficient if there is an arguable defence,

(ix) Leave to defend should be granted unless it is very clear that there is no defence,

(x) Leave to defend should not be refused only because the Court has reason to doubt the bona fides of the Defendant or has reason to doubt whether he has a genuine cause of action,

(xi) Leave should not be granted where the only relevant averment in the totality of the evidence, is a mere assertion of a given situation which is to form the basis of a defence and finally,

(xii) The overriding determinative factor, bearing in mind the constitutional basis of a person's right of access to justice either to assert or respond to litigation, is the achievement of a just result whether that be liberty to enter Judgment or leave to defend, as the case may be.”

7. For the benefit of the defendants, it is appropriate to say that the legal principles concerning whether this Court should grant judgment on foot of a summary application such as this, or should send the claim (be it in whole or in part) to plenary hearing, are not in doubt. These principles are well settled and, for present purposes, the ‘Harrisrange principles’ lay down the correct approach.

8. I am particularly conscious that this Court’s power to grant judgment at the summary stage must be exercised with “discernible caution”. Taking nothing away from the foregoing, “mere assertion” will not amount to a bona fide, or credible, defence. The principle articulated at (ix) in Harrisrange seems to encapsulates matters succinctly, i.e. “Leave to defend should be granted unless it is very clear that there is no defence”. This echoes the approach by Hardiman J. in Aer Rianta Cpt v. Ryanair Ltd (No.1) [2001] 4 IESC 94, wherein the learned judge posed the question: is it ‘very clear’ that the defendant has no case?

9. Armed with this guidance, I now turn to the claim pleaded in the special indorsement of claim, which can be summarised as follows.

The plaintiff’s claim

10. AIB Mortgage Bank (later named AIB Mortgage Bank Unlimited Company) offered a loan facility to the defendants of €750,000, by loan offer dated 24 August 2010 (“the loan”). The loan was to be repaid by monthly instalments of capital and interest over a term of 32 years.

11. The defendants accepted the terms of the loan in writing and drew down the loan sum to account 93-02-53-61180115.

12. By mortgage sale agreement dated 18 February 2021, AIB Mortgage Bank Unlimited Company (“AIBNB”) agreed to sell, inter alia, the loan agreement dated 24 August 2010, to the plaintiff.

13. By deed of transfer dated 30 April 2021 AIBNB transferred and assigned the said loan agreement to the plaintiff.

14. The defendants were notified in writing of the said assignment and transfer of their loan to the plaintiff.

15. The defendants failed to make repayments in accordance with the terms of loan agreement of 24 August 2010.

16. By letter dated 23 November 2021 the plaintiff demanded that the defendants repay the sum of €57,748.22 which was the then outstanding arrears balance on the defendants’ loan account.

17. A further letter of demand issued on 26 January 2022 calling on the defendants to repay the sum of €665,124.33 being the total balance then outstanding on the defendants’ loan account.

18. Despite the said demands, the defendants failed, neglected or refused to pay the monies due to the plaintiff and the total sum of €668,543.96 was due and owing by the defendants to the plaintiff as of 31 May 2023.

19. Under cover of letters dated 24 May and 15 June 2023, respectively, the plaintiff furnished the defendants with statements concerning their loan account which provide a full breakdown of all transactions. Based on the particulars contained in the said statements, a breakdown of the total sum claimed by the plaintiff is set out, at para. 10 of the special summons, as follows:

“Loan agreement dated 24 August 2010 Account number 93-02-53-61180115”

Principal sum advanced: €750,000.00 Interest charged: €293,669.05 Total repayments and/or credits: €375,125.09

Balance as at 31 May 2023: €669,543.96

The plaintiff’s Motion

20. On 9 August 2023, the plaintiff issued a motion seeking liberty to enter final judgment against the defendants on a joint and several basis in the sum of €665,830.74 together with interest pursuant to contract and/or statute.

The grounding affidavit

21. The plaintiff’s application was grounded on an affidavit sworn on 8 August 2023 by Mr. Ronan Hopkins who made the following averments in relation to his authority and source of knowledge:

“1. I am a manager of the plaintiff in the above entitled proceedings. I am authorised by the plaintiff to make this affidavit for it and on its behalf and I do so from facts within my own knowledge and having examined the books and records of the plaintiff, save where otherwise appears and where so otherwise appearing I believe the same to be true and accurate.”

22. Mr. Hopkins proceeded to aver to the facts pleaded in the Summary Summons. He also exhibited a booklet of documents comprising of copies of the following:

(1) Loan Offer, dated 24 August 2010 (Part 7 of which bears the signatures of both defendants, witnessed by a named solicitor, by way of acceptance and consent, dated

27 August 2010) (the “loan agreement”);

(2) Mortgage Sale Agreement, dated 18 February 2021 (Schedule 1, Part 1 of which identifies the defendants’ loan agreement by number; and Part 2 of which identifies the defendant’s property address);

(3) Deed of Transfer, dated 30 April 2021 (the Schedule to which identifies the defendants’ loan agreement by number, borrower names and property address);

(4) 10 May 2021 letters from AIB to each of the defendants; and 18 June 2021 letters from the plaintiff to each of the defendants (giving notice of transfer of the defendants’ loan agreement to the plaintiff);

(5) 23 November 2021 letters, from the plaintiff to each of the defendants (demanding payment of arrears of €57,748.28 and giving notice that the balance outstanding, including arrears was then €665,056.78);

(6) 26 January 2022 letters, from the plaintiff to each of the defendants (demanding repayment of the balance, including arrears, outstanding of €665,124.33);

(7) Copy statements regarding the defendants’ account (covering the period 27 September 2010 to 01 August 2023);

(8) Letters dated 24 May and 15 June 2023, respectively, from Maples and Calder (Ireland) LLP, solicitors for the plaintiff, to the defendants (enclosing copy statements and ‘mortgage account summary’, which identify individual transactions and specify the total balance outstanding).

Business records

23. With regard to the said documentation exhibited on behalf of the plaintiff, Mr. Hopkins made the following averments in the grounding affidavit:

“4. I say and believe that the documents, copies of which are exhibited to this affidavit, are part of and contained within the ordinary books and records of the plaintiff and were compiled in the ordinary course of the plaintiff’s business, or in the ordinary course of the business of AIB Mortgage Bank Unlimited Company, save where otherwise appears, and were supplied by persons, including myself, who may reasonably be supposed to have had personal knowledge of the matters dealt with. The plaintiff hereby gives notice of its intention to rely on the documents exhibited hereto pursuant to s. 15 of the Civil Law (Miscellaneous Provisions) Act, 2020.”

The 2020 Act

24. As Mr. Justice Mulcahy stated at para. 23 of his judgment in Mars Capital Finance Ireland DAC & Anor v. Gallagher & Gallagher [2025] IEHC 210 (“Mars v. Gallagher”):

“The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 creates a presumption that documents prepared in the ordinary course of business are admissible as truth of their contents in civil proceedings:

‘13. Subject to this Chapter, in civil proceedings any record in document form compiled in the ordinary course of business shall be presumed to be admissible as evidence of the truth of the fact or facts asserted in such a document where such a document complies with the requirements of this Chapter’.”

25. Section 14 of the Civil Law (Miscellaneous Provisions) Act 2020 (the “2020 Act”) concerns the admissibility of business records, and begins:

“14. (1) Subject to this Chapter, information contained in a document shall be admissible in any civil proceedings as evidence of any fact in the document of which direct oral evidence would be admissible if the information –

(a) was compiled in the ordinary course of a business,

(b) was supplied by a person (whether or not he or she so compiled it and is identifiable) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with, and

(c) in the case of information in non-legible form that has been reproduced in permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned.

(2) Subsection (1) shall apply whether the information was supplied directly or indirectly but, if it was supplied indirectly, only if each person (whether or not he or she is identifiable) through whom it was supplied received it in the ordinary course of a business.”

26. Section 15 concerns “Notice of business records evidence” and provides:

“15. (1) Information in a document shall not, without the leave of the court, be admissible in evidence by virtue of section 14 at a civil trial unless –

(a) a copy of the document has been served on the other party or parties, or

(b) not later than 21 days before the commencement of the civil trial, a notice of intention so to give the information in evidence, together with a copy of the document, is served by or on behalf of the party proposing to give it in evidence on each of the other parties to the proceedings.

(2) A party to the proceedings on whom a notice has been served pursuant to subsection

(1) shall not, without the leave of the court, object to the admissibility in evidence of the whole or any specified part of the information concerned unless, not later than 7 days before the commencement of the civil trial, a notice objecting to its admissibility is served by or on behalf of that party on each of the other parties to the proceedings.”

Prima facie evidence of debt

27. In light of the averments made and the contents of the documents exhibited on behalf of the plaintiff, I am satisfied that, consistent with the principles outlined in O’Malley, the plaintiff has put forward prima facie evidence of the defendants’ indebtedness to it, in the sum claimed. Thus, the question is whether the defendants have put forward a credible defence. A range of arguments are canvassed in opposition to the plaintiff’s claim, to which I will presently turn. Before doing so, it is appropriate to note what is not in dispute.

Matters not disputed

28. The defendants do not deny entering into the loan agreement, which is the subject of these proceedings. The first page of exhibit ‘RH1’ to the grounding affidavit is a copy of “PART 1 PARTICUALRS OF OFFER OF MORTGAGE LOAN” (the “loan”) and it sets out inter alia the following in clear terms:-

“Offer date: 24 August 2010 Customer name: Mr Gary Kane & Ms Andrea Spyrou Mortgage loan amount: €750,000.00 Loan term: 32 years/384 months Loan type: variable annuity Rate applicable: 3.29 Amount of each instalment: €3,158.25 APR: 3.331% Property to be mortgaged: 5 Glenair Manor, Delgany, Co Wicklow Property price/estimated value of property: €990,000.00 Name and address of your solicitor: Actons…

The title to the above property must be registered in the name(s) of Mr Gary Kane and Ms Andrea Spyrou by whom the mortgage/charge must be executed. Title documents and perfected mortgage security as per solicitor’s undertaking should be forwarded to Allied Irish Banks plc… within 6 months of drawdown (or later if the delay is explained by your solicitor)…”

29. Thus, Part 1 specifies the individual-negotiated elements of the loan. The defendants do not dispute any of the foregoing terms. The last page of exhibit ‘RHI’ is a copy of “PART 7 ACCEPTANCE AND CONSENT”. It states inter alia the following:

“I/We accept the conditions of this Offer and agreed to mortgage the property to the lender as security for the mortgage loan…

I/We note that I/We will not at any time or in any circumstances be entitled to apply by way of set of any amount due from the lender to me/us, including any amount due under any account, such as a deposit account or otherwise, that I/we may at any time have with the lender against any amount due by me/us to the lender under this agreement or under my/our mortgage of the property when executed by me/us

I/We hereby irrevocably authorise and direct my/our solicitor to give the undertaking referred to in the pre-drawdown requirements (Part 3 (a)) of this offer…

I/We hereby confirm that I/we have read the within terms and conditions attaching to this offer, and acknowledged that I/we have received a copy thereof.

Dated this 27th day of August 2010…”

30. This is followed by the signatures of both defendants, witnessed by a named solicitor in Actons Solicitors (identified, at Part 1 of the loan, as the defendants’ solicitors). The defendants raise no issue with the foregoing. This is not a situation where there is, for example, a suggestion that the signatures on the loan are not genuine or a suggestion of duress. Nothing of the sort arises.

31. The defendants do not deny receiving the loan monies in question. They do not dispute that those monies were used by them to acquire the named property (in which they continue to reside). They do not dispute the fact that they defaulted in their repayment obligations. They do not suggest that they did not receive demands for repayment. They do not deny receiving detailed statements (exhibited at ‘RH1’) which set out, on an item by item basis, each transaction in relation to their loan, including the arrears which accumulated. They do not suggest that any transaction on these statements is incorrect. Nor have they raised any issue with the calculation of the quantum of their overall indebtedness.

Offer to pay

32. Furthermore, the second affidavit by Mr. Hopkins, sworn on 18 January 2024, contains inter alia the following averments:

“16. The fact is that there is no merit to any of the allegations made by the defendants as outlined in Mr. Kane’s affidavit. The defendants have acknowledged that they are indebted to the plaintiff and this is evidenced by oral submissions made by Mr. Kane to the Circuit Court, in a prior affidavit sworn by Mr. Kane on 9 December 2022 in the context of Circuit Court possession proceedings bearing record no. 2022/00221, and also in open correspondence sent by Mr. Kane, including an email dated 10 November 2023 in which Mr. Kane stated that ‘…my recollection is that I was to continue to pay the monthly instalment and engage with the Mortgagee both of which I have done…’

17. As can be seen from Mr. Kane’s affidavit sworn on 9 December 2022, he states as follows:

‘I made an offer to the plaintiff to pay the arrears in full…’”

33. Mr. Hopkins exhibits a copy of the affidavit sworn by the first named defendant, on 9 December 2022, as well as a copy of the aforementioned email, dated 10 November 2023 (exhibit ‘2RH3’ to the second affidavit sworn by Mr. Hopkins, on 16 January 2024). The affidavit sworn by the first named defendant, on 9 December 2022, in the Circuit Court possession proceedings, contains inter alia the following averments:

“1. I am the first defendant in these proceedings and I make this affidavit for the purpose of putting the honourable court on notice that I intend to defend these proceedings.

2. I say and believe that in advance of these proceedings I made an offer to the plaintiff to pay the arrears in full, in good faith, in lieu of addressing serious matters concerning the ownership of the property which came to my attention by the production of title deeds for my inspection by the plaintiff.” (emphasis added).

34. For the avoidance of doubt, the plaintiff in the Circuit Court possession proceedings is one and the same plaintiff in these proceedings. On any analysis, to make “an offer to the plaintiff to pay the arrears in full” is to acknowledge (i) the fact of arrears; and (ii) indebtedness to the plaintiff.

Payments to the plaintiff

35. In addition to the foregoing, whilst the defendants have not repaid the arrears, they have been making certain payments to the plaintiff. In making these payments, the defendants have never suggested that they are not indebted to the plaintiff. Indeed, during the hearing before me, the first named defendant laid emphasis on the fact of the payments to the plaintiff, by the defendants.

36. In an apparent attempt to explain why numerous payments had not been made to the plaintiff, the first named defendant’s oral submissions included:

“I remember when Mars wrote to me to say they were taking over the loan but they didn’t say how to pay”; and

“I didn’t know who to pay or what was going on”.

37. With respect - and leaving aside the fact that no such averments were made in either of the defendants’ replying affidavits - it is impossible to reconcile this submission with the contents of the letters from Mars, dated 18 June 2021, sent to each of the defendants, the receipt of which is not in dispute. Copies of these comprise part of exhibit ‘RH1’ and the letter from Mars to the first named defendant states, in relevant part:

“We are writing to notify you that the credit servicing activities previously undertaken by Allied Irish Banks plc (AIB) have now been transferred to Mars Capital Finance Ireland DAC (“MCFID”)…

Depending on your payment method you may need to make some changes. These are outlined below:

If you are making your payments via Direct Debit, you do not need to take any action. Future direct debits will be collected by MCFID with effect from the transfer date.

They will therefore appear on your bank statement under the reference of MCFID, with the new creditor ID of IE70SDD362425. If you wish to start paying via direct debit please complete and return the enclosed direct debit mandate form to the contact address quoted below at least 10 working days prior to your chosen payment date to ensure setup of your new direct debit.

If you are making your payments by standing order or electronic payment, please change your beneficiary details to the following with immediate effect:

Bank - AIB Account name - Mars Capital Finance Ireland DAC Bank ID – AIBKIE2D IBAN - IE57AIBK93101261158087 Reference - 93025361180115

If you wish to make an on-line payment, please visit www.marscapital.ie where as part of our commitment to working with borrowers and making it easier for you to make monthly payments we have created an on-line payment facility.

If you are making a payment by cheque, please make all cheques payable to Mars Capital quoting your account number and send to:

Mars Capital Finance Ireland DAC PO Box 13351 Dublin 2…”

Furthermore, under the heading “HOW DO I CONTACT MCFID?”, the letter to the first defendant gives details of the relevant postal address; telephone numbers; email address; and website, together with information on normal opening hours in respect of both “general enquiries” and “repayment difficulties”.

38. In oral submissions, the first named defendant went on to emphasise “I’ve been talking to Mars”, the thrust of his submission being that the defendants were anxious to come to an agreement in relation to their indebtedness to the plaintiff. On this topic, the first defendant was critical of the plaintiff, submitting “They’ve no interest in adding the arrears on to the end of the mortgage”. In response, it was submitted on behalf of the plaintiff that the defendants have refused to engage, in particular, by declining to provide financial information requested. Without it being necessary or appropriate to make any finding in relation to the foregoing, what can be said with certainty, having regard to the defendants’ actions and submissions to this Court, is that they accept that the plaintiff, alone, can give good discharge for their indebtedness. What, then, is the nature of the opposition to this application?

The defendants’ opposition to the claim

39. Consistent with the acknowledgment of indebtedness to the plaintiff, the defendants raise a plethora of what might be called ‘technical’ arguments in opposition to the plaintiff’s application for judgment. They can fairly be summarised as follow:

1. There was no summons served on the defendants;

2. The summary summons contains inadequate particulars of the debt;

3. This application is unjust, given the ongoing possession proceedings;

4. Title issues regarding the property have arisen in the possession proceedings;

5. The plaintiff’s evidence is inadmissible;

6. The defendants’ loan was not transferred on the date the plaintiff claims;

7. The defendants are unable to determine if the defendants’ loan, in fact, transferred;

8. The grounding affidavit exhibits loan conditions concerning a “Supplemental Mortgage Loan”, whereas the defendants’ was “the first Mortgage Loan on the property; and, belatedly:

9. The mortgage contains unfair terms.

There was no summons served on the defendants

40. Turning to the first of these arguments, para. 8 of the affidavit sworn by the first named defendant on 29 November 2023 contains the following averment:-

“I say and believe no summons was served on your deponent including the indorsement of claim”

41. The foregoing is impossible to reconcile with the fact that each of the defendants entered Appearances, in person, on 14 July 2023, which give notice that each Appearance was entered:-

“… at the Central Office, Four Courts, Dublin… to the originating summons in this action”

(emphasis added).

42. Furthermore, the evidence before me includes a copy of a letter, dated 6 December 2023, from the plaintiff’s solicitors to the defendants (“exhibit ‘2RH1’ to the second affidavit sworn by Mr. Hopkins on 16 January 2024”) which stated inter alia:

“Notwithstanding the fact that you have been in receipt of the summary summons since 20 June 2023 and our client’s motion papers seeking inter alia to enter final judgment against you since 14 August 2023, you did not deliver a replying affidavit until 4:37p.m. on 29 November 2023, the evening before the matter was listed to come before the High Court.

The timing of delivery of your affidavit can only be assumed to be an attempt to delay matters, as it necessitated the proceeding being adjourned. It is also entirely disingenuous to claim in your replying affidavit as you do that the summon summons was not served upon you.

Firstly Ms. Kane was personally served with the summary summons on 28 June 2023 and Mr. Kane was personally served with the summary summons on 1 July 2023. We enclose a copy of the endorsed summary summons by way of service upon you which evidences the dates and time of personal service and in addition, the summary summons was served by you by email and by certified post under cover of our letter dated 20 June 2023.

Secondly, you both entered appearances to the summary judgment proceedings on 14 July 2023. Clearly you are in receipt of the summary summons as an appearance could not have been entered without you have been served with the proceedings…”

43. The assertion that proper service has not occurred is no more than that, i.e. a ‘bald’ assertion which lacks any evidence to underpin it. Indeed, it is utterly undermined by evidence to the contrary. It plainly does not constitute a credible defence to the plaintiff’s claim.

Inadequate particulars of debt

44. At para. 7 of his replying affidavit, the first named defendant make the following averments:

“I say and believe the plaintiff has failed refused and negated (sic) to comply with the test imposed by the Supreme Court, with reference to Order 4 rule 4 of the Rules of the Superior Courts, the said test established the required level of detail in the indorsement of claim.”

45. The foregoing is plainly a reference to the Supreme Court’s decision in O’Malley. For the reasons given by Clarke C.J., the special indorsement of claim in O’Malley was found to contain:

“…insufficient details of how the sum claimed is calculated so as to meet the requirements of O.4, r.4 of the Rules of the Superior Courts to the effect that all necessary particulars be provided. The information is insufficient to allow, as the jurisprudence requires, a defendant served with a summary summons in that form to know whether they should concede or dispute the claim.” (see para. 8.1.).

46. That is not the position in this case. Furthermore, in O’Malley, the then Chief Justice went on to say:

“…in my view, it is possible to rely on documentation available to a defendant (such as bank statements or statements of account) for the purposes of providing sufficient particulars in a special indorsement of claim, but only where the document or documents in question are incorporated by reference into the text of the endorsement.” (see para.

8.1; emphasis added).

47. Whilst no such incorporation occurred in O’Malley, it certainly did in the present case. Having referred to demands served on the defendants, on 23 November 2021 and 26 January 2022, paras. 10 - 13 of the special indorsement of claim in the summary summons go on to plead:

“10. Despite the said demands, the defendants failed, neglected or refused to pay the sums due to the plaintiff and the total sum of €668,543.96 remains due and owing by the defendants to the plaintiff as of 31 May 2023 as more particularly set out below.

PARTICULARS

Loan agreement dated 24 August 2010

Account number 93-02-53-61180115

Principal sum advanced: €750,000.00 Interest charged: €293,669.05 Total repayments and/or credits: €375,125.09 Balance as at 31 May 2023: €669,543.96

11. The above particulars are based on statements of account for the defendants’ said loan account which provide a full breakdown of all transactions on the said account. The plaintiff furnished copies of the said statement to the defendants under cover of letters sent on 24 May 2023 and 15 June 2023 and the plaintiff will rely on same at the hearing of the action.” (emphasis added).

48. In the present case, and unlike the situation in O’Malley, the special indorsement of claim makes explicit reference to statements of account which were provided to the defendants. These statements particularise the debt in the clearest of terms. Nor do the defendants take issue with the accuracy of the content of those statements.

49. Turning to look more closely at the contents of the statements, exhibit “‘RH1’ – Tab 7” to the grounding affidavit is compromised of the following:

(i) 26-page “Statement of account with AIB Mortgage Bank”; “Account name: G Kane & A Spyrou Home Loan A/C”; “Account number: 61180-115” covering the period 27 Sept 2010, to 21 Jun 2021; and

(ii) 5-page “Mars Capital” statement “Mortgage account number: 930253 6118 0115 Motgagor Mr G Kane and Miss A Kane” covering the period 01/06/2021 to 01/08/2023.

50. The AIB Statements, described above, record inter alia: a “Debit” entry called “Lending” on “27 Sept 2010” in the sum of “€750,000.00” (see page 1 of 26); numerous “Debit” entries, from “30 Aug 2012” onwards, entitled “A.I.B. Unpaids” (see page 3 of 26); a “Debit” entry, on “30 Apr 2021”, of “€3,206.77” described as “Unpaid DD”; and an entry on the same date entitled “Balance €659,224.01” (see page 25 of 26).

51. Under the heading “Payment Due”, the Mars Capital Statements contain 21 entries of “€3,326”, between “01/06/2021” and “01/02/2023”; and 7 entries under the heading “Payment Made” during the same period. This is followed by 6 entries of “€3,552” under the “Payment Due” heading, with 3 entries recorded under the “Payment Made” heading for that period.

52. Exhibit “‘RH1’ – Tab 8” contain further copies of AIB and Mars Capital statements, as provided to the defendants under cover of a 24 May 2023 letter from the plaintiff’s solicitors. Exhibit ‘2RH2’ to the second affidavit sworn by Mr. Hopkins on behalf of the plaintiff comprises Mars Capital statements, printed on 16 January 2024, showing the “Balances as at the last month end: 31/12/2023”, including “Overdue mortgage payments: €94, 059.24”; “Interest on overdue payments: €6,969.62”; “Total sum of payment shortfall: €101,028.86”; and “Total balance outstanding on your mortgage €664,189.77”.

53. At the risk of repetition, the defendants do not dispute the contents of any of these statements, which plainly evidence their default. Nor do they take issue with the fact of their default; the entitlement of the plaintiff to serve demands; and/or the quantum due.

54. In short, the assertion that the particulars of the plaintiff’s claim breached the O’Malley principles, or were inadequate having regard to the requirements of O.4, r.4 RSC, is entirely without merit and does not constitute a credible defence to claim. In the present case, the plaintiff, from the outset, did precisely what O’Malley requires.

This application is unjust, given the ongoing possession proceedings

55. At para. 10 of the first named defendant’s affidavit sworn on 29 November 2023 he avers:

“10. I say and believe that the plaintiff herein has advanced Circuit Court possession proceedings and these proceeding being advanced in the High Court is costly and unjust in the circumstances where enforcement proceedings have already advanced and are being defended.

11. I say and believe there is no economic benefit to these proceedings and they form a further unnecessary and unjust economic burden on your deponent in respect of concurrent legal fees being incurred by the plaintiff in two sets of proceedings seeking a similar outcomes.

12. I say and believe the underlying mortgage documents have been misrepresented by the plaintiff in the possession proceedings and the plaintiff is aware of the issues and has advanced these proceedings in bad faith.”

56. There is no merit in the defendants’ argument that it is “unjust” for the plaintiff to bring these proceedings. There is nothing to prevent a plaintiff from seeking different relief in separate proceedings (i.e. possession of property in circuit court proceedings). The claim that mortgage documents have been “misrepresented” in possession proceedings is a ‘bald’ assertion which is not underpinned by any facts. More importantly, it is a matter for the court dealing with the possession proceedings. The proposition that the two sets of proceedings seek “similar outcomes” is incorrect, given the very different nature of the relief being sought in the two different cases in two different jurisdictions. The fact that legal fees will be incurred by the plaintiff in two sets of proceedings is a matter for the plaintiff.

57. The defendants would appear to contend that if there are issues in dispute in Circuit Court proceedings (in which possession of property is sought) it is inappropriate for the plaintiff to bring proceedings in this Court, seeking different relief (judgment for a specific sum). The defendants are mistaken. Nor have they proffered a shred of evidence to support the ‘bald’ assertion that these proceedings have been brought in “bad faith”. Again, this issue does not constitute the basis for a credible defence. I am fortified in these views by the following.

58. In the Supreme Court’s decision in Ulster Bank Ltd. v. Lyons & Anor [2003] 4 IR 28 (“Ulster Bank v. Lyons”), Keane C.J. stated:

“I know of no basis on which it could be said that a plaintiff in the position of the bank in this case, was precluded from issuing these two sets of proceedings on the basis that he might or might not have been permitted to couple his claim depending on what view the court took of the matter, for the liquidated sum in its special summons. He was perfectly entitled, in my view, to issue both sets of proceedings. They are clearly different forms of proceedings, one solely concerned with the order for possession and there is a special procedure prescribed for it and a mortgagee’s right to possession may not depend on his being owed any particular amount. Indeed there may be circumstances in which he is entitled to possession even without there being any default on the part of the mortgagor, but it is unnecessary to consider those ramifications of the relevant law in this case. It is sufficient to say that the rules clearly envisage that proceedings in which a mortgagee seeks an order for possession are properly brought by a special summons, and those in which he seeks relief in the form of a judgment for a liquidated sum are brought by way of summary summons and there is no reason why a mortgagee seeking an order for possession should seek to join with it an order which is properly brought by way of a summary summons, in the case of a claim for liquidated sum.” (emphasis added).

59. In light of the foregoing, there is no merit whatsoever in the defendants’ argument that it is unfair or inappropriate for a plaintiff to bring ‘parallel’ proceedings (i.e. seeking an order for possession in Circuit Court proceedings and seeking judgment from this Court in respect of a liquidated sum).

60. Indeed, the principle outlined in Ulster Bank v. Lyons applies with even greater force given that (i) the Circuit Court is vested, per s. 3(2) of the Land and Conveyancing Law Reform Act, 2013, with jurisdiction to deal with claims by a mortgagee seeking possession; and (ii) the quantum of the claim, the subject of these proceedings, exceeds the jurisdiction of the Circuit Court [See also the decision of Mr. Justice Dignam in Everyday Finance DAC v. O’Shea [2025] IEHC 75, wherein the learned judge applied Ulster Bank v. Lyons, dismissing an argument of the type the defendants seek to make in this case].

61. During the hearing, I was informed that the Circuit Court possession proceedings are currently the subject of a ‘stay’, pending the outcome of the present proceedings. In circumstances where the former is next before the Circuit Court on 29 July 2025, I gave a commitment to deliver this judgment in advance of that date.

Title issues

62. In the second affidavit sworn by Mr. Kane, on 5 March 2024, he refers inter alia to what he describes as “underlying issues with the title of the property”. From para. 4 onwards, Mr. Kane makes averments in relation to these issues, including, what he describes as the “…failure by my former solicitor to comply with his undertaking in respect of the mortgage and security”. He proceeds to aver, inter alia, that:

“Rather than a deed of conveyance underlying the purchase of the property, a ‘Building Contract’ was executed on the 3 September 2010. This deed purports to be a building contract in the amount of €790,000…” (para. 7);

“On the 26 October 2010, and indenture was drafted, this document purports (sic) the purchase of ‘the lands’ by your deponent and my wife in the amount of €200,000…” (para. 8);

“For clarity I say and believe I purchased the property in the amount of €990,000 and believed I had signed the relevant contracts to effect a legitimate transaction…” (para. 12).

63. The issues raised by the defendants relate to a transaction to which neither AIB nor the plaintiff were a party, i.e. the defendants’ purchase of property, for which they retained a solicitor. Whatever about their potential significance to the Circuit Court possession proceedings, these ‘title issues’ are of no relevance to the present application.

64. The title issues are addressed in the following terms from para. 9 onwards of the third affidavit sworn by Mr. Hopkins, on 14 June 2024:

“9. …in essence, at the time the defendants entered into the loan the subject of these proceedings for the purpose of acquiring their home at 5 Glenair Manor, Delgany, County Wicklow and the mortgage which secured that loan, they were under an obligation to procure the mandatory first registration of that property in the Land Registry. Once their title to the property was registered, they were also required to register the mortgage in favour of AIB over the newly created folio. Unfortunately, the defendants’ solicitor at the time appears to have failed to take those steps. The result is that no folio was created recording the defendants’ title to the property, or the plaintiff’s charge over that property.

For the avoidance of doubt, the defendants’ title to the property and the plaintiff’s mortgage have been registered in the Registry of Deeds.

10. However, fundamentally, I believe none of that alters the fact that the defendants did acquire and move into the property, which is now valued at over €1 million, and have been living there for over a decade. They contractually agreed to provide security over that property to secure the loan the subject of these proceedings. If the defendants themselves are unwilling to resolve the title issues for which they are legally responsible, the plaintiff would be willing and able to resolve those issues after it takes possession of the property for the purpose of selling it to redeem the outstanding debt.

11. I say that the balance outstanding on the defendants’ loan account as of 31 May 2024 was €663,517.44 and in that regard, I beg to refer to updated statements of account, evidencing the said indebtedness…”

65. For the purposes of the present application, the foregoing evidence is uncontroverted. Furthermore, in the manner previously examined, the defendants’ loan made explicit (at PART 1) that: “The title to the above property must be registered in the name(s) of Mr Gary Kane and Ms Andrea Spyrou by whom the mortgage/charge must be executed. Title documents and perfected mortgage security as per solicitor’s undertaking should be forwarded to Allied Irish Banks plc… within 6 months of drawdown (or later if the delay is explained by your solicitor)…”. Moreoever (at PART 7) the defendants authorised and directed their solicitor to provide the relevant undertaking.

66. For the purpose of these proceedings, nothing turns on the title issues raised by the defendants, including, the apparent breach of the relevant solicitor’s undertaking, resulting, inter alia, in non-registration, in the Land Registry, of the charge created by the mortgage. The present application is for judgment on foot of the loan agreement. No relief is sought on foot of the mortgage agreement. For these reasons title issues do not constitute a credible defence.

The plaintiff’s evidence is inadmissible

67. The defendants would appear to take issue with this Court’s ability to rely on the averments made by Mr. Hopkins and to have regard to the contents of the documentation which he exhibits, on behalf of the plaintiff. The argument is put as follows in the first named defendant’s affidavit sworn on 29 November 2023:

“2. I say and believe the Plaintiff is a third party stranger to the original loan offer and purported mortgage.

3. I say and believe the Deponent Ronan Hopkins is a third party stranger to the books and records compiled in the ordinary course of business of AIB Mortgage Bank Unlimited Company, on which his statement and averments rely.”

68. Earlier in this judgment I quoted, verbatim, para. 1 of the grounding affidavit in which Mr. Hopkins averred to his (i) role; (ii) authority; and (iii) source of knowledge. Mr. Hopkins made similar averments at para. 1 of his second affidavit (sworn on 18 January 2024). At para. 1 of the third affidavit sworn by Mr. Hopkins (on 14 June 2024) he averred:

“1. I am a manager from Mars Capital Finance Ireland Designated Activity Company. As part of my role as manager, I am responsible for managing and overseeing these proceedings on behalf of the plaintiff. I make this affidavit on the plaintiff’s behalf and with its authority, from facts within my own knowledge and from a diligent perusal of its books and records, save where otherwise appears and where so otherwise appearing I believe the same to be true.” (emphasis added).

69. Several comments seem appropriate. First, no evidence whatsoever has been put forward by the defendants which might cast doubt on the veracity of the averments made by Mr. Hopkins. Second, the defendants do not take issue with the admissibility, or contents of, the plaintiff’s records, including, statements produced by Mars in relation to the defendants indebtedness, exhibited at ‘RH1’. Third, the manner touched on earlier, the defendants accept that they entered the loan agreement (PART 1 of which sets out individually-negotiated terms; and PART 7 of which they signed by way of acceptance). Fourth, nowhere do the defendants assert that their loan agreement, and/or the AIB statements regarding their indebtedness pursuant to same, were not compiled in the ordinary course of AIB’s business. Indeed, the averment at para. 3 explicitly refer to “the books and records compiled in the ordinary course of business of AIB” (emphasis added). Thus, the defendants’ argument is not that the AIB loan and bank statements are not business records. Rather, the defendants appear to argue that, in order for these AIB records to be admissible, they must be exhibited by the person in AIB who created them, or an authorised officer of AIB (i.e. someone who is, as they put it, not a “third party stranger to the books and records” in question). A similar issue arose in Mars v. Gallagher, which Mulcahy J. dealt with as follows:

“31. In my view, the defendants’ apparent contention that for documentary evidence to be admissible under the 2020 Act, it must be proved by a person who might reasonably be expected to have personal knowledge of the matters contained within the documents, reflects a misunderstanding the scope of section 14 and, moreover, is plainly at odds with the literal wording of that section. Section 14 is concerned with the nature of the information contained in business records which is capable of being admitted as evidence of the content of those records, not with the identity of the person who compiled the document or information contained within it, still less the person who supplied the documents.

32. Section 14(1) describes the type of information contained in documents which is admissible as evidence. It is information which would be admissible from an individual if that person were giving oral evidence, i.e. information compiled in the ordinary course of business of which that person had personal knowledge, whether or not they had compiled that information. Section 14(1)(b) makes clear that it is not necessary that the person who compiled the information be identifiable for the purpose of having the documentary evidence admitted. Indeed, such a requirement would wholly undermine the purpose of the provisions of the relevant part of the 2020 Act (Part 3, Chapter 3) which, as described in the long title to the Act is “to provide for the admissibility, in certain circumstances, of business records in civil proceedings.” If the person seeking to have documents admitted in evidence has personal knowledge of the matters dealt with in those documents, reliance on the 2020 Act is unnecessary…”

70. I am satisfied that all of the records upon which the plaintiff relies (including, the AIB loan agreement and the statements produced by AIB) are business records within the meaning of the 2020 Act. Guided by the analysis in Mars v Gallagher, I am satisfied that they are admissible.

71. On the question of admissibility, the Supreme Court’s decision in Ulster Bank Ltd v. O’Brien & Ors [2015] 2 IR 656; [2015] IESC 96 (“Ulster Bank v. O’Brien”) is also relevant. At paragraph [6] of her judgment, Ms. Justice Laffoy stated:

“[6]. The jurisdiction invoked by the Bank in filing the notice of motion on 16th October, 2013 was the jurisdiction conferred by Order 37 of the Rules. Order 37, rule 1, insofar as is relevant for present purposes, provides as follows:

‘Every summary summons indorsed with a claim (other than for an account) under Order 2 to which an appearance has been entered shall be set down before the Master by the plaintiff, on motion for liberty to enter final judgment for the amount claimed, together with interest (if any), . . . Such motion shall be . . . supported by an affidavit sworn by the plaintiff or by any other person who can swear positively to the facts showing that the plaintiff is entitled to the relief claimed and stating that in the belief of the deponent there is no defence to the action. . . .”

It is clear on the wording of that rule that, as regards proof of the claim, an affidavit sworn by a person other than the plaintiff who can swear positively to the relevant facts is sufficient. However, the later provisions of Order 37 are protective of the defendant. For instance, under rule 2, although it is stipulated that the motion for liberty to enter judgment under that order shall be heard on affidavit, there is a proviso that any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing requiring the production of the deponent for cross-examination, and “unless such deponent is produced accordingly his affidavit sha l not be used as evidence unless by special leave”. Further, under rule 3 it is provided that the defendant may show cause against the motion by affidavit.”

72. In the present case, the defendants chose not to seek cross-examination of the plaintiff’s deponent(s).

73. In circumstances where Mr. Hopkins has (i) averred to his role; source of knowledge; and authority to swear on behalf of the plaintiff; (ii) the plaintiff has invoked the provisions of the 2020 Act; (iii) the documents relied upon by the plaintiff are all business records within the meaning of the 2020 Act; and (iv) the defendants do not assert that any records relied upon were not compiled in the ordinary course of business, be they AIB records or the plaintiff’s, I am satisfied the defendants have not made out any credible defence on this issue. I am fortified in this view by Mr. Justice Charleton’s analysis in Ulster Bank v O’Brien wherein he stated:

“[23] Civil proceedings for the enforcement of debt are an exercise of the constitutional right to litigate. Such a case carries procedural solemnity and is attendant with safeguards as to service. Within that context, the swearing of an affidavit and its service in court proceedings which make allegations that a sum is due, can be accepted in the absence of denial, where the form and the content of what is deposed to and the exhibits supporting it carry sufficient indications of reliability. Part of the matrix of facts to be considered is whether the documentary evidence establishes a relationship whereby the obligation to pay for goods or services, or to repay a debt, are properly referenced and exhibited. In that regard, the procedural safeguards of court proceedings as to service, coupled with the ability to make an appearance and to formally deny the existence of a debt, that where otherwise to contest liability to pay by reference to a collateral contract or some defect in goods and services, or some other appropriate defence, may give rise to an ability in the court to act against the party failing to make any denial. As a matter of law, where circumstances indicate that a reasonable person would have responded to an allegation in the context of an appropriate commercial relationship where money is due, but does not so respond, an admission may be set up. The court may act in that situation.” (emphasis added).

74. In my view, the form and content of the plaintiff’s evidence, in particular, the records exhibited, undoubtedly “carry sufficient indications of reliability” and I am very satisfied as to its admissibility. In short, this issue does not amount to a credible defence. Not only that, for the purposes of an alternative argument, the defendants rely on the contents of the AIB statements “placed in evidence by the plaintiff”, and I now turn to that argument.

The defendants’ loan was not transferred on the date the plaintiff claims

75. From para. 4 onwards of his 29 November 2023 affidavit, the first named defendant avers:

“4. I say and believe the Deed of Transfer referred to in the affidavit of Ronan Hopkins discloses on its face the transfer took place on the 30th April 2021.

5. On a perusal of the statements of AIB Mortgage Bank also placed in evidence by the plaintiff it is apparent that the loan remained on the books of AIB Mortgage Bank up to and including June 2021.

6. I say and believe this is prima facie evidence the loan was not transferred on the date the plaintiff claims.” (emphasis added).

76. To understand why this argument lacks merit, it is necessary to look at the following. At para. 7 of the grounding affidavit Mr. Hopkins avers inter alia that “By Deed of Transfer dated 30 April 2021, AIB Mortgage Bank transferred and assigned the loan agreement, dated 24 August 2010, to the plaintiff”. The fact that the transfer of the defendant’s loan took effect on 30 April 2021 and the practical steps which occurred between then and 18 June 2021 (the “transition period”) are averred to by Mr. Hopkins in his second affidavit, sworn on 16 January 2024, as follows:

“7. I believe that the fact the defendants’ loan continued to be shown on the AIB account statements until June 2021 does not mean the defendants loan was not transferred to the plaintiff in the manner the plaintiff has claimed. I believe it is correct that the assignment of the loan as a matter of law took effect on or about 30 April 2021, but it took time to give practical effect to this by fully migrating all accounts unto the plaintiff’s system. No prejudice was caused to the defendants by this – for example, payments made by the defendants during May 2021 were properly credited against their indebtedness and show up on the AIB statements…

11. I say that during the period between the agreement to sell the loan and the migration date (i.e. the point at which the plaintiff became the party responsible for issuing statements) AIB administered the loan on its system. Whilst the loan was owned by the plaintiff, AIB remained the party who issued loan account statements and held the loan on its system. This is generally known as the transition period. The transition period ended on

18 June 2021 following which the loan went live on the plaintiff’s system and the plaintiff became the provider of loan account statements.” (emphasis added).

77. The foregoing facts are reflected in the information which was provided to the defendants at the relevant time. In the manner averred by Mr. Hopkins, at para. 8 of the grounding affidavit, the defendants were notified in writing of the assignment and transfer of their loans to the plaintiff, by letters dated 10 May 2021 (from AIB) and 18 June 2021 (from the plaintiff), respectively. The 10 May 2021 letters, sent by AIB to each defendant, state inter alia the following:

“We confirm that the transfer of your Loan(s), together with all relevant details relating to the Loan(s) including personal data, and certain related security, guarantees and other rights ‘the security’ was completed on 30 April 2021 (“the Transfer Date”). Therefore, all our rights under your Loan(s) together with the relevant facility letter(s) and Security have transferred to the purchaser.

We will continue to provide certain services in relation to your Loan(s) for approximately 2 months following the Transfer Date (“the Transitional Period”) with the balance of the services to be provided during the Transitional Period by Mars Capital Finance Ireland DAC.

During the Transitional Period you should continue to direct all queries to us as per the contact details provided in the final paragraph below.

Mars Capital Finance Ireland DAC will contact you before the end of the Transitional Period to tell you when it will end and to confirm details of the servicing arrangements after it ends…” (emphasis added).

78. By letters dated 18 June 2021, the plaintiff contacted the defendants and, in the following terms, informed each of them that the transition period had come to an end:

“We are writing to notify you that the credit servicing activities previously undertaken by Allied Irish Banks, Plc (“AIB”) have now transferred to Mars Capital Finance Ireland DAC (“MCFID”) with effect from 18 June 2021. Details of this transfer were previously advised to you by AIB on 10th May 2021…

Payments in the agreed amounts and on the agreed dates as set out in your loan continue to apply. If you are unable to make an agreed payment now, or at some future date please contact our servicing team using the telephone contact details quoted below.

If you are making your payments via Direct Debit, you do not need to take any action.

Future Direct Debits will be collected by MCFID with effect from the Transfer Date. They will therefore appear on your bank statement under the reference of MCFID, with new creditor ID of… If you wish to start paying via direct debit please complete and return the enclosed direct debit mandate form to the contact address quoted below at least ten working days prior to your chosen payment day to ensure setup of your new direct debit…”

(emphasis added).

79. In short, the evidence before this Court is that the defendants’ loan was transferred to the plaintiff, as of 30 April 2021. In the manner (i) explained in letters sent to each defendant at the time; and (ii) averred to by Mr. Hopkins on behalf of the plaintiff, AIB provided certain services in relation to the defendants’ loan during the Transitional Period, from 30 April 2021 to 18 June 2021, i.e. “whilst the loan was owned by the plaintiff, AIB remained the party who issued loan account statements and held the loan on its system” (per para. 11 of the second affidavit of Mr. Hopkins, sworn on 18 January 2024). During this transition period, loans acquired by the plaintiff on 30 April 2021, including the defendants’ loan, migrated from AIB’s system to the plaintiff’s system. The foregoing is reflected in the contents of the statements exhibited. However, there is not a shred of evidence that the transfer did not occur on 30 April 2021. Hence, this issue does not constitute a credible defence.

Unable to determine if the defendants’ loan, in fact, transferred

80. At para. 9 of the affidavit sworn, on 29 November 2023, the first named defendant articulates a related argument, for which the defendants rely, once more, on the contents of “the AIB Mortgage Bank statements”:

“9. I say and believe the discrepancy between the dates as per the Deed of Transfer and the AIB Mortgage Bank statements leaves your deponent unable to determine as a matter of fact the truth of the claim by the plaintiff that the mortgage loan was transferred.”

(emphasis added).

81. In the manner explained earlier, there is no “discrepancy” in relation to the date of transfer. Nor is there any doubt as to the fact, and absolute nature, of the transfer. This is clear from the contents of the Deed of Transfer dated 30 April 2021 (exhibit ‘RH1’ to the grounding affidavit) which describes the plaintiff as the “Buyer” and states inter alia:

“1. In consideration of … (the receipt of which is hereby acknowledged) the Sellers as beneficial owners, free from Encumbrances and as the registered owners or, as applicable, the parties entitled to be registered as owners, hereby unconditionally, irrevocably and absolutely grant, convey, assign, transfer and assure unto the Buyer, subject to the subsisting rights of redemption of the Borrowers and any Obligor and to the extent capable of assignment, all of their rights, title, interest and benefit (past, present and future) in and under each Underlying Loan, each Mortgage Asset and each of the Finance Documents and including, but not limited to, the following:

1.1 all right, title, interest, benefit and obligation of the sellers in the Security Documents including without limitation to the mortgages, charges, security assignments and other Security Interests (including any other arrangements to create or effect any of the foregoing) relating to the Underlying Loans and Finance Documents;

1.2 the benefit of and the right to sue on all covenants with and undertakings to the Sellers in each Security Document and the other Finance Documents and the right to exercise all powers of the Sellers in relation to each Security Document and the other Finance Documents at the relevant date of Completion…” (emphasis added).

82. In short, the defendants have furnished nothing whatsoever to undermine the evidence that, on 30 April 2021, AIB transferred to the plaintiff, absolutely, all rights in the defendants’ loan. Once more, there is no credible defence put forward.

Loan conditions – Supplemental Mortgage Loan

83. In the second affidavit sworn by Mr. Kane on 5 March 2024 he raised the fact that certain terms and conditions (i.e. PART 3; 4; and 5) exhibited in the grounding affidavit related to a “Supplemental Mortgage Loan”, whereas the defendants’ was “the first Mortgage Loan on the property” (see para. 27 of Mr. Kane’s second affidavit).

84. It is common case that the defendants received their original contract in full (comprising of parts 1 – 7). Earlier in this judgment I quoted extensively from part 1 (the particulars of loan offer) and part 7 (the defendants’ signed acceptance and consent). Part 2 comprised of special conditions, whereas part 6 related to a spouse’s consent, under the Family Home Protection Act, 1976 (of no relevance in this case where both defendants were borrowers). It is also common case that parts 3, 4, and 5 were not individually-negotiated and were in standard pre-printed form. This matter is fully addressed in the third affidavit sworn by Mr. Hopkins, on 14 June 2024, as follows:

“4. Following the transfer of the loan to the plaintiff, AIB Mortgage Bank provided the plaintiff with copies of parts 1, 2, 6 and 7 of the subject loan agreement, which, once executed, were unique to the defendants. AIB mortgage Bank separately provided various iterations of parts 3, 4 and 5 for loan agreements, which comprised terms which were not individually negotiated, namely pre-drawdown requirements (part 3), general terms and conditions (part 4), and statutory notices (part 5).

5. It seems that when my grounding affidavit was being prepared, a copy version of parts 3, 4 and 5 referable to supplemental mortgages was included with the copy of the loan agreement exhibited, whereas in fact a slightly different version of parts 3, 4 and 5 was applicable to the Defendants’ loan. I beg to refer to a copy of parts 3, 4 and 5 which were applicable to the Defendants’ loan, upon which, marked with the letters ‘3RH1’ I have signed my name prior to the swearing hereof.

6. Importantly for present purposes, clause 8 of the general conditions comprised in part 4, has the same substantive effect in both versions. In the version applicable to the defendants’ loan exhibited herewith, clause 8 states that:

‘The Bank may, subject to due compliance with any statutory requirements, exercise the right to demand early repayment of the Mortgage Loan balance outstanding and accrued interest thereon if the customer is in breach of the terms of this offer or the Lenders’ Mortgage over the property where, after due notice is given by the Bank, the Customer fails to remedy the breach.’

7. As set out in my second affidavit, the First Named Defendant has previously acknowledged that he is in arrears in respect of the loan the subject of these proceedings.

The plaintiff called upon the defendants to clear the arrears on their loan by letter dated

23 November 2021 (exhibited with my grounding affidavit) which the defendants did not do. The plaintiff therefore became entitled to demand repayment of the entire mortgage balance, which it did by letter dated 26 January 2022 (also exhibited with my grounding affidavit).

8. For completeness, AIB previously wrote to each of the defendants by letter dated 17 June 2019 for the purposes of complying with its obligations under the Central Bank’s code of conduct on mortgage arrears. Those letters advised the defendants at that juncture that they had arrears of €10,883.30 on their mortgage loan. I beg to refer to copies of those letters, upon which, marked with the letters ‘3RH2’ I have signed by name prior to the swearing hereof.”

85. The defendants have taken no issue with these averments, which comprise uncontroverted evidence, for the purpose of this application. The defendants do not suggest that parts 3, 4, and 5 comprising exhibit ‘3RH1’ are other than the correct terms and conditions. Nor do they deny the lender’s right to make demand in the event of default, which is, in substance, the same in both versions of clause 8 of part 4 (general conditions).

86. The letters comprising exhibit ‘3RH2’ are addressed to each of the defendants, respectively, are identical in terms and begin as follows:

“Property: 5 Glenair Manor, Delgany, Co. Wicklow Mortgage loan IBAN number: IE77AIBK93025361180115 Mortgage loan BIC number: AIBKIE2D Balance: €660,845.00 dr Loan expiry date: 29.9.2042 Interest rate: 2.95% Total arrears outstanding: €10,883.30 Dear [defendants]

Further to your request for an alternative repayment arrangement on your account we are writing to advise you that we are not in a position to offer you an alternative repayment arrangement as your mortgage is unsustainable. You cannot afford to meet your mortgage obligations and do not qualify for an arrangement which would allow you to retain ownership of your home.

In assessing your case we used the information you provided in your Standard Financial Statement together with any accompanying documentation. Based on your financial circumstances we do not believe that you will be able to return to full contractual repayment in the foreseeable future. However, we are committed to working with you and there are a number of options listed below that may be suitable in your circumstances and provided you meet the relevant option’s eligibility criteria, may be offered to you. We would ask you to carefully consider each one…”

87. For the sake of completeness, the options detailed in the 17 June 2019 letters comprised of trading down/downsizing; voluntary sale; and voluntary surrender. Given the existence of ongoing Circuit Court possession proceedings, it is perfectly clear that the defendants chose not to avail of any such option(s).

The mortgage contains unfair terms.

88. At no stage prior to the morning of the trial did the defendants suggest that any term in the contractual relationship with the lender was unfair. However, at the commencement of the hearing, and without prior notice, the first named defendant applied for an adjournment, on the basis of a one page document which he provided, for the first time, to the plaintiff’s legal representatives and the court, which stated inter alia:

“My mortgage contract has been recently professionally reviewed by Barry Lyons Solicitors, an expert on unfair terms and banking regulation and best practice. Following the analysis, a formal complaint is in the process of being submitted to the provider and will ultimately be filed with the Financial Services and Pensions Ombudsman (FSPO)

alleging that certain terms in the mortgage are unfair, non-transparent and potentially void” (emphasis added).

89. For reasons set out in an ex tempore ruling delivered at the time, I refused the defendants’ application for an adjournment (see Mars Capital Finance Ireland DAC v Kane & Anor. [2025] IEHC 325). During the hearing which ensued, the first named defendant made no submissions, oral or written, to the effect that any term in the loan agreement is unfair. However, to ensure that every argument canvassed by the defendants is addressed, I will assume that the defendants are consumers who argue that “certain terms” in both their mortgage and loan agreement “are unfair, non-transparent and potentially void”. The following can be said in relation to such an argument.

90. The defendants have not identified any specific term which is said to be unfair. Nor is there any evidence that the defendants did not fully understand each of the terms upon which they borrowed the money in question. Earlier in this judgment, I quoted from the defendant’s loan agreement and, leaving aside the fact that the defendants had the benefit of legal advice when they executed the loan agreement in the presence of their solicitor, the terms of same are clear and readily understood, when viewed objectively. Most importantly, the terms of relevance to this application for judgment (including, the defendant’s obligation to repay, monthly, the monies advanced, plus agreed interest; and the plaintiff’s right to demand repayment, in full, in the event of the defendants’ default) are terms which relate to the main subject matter of the contract. As such, they constitute “core terms” exempt from assessment for unfairness under Directive No. 93/13/EEC and EC (Unfair Terms in Consumer Contracts) Regulations 1995 (S.I. 27/1995). [See Start v Ryan (per Woulfe J.) at paras. 35-37, wherein the learned judge cited, with approval, the analysis by McDermott J. in Permanent TSB Plc. v. Davis [2019] IEHC 184].

91. For these reasons, I am satisfied that there is no possibility of any ‘unfair terms’ assertion constituting a credible defence.

Conclusion

92. What the defendants have ‘put up’ in opposition to this application comprises of no more than technical arguments, and ‘bald’, or mere, assertions, which are entirely undermined by the plaintiff’s evidence.

93. There is no conflict of fact disclosed in the affidavits and no dispute which requires a plenary hearing to resolve.

94. There are no issues of law which require fuller argument or greater thought in order to be determined fairly.

95. Having carefully considered the evidence and submissions, I am satisfied that it is very clear that there is no defence. Hence, the appropriate outcome is to grant liberty to enter final judgment in accordance with the plaintiff’s application.

96. Given the reference to certain payments made by the defendants following the commencement of these proceedings, the plaintiff should provide to the defendants, and furnish to the Registrar, by 12 noon on Monday 14 July, an affidavit which confirms the current liability of the defendants, for the purposes of this Court’s order, i.e. giving all due ‘credit’ for payments made by the defendants.

97. Having regard to O. 99 of the Rules of the Superior Court and s.169 of the Legal Services Regulation Act, the plaintiff has a presumptive entitlement to their costs, as the entirely successful party and I can see no factor which would justify a departure from the normal position that ‘costs’ should ‘follow the event’. Therefore, my preliminary view is that the plaintiff should be awarded its costs, to include any reserved costs).

98. On 24 March 2020 the following statement issued in respect of the delivery of judgments electronically: “The parties will be invited to communicate electronically with the Court on issues arising (if any) out of the judgment such as the precise form of order which requires to be made or questions concerning costs. If there are such issues and the parties do not agree in this regard concise written submissions should be filed electronically with the Office of the Court within 14 days of delivery subject to any other direction given in the judgment. Unless the interests of justice require an oral hearing to resolve such matters then any issues thereby arising will be dealt with remotely and any ruling which the Court is required to make will also be published on the website and will include a synopsis of the relevant submissions made, where appropriate.”

99. Having regard to the foregoing, the parties should correspond with each other, forthwith, regarding the submission to the Registrar of an agreed draft of final orders (including as to costs). In the event of an agreed draft being provided, final orders will be made in those terms. In default of agreement between the parties on the terms of a draft, both parties have liberty to file short written submissions, by 12 noon on Thursday 17 July 2025.

100. I propose listing the matter, at 10:30 am on Thursday 24 July, for the purpose of dealing with any dispute and the making of final orders.