Court allows possession order against defendants based on reliable business records proving loan chain and debt.

THE HIGH COURT

CIRCUIT APPEAL

Record number 2019/248/CA

[2025] IEHC 381

BETWEEN

EBS MORTGAGE FINANCE

AND MARS CAPITAL FINANCE DAC

PLAINTIFFS / RESPONDENTS

AND

DWAYNE BEDFORD AND NICOLA BEDFORD (No. 3)

DEFENDANTS / APPELLANTS

JUDGMENT of Ms. Justice Mary Rose Gearty delivered on the 4th day of July, 2025

1. Introduction

1.1 This is a summary application for an order for possession of a principal private residence. The Plaintiffs claim to be the owners, one succeeding the other, of loans secured by way of registered charge upon the property the subject matter of the application (“the Property”). The Defendants in the Circuit Court are the Appellants, appealing an order for possession made in the Circuit Court on 7th May, 2019, which appeal requires a full re-hearing but which can be heard by summary summons procedure, on affidavit.

1.2 Mars Capital Finance DAC was added as co-respondent to the appeal. The Plaintiffs seek a summary order for possession and the Defendants request a plenary hearing on several bases, all of which are set out in the first judgment herein, [2024] IEHC 407. The Court requested, and obtained, further evidence in respect of the chain of title of the loans. Submissions were received in respect of that evidence. In Mars Capital Finance DAC v Bedford (No. 2), [2025] IEHC 380, the Court ruled that oral evidence was necessary to resolve one issue created when the main deponent had not read his own affidavit sufficiently carefully to identify a clear error therein.

1.3 In brief, the deponent as to the chain of title of the Plaintiffs made an inaccurate statement which was sufficiently serious that the Plaintiffs were entitled to cross-examine him. This judgment refers to that issue and to the issue of hearsay evidence in business records, all other matters having been decided in favour of the Plaintiffs in the first judgment.

1.4 For clarity, the parties continue to be referred to as Plaintiffs and Defendants, with Mars Capital DAC described as the main Plaintiff. It is the main Plaintiff who seeks the order for possession, having purchased loans from EBS DAC which, under its former title EBS Limited, owned the initial Plaintiff, EBS Mortgage Finance (“EBS MF”).

1.5 The Defendants are litigants in person. They bought the Property in 2004 and challenged the Plaintiff’s right to possession on several grounds, including that they did not have sufficient information in relation to the transfer or sale of the loans to various entities. There was no positive submission to the effect that the Defendants did not receive money from the original Plaintiff, and I have already ruled that they borrowed significant sums of money and were in arrears. Similarly, I have found as a fact that default events occurred and that these were sufficient to trigger the provision in their mortgage agreement that the loans became repayable. However, the Defendants repeatedly emphasised that they had no dealings with EBS MF or the main Plaintiff but dealt only with EBS Building Society. Accordingly, they challenge the right of the Plaintiffs to possession of their home.

2. The Chain of Title and the Deficient Affidavit

2.1 I have found as a fact that EBS Building Society lent money to the Defendants and that the Defendants’ principal private residence was the security for several such loans. The proceedings issued when defaults in payment on the primary loan triggered the right to possession of the Property under the mortgage deed. The main Plaintiff must show that it obtained valid title to that loan and the consequent right to seek possession.

2.2 As set out in the substantive judgment, the Defendants obtained a mortgage in 2003 from EBS Building Society, which became EBS Limited. EBS Limited assigned the loans to EBS MF, which was created in 2008. In 2014, in accordance with the Companies Acts, EBS Limited became EBS DAC. The loans were transferred from EBS MF to EBS DAC in 2020. The Defendants’ loans were then assigned, as part of a loan book, by EBS DAC to Mars Capital Finance DAC in 2021, which company became a Plaintiff herein.

2.3 The final necessary proof was the chain of title. The difficulty outlined in the substantive judgment was that it was not clear from the affidavits and exhibits originally filed how the main Plaintiff was entitled to possession as there was little or no information about EBS MF and EBS DAC.

2.4 The main Plaintiff attempted to address this issue by filing an affidavit, sworn by Mr. Joseph Carter, who explained in more detail the role played by EBS MF. Mr. Carter is a senior manager in Mars Capital DAC. As set out in the second judgment, the affidavit was deficient.

2.5 The stated purpose of that affidavit was to clarify the assignment of the subject loan facilities and related security, which is the Property the subject of these proceedings. Mr. Carter’s affidavit set out his means of knowledge, namely, that he had examined the books and records in the possession of his employer including the records available to him from EBS Building Society, EBS Limited, EBS MF and EBS DAC, in the belief that all such records were created and maintained in the course of the business of those entities.

2.6 Mr. Carter averred that EBS Building Society and EBS MF submitted a scheme for the approval of the Central Bank pursuant to section 58 of the Asset Covered Securities Act 2001 (“the ACS Act”). In order to be approved, the particulars of the transfer had to be published in one daily newspaper, in accordance with the ACS Act. EBS Building Society received approval to transfer certain mortgage assets to EBS MF. The Transfer Scheme was approved by S.I. 499/2008 and both scheme and statutory instrument were exhibited.

2.7 The deponent swore that EBS Building Society assigned its interest in the loans and mortgages the subject matter of this case to EBS MF, on 1 st of December, 2008. He exhibited the schedule of transfer and a copy of the list of transferred accounts, redacted save as to the relevant accounts which matched those of the Defendants, into which various loans from EBS Building Society to the Defendants had been repaid over the years.

2.8 Mr. Carter’s exhibits show, therefore, that EBS Building Society (the entity with which these Defendants had all initial dealings) transferred the relevant part of its mortgage business, including these loans, to EBS MF.

2.9 Mr. Carter avers that a standard letter was sent to all such borrowers. In this regard, he also exhibited the template of such a letter, dated 2008, which he said was typical of letters sent to mortgage holders, explaining that the entity holding their loan had changed but that this made no difference to their rights and that their payments would continue to be made to the same accounts. There is no evidence confirming that these Defendants received such a letter and they aver that they received no such letter.

2.10 Mr. Carter averred that the Building Society converted to a bank known as EBS Limited and he exhibited the certificate of incorporation and banking licence of EBS Limited. He confirmed that the conversion scheme provided that, amongst other things, all mortgages entered into by the Building Society before the conversion shall be binding on and enforceable by, against or in favour of the successor, namely, EBS Limited. Pursuant to the Companies Act of 2014, EBS Limited became a Designated Activity Company on 12th September, 2016 and the certificate of incorporation on conversion to a DAC bearing that date was exhibited also.

2.11 EBS MF transferred the ownership of its residential mortgage assets to EBS DAC by schedule 19 under the transfer scheme between EBS MF and EBS DAC on 31 August, 2020, with effect from the 1st of September 2020. That schedule is exhibited also, showing the same account numbers which are linked with each of the loans in this case and into which accounts the Defendants initially made all payments before the various default events.

2.12 Mr. Carter referred to letters sent in June 2020 following the transfer of business to EBS DAC, which issued to notify customers of the transfer. His understanding was that all customers were so notified and he exhibited a sample letter. The Defendants aver that they did not receive such a letter.

2.13 The original lender had the right to sell or assign its loans according to the terms of the mortgage agreement and, given the affidavit sworn by Mr. Carter and its contents, the fact that there was no failure to pay at any time as a result of any change of title in respect of the loan, despite public notice of the change of ownership in 2008 and the change in entities thereafter, I am satisfied that the Defendants had sufficient notice that the assignees – EBS MF, EBS Limited and EBS DAC – were legitimately entitled to repayments in respect of loans originally made by EBS Building Society. I am also satisfied that these entities were entitled to hold the Property as security for those loans, and that each entity in turn was entitled to the right to possession of that property in the event of a default event, such as occurred here.

2.14 I am satisfied that EBS DAC, as the owner of the relevant loans and being entitled to hold the security for the loans, was entitled to transfer ownership to the Plaintiff, Mars Capital, and that the loans (or any one of them) in respect of which there has been defaults are those underlying the charge registered in the name of the Plaintiffs, entitling the main Plaintiff to an order for possession.

3. Receipt of Letters: records vs. recollection

3.1 As regards the Defendants’ claim that they received no notice of the transfer of the various loans, it is more likely that they did receive such letters, but do not recall them. The exhibited sample letters support the averment that such letters were sent, and it is more likely that they went to all relevant customers than only to one, or to a few. There may be circumstances in which an exhibit such as this is not sufficient if, for example, the purported recipient can show a file of correspondence and can confirm that such a letter was never filed, thus never received, or where a query is raised as soon as the name of the entity corresponding with the debtor changes. Here, there were several statements exhibited which showed that the name of the lender was “EBS Mortgage Finance”. No query was raised, either because the letters in issue were received or because the Defendants knew that the entity was a subsidiary of EBS Building Society, which name remained on their annual statements until 2011 In 2012, the name EBS Building Society changed to EBS Limited. Those statements referred to the amounts owing by reference to the same bank account numbers. Annual statements from 2012, addressed to the Defendants, carry the information at the bottom of the page that EBS MF is a wholly owned subsidiary of EBS Limited and, whether EBS Limited or EBS Building Society, the template confirms that all entities are regulated by the Financial Regulator.

3.2 Where a bald averment is met with an exhibit in the form of a template and a deponent confirms that letters were sent to all customers, insofar as the business records support this, such records are persuasive. More significantly, the information in question is confirmed by the annual statements directly addressed to the Defendants herein and contained in exhibit F of Paula Duffy. The name EBS Building Society is still in the letter head of each annual statement until 2012, when the name on the statements changed to EBS Limited.

3.3 In addition, the letters to customers were sent, as supported by evidence of the standard letter, at a time when the Defendants were still paying EBS in one guise or another: until 2011 each annual statement was from EBS Building Society and, on an otherwise identical template, the 2012 annual statement was from EBS Limited. The Defendants continued to make payments into the same numbered loan accounts until 2010, in one case, 2011 in a second case, and 2014 in respect of two others. From 2008, on each annual statement the lender was identified as EBS MF, even though EBS Building Society was still on the top left corner of each statement until 2012, when that name changed to EBS Limited, at the same address in each case despite the change of name.

3.4 In the second case, the standard letter was dated at a time after the Defendants had stopped making repayments. In those circumstances, it is not likely that the entity to which the loan was now payable was as significant a matter to the Defendants as was the fact that they were no longer engaging with the lender. In any event, and for the reasons set out above, a bare assertion in respect of recollection is not strong evidence even against an exhibit which does not name the Defendants. The more likely event is that letters such as these were sent and that the Defendants received them. There is no evidence of any attempt to pay being frustrated by a dearth of knowledge as to the right recipient.

4. Errors and Weight of Evidence

4.1 The affidavit of Mr. Carter was undermined by the error contained in it and identified in the second judgment in this case. As is clear from that judgment, the deponent referred to previous affidavits as his own when it was clear that he had not sworn any previous affidavits in this case. This, it was submitted, was an error in the nature of a typo but, as set out in that judgment, this Court does not agree. Where a deponent has not read a draft sufficiently carefully so as to identify such an error, it must reflect on that deponent’s averments that he has read the books and records sufficiently carefully so as to confirm that the Plaintiff is the owner of the loans, that the chain of title can be deduced from the records, and that the Defendants were notified of changes in title.

4.2 Mr. Carter apologised for the error. He explained that the original deponent was to be Mr. Hopkins, who had sworn previous affidavits in this case and confirmed that the paragraph referring to these affidavits was not altered when Mr. Hopkins was unavailable and that he, Mr. Carter, had not noticed this when he swore the affidavit instead. He confirmed that he had read the material which comprised the exhibits having accessed them all electronically.

4.3 Mr. Carter’s reference to another deponent’s affidavits was made at the end of his first affidavit and was in a paragraph dealing with the assignment of loans by EBS DAC to Mars Capital, a matter in respect of which the Court was already satisfied. Nonetheless, the averment showed insufficient care by the deponent in reviewing his own affidavit before signing it. As noted in Bedford (No. 2), this error affects the reliability of the deponent in all other respects.

4.4 Mr. Carter has now been cross-examined in respect of his averments and has given evidence as to how the significant error occurred. Further, as set out in a subsequent affidavit, having been alerted to the problem, he reviewed the affidavit and the exhibits. While this is the least one would expect, it is reassuring to read that this was his response to the situation. He confirmed that he had read the material which comprised the exhibits before having sworn his first affidavit. In evidence, he appeared to characterise the error as a relatively minor one.

4.5 Under cross-examination, some of the questions addressed issues that the Defendants wanted to re-litigate, including the fact that they had not taken out a loan with this Plaintiff, Mars Capital, but only with EBS Building Society. In respect of the reference to previous affidavits, the witness again stated that this was an error and that he had in fact read the exhibits and relevant records. In many of the questions, the premise was incorrect in that the witness was asked how such an account could have been created by Mars Capital. In fact, the loan and security had been acquired by them; no account was created by that entity.

4.6 Overall, the witness’s evidence was sufficient to confirm that he had read and examined the documents in question and that he had access to sufficient records to swear to the matters set out in his affidavit. In particular, I note his immediate and confident references to the electronic files and his descriptions of how, during his ten years employed by the main Plaintiff, he had done similar work before and how access was managed, although not directly by himself. I am satisfied that he reviewed the records in question and that he was in a position to verify the exhibits set out in his first affidavit. In respect of any reference to this error as being in the nature of a minor error, this is not correct. The error was such as to raise questions about the care with which this case had been prepared. If an institution relies on the convenience of a summary, paper-based, procedure, it must be diligent about how it prepares the case and presents it to a court. A document must be considered carefully before a deponent swears or affirms that it is true and that a court can rely upon it with confidence that it is accurate. When an error such as this occurs, it may not always be necessary to cross-examine the deponent, but cross-examination is an effective way to test the reliability of the evidence.

5. The Hearsay Rule: Caselaw and the 2020 Act

5.1 Many of the documents in this case were exhibited in affidavits sworn by Mr. Ronan Hopkins. The final affidavit, sworn by Mr. Carter, exhibited important documents confirming the chain of title as set out above. In my first judgment, I considered the Defendants’ arguments in respect of the Civil and Criminal Law (Miscellaneous Provisions) Act 2020 (“the 2020 Act”) and concluded that this was an issue that could be revisited when the witness had addressed his knowledge of the documents he purported to identify as business records.

5.2 In that judgment, I took the view that the 2020 Act applied to such records as a procedural change to the admissibility of evidence rather than a substantive change in the law. I also described the effect of the judgment of Murray J. in Feniton Property Finance DAC v McCool [2022] IECA 217, which effectively leads to the same conclusion in that these records, even if not admissible under the 2020 Act, have been proven to a satisfactory level as outlined above: the deponent is a senior, experienced employee of the main Plaintiff, he had access to the records of previous relevant entities and, crucially, the exhibits appear authentic and there is no countervailing evidence to suggest that they have been fabricated or are unreliable in some way.

5.3 The Defendants submitted that the intervening judgment in Cave Projects v Kelly [2025] IESC 3, means that the 2020 Act cannot apply to the case as this would amount to retrospective legislation in respect of their rights and those of the Plaintiff. Delivering the decision of the Supreme Court, Hogan J. sets out a comprehensive and trenchant defence of the principle that legislation should not have retrospective effect. Put simply: if a provision changes rights in midlitigation, it is unfair to the litigants. If the 2020 Act does not apply, they argue, none of the evidence of Mr. Carter is admissible as it is all hearsay evidence.

5.4 This does not follow, however. As set out in my last judgment on this issue, Murray J. has addressed precisely this issue in Feniton Property Finance DAC v McCool and concluded that evidence such as that tendered in this case may be admissible once it has been assessed as he describes in his judgment. In short, such evidence is admissible to provide prima facie evidence of the information contained in the documents but a court may only rely on the evidence if satisfied that it is reliable. Even without the assistance of the 2020 Act provisions, which allow a court to rely on business records, the evidence may be admissible even if it is hearsay, depending on its quality and provenance.

5.5 The evidence in question must therefore be examined in light of the various cases outlined in Feniton. Mr. Carter was cross-examined as to how he knew that the records were supplied in the ordinary course of business of the predecessors in title of this Plaintiff, i.e. EBS MF and EBS Limited. He replied that he saw nothing to suggest that they had not been so supplied and received.

5.6 Mr. Carter obtained books and records as electronic files in a central secure drive. The four mortgage loan accounts were isolated by a member of his team and he examined the results. This was the normal way of identifying such accounts, he said. Copies of the relevant records were stored on a central drive, and this was in line with standard record-keeping procedures.

5.7 When asked about the legitimacy of the documents, the witness said that there was nothing to suggest that they were not legitimate. The context in which he gave this sworn evidence is important: the witness has been a senior manager of the relevant company for ten years. He is familiar with its business and gave evidence that it purchased loans and securities from EBS DAC. These were the records he examined and which were in his employer’s possession as a result of that purchase. There was no suggestion that his employer was not the owner of the documents so stored or that the documents were not reliable. What was suggested was that the witness had not created any of the documents.

5.8 In addressing the question of how he knew that the records were prepared in the ordinary course of business of the main Plaintiff’s predecessors in title, Mr. Carter replied that he had reviewed their books. This is the context in which his evidence must be assessed. Further, he reviewed the books and exhibits after being alerted to the remaining issue in the case (the chain of title) and again after he was advised that the Court had not accepted his first affidavit due to the error contained in it. He further confirmed that the records were supplied by those predecessors in title which led to his belief that they had been created in the course of the business of those entities. When pressed, he again replied that there was nothing to suggest that the records had not been created in the ordinary course of business. In the circumstances, this was a perfectly reasonable response.

5.9 In the words of Murray J., the provenance of the records and the position of the witness, including his access to the records in question, together with the contents of those records, satisfy me that they are reliable and admissible. Such records outline a course of conduct and contained (as was clear from the exhibits filed for the substantive case) much material which was directly addressed to the Defendants and clearly related to their loans and the Property.

5.10 In Feniton Property v McCool at paragraphs 52-55, Murray J. confirmed that even though evidence may be derived from documents that were not created by the witness and even though those records were generated in the course of transactions in which he had no personal involvement, his analysis of those documents placed him in a position where – as an employee of the company whose records they were – he was entitled to recount his analysis of the documents as prima facie proof of the truth of their contents. In accordance with this summary of the law, the evidence based upon Mr. Carter’s personal knowledge of the records in question is admissible as prima facie evidence of the fact and quantum of each loan and the manner in which each successive entity became entitled to the loans and the underlying security. Even if the 2020 Act does not apply, the evidence is nonetheless admissible on this basis.

6. Conclusions and Costs

6.1 I must decide if there is a reasonable probability of these Defendants having a real or bona fide defence, in law, on the facts, or both. This does not mean that the putative defence must, or even may, succeed. It must be very clear that there is no defence before I can give judgment on a summary basis, even bearing in mind the recent oral hearing: much of the evidence was on affidavit.

6.2 There has been evidence of loans, default events and the entitlement of the Plaintiffs to possession of the Property. Mr. Carter obtained reliable knowledge of indebtedness from a review of the records of the lending bank, insofar as the Defendants are concerned, in that his employer purchased the loans and obtained records relating to the loans. The Plaintiffs have exhibited documents that disclose an ongoing course of dealing (including the sending of periodic statements, receipt of which are not and were never disputed by the debtor) from all of which I conclude that the monies recorded as being due, are in fact due and that the Defendants were aware of the identity of each lender.

6.3 The Defendants have not led any evidence to contest these essential facts, albeit that they put the Plaintiffs on full proof. Nor have the Defendants successfully undermined the reliability of the Plaintiffs’ evidence. The Plaintiffs are, therefore, entitled to possession of the Property.

6.4 If the parties cannot agree on the issue of costs, they may make short submissions, limited to 1,000 words and confined to the issue of costs, within

14 days of delivery of this judgment.