High Court allows summary possession appeal, rejecting claims of equitable mortgage and inadmissible hearsay evidence.

THE HIGH COURT

[2025] IEHC 393

Record No. 2024/222 CA

BETWEEN

PEPPER FINANCE CORPORATION (IRELAND) DESIGNATED ACTIVITY COMPANY T/A PAPPER ASSEST SERVICING

Plaintiff/Respondent

AND

JONATHAN CUFFE

Defendant/Appellant

Ruling of Ms. Justice Siobhán Phelan, delivered on the 10th day of July, 2025.

INTRODUCTION

1. This matter comes before me for de novo hearing as an appeal against an Order for Possession granted by the Circuit Court on the 23rd of July, 2024, in proceedings commenced by Civil Bill for Possession which issued on the 26th of May, 2017. In these proceedings an Order was sought pursuant to s. 62(7) of the Registration of Title Act 1964 (hereinafter “the 1964 Act”) and s. 3(2) of the Land and Conveyancing Law Reform Act, 2013 (hereinafter “the 2013 Act”) for delivery of possession of a property comprised in Folio WD28332F (hereinafter “the Property”). A stay of execution of three months was placed on the said Order in the Circuit Court.

2. The Property is the Defendant/Appellant’s principal private residence.

3. It is the Defendant/Appellant’s contention that summary judgment granting possession should not be ordered on two principal grounds, namely:

(i) the claim that the Plaintiff/Respondent does not hold a legal mortgage capable of summary possession but rather only holds an equitable mortgage in consequence of which the proceedings should either be adjourned to enable an application for rectification of the register or transferred for plenary hearing;

(ii) the further claim that the Order for Possession was made by the Circuit Court was not evidentially grounded in that reliance was placed on inadmissible evidence and lacked adequate particularisation in circumstances where the statements of account relied upon to demonstrate default on mortgage payments were claimed not to have been generated in the ordinary course of business and to constitute hearsay.

4. By reason of the foregoing, the Defendant/Appellant contends that the Plaintiff/Respondent’s proofs are not in order on this summary application and/or an arguable basis for defending the application has been demonstrated.

5. There is also an application to adduce fresh evidence before me listed together with the substantive appeal. Both applications came on for hearing before me in the High Court sitting in Waterford on the 25th of June, 2025.

BACKGROUND

6. The factual background is outlined on the Civil Bill and on affidavit and will not be repeated here in full detail.

7. Suffice to say, in summary, that the Defendant/Appellant entered into a loan agreement with the Irish Nationwide Building Society (hereinafter “the Lender”) on or about the 22nd of October, 2004, under account number 1-400-171-351-1 for a term of 35 years.

Under the said loan agreement, the Lender agreed to advance the sum of €184,000.00 to the Defendant/Appellant for the purpose of acquiring the Property.

8. By Deed of Mortgage, the Defendant/Appellant, as registered owner or as the person entitled to be registered as owner, charged the Property more particularly described in a Schedule to the Deed with the payment of the secured monies and assented to the registration of the mortgage as a burden on the Folio.

9. The Defendant/Appellant was registered as full owner (see Folio WD28332F) on the 11th of February, 2005. It is common case, undeniable on the face of the record, that the mortgage was also registered as a charge on the Property on the 11th of February, 2005, at the same time as the Defendant/Appellant was registered as full owner of the Property.

10. The loan was called. By letter dated the 20th of July, 2016, when the Plaintiff/Respondent’s predecessor, at that time Shoreline Residential Designated Activity Company, demanded possession within seven days claiming a default in the repayment of arrears in circumstances where the Deed of Mortgage provided for the immediate repayment of all sums where there was a failure to make mortgage payments. Subsequently, Shoreline Residential Designated Activity Company commenced the within proceedings on the 26th of May, 2017.

11. The Plaintiff/Respondent has had three predecessors with ownership of the debt, namely, the Lender, the Irish Bank Resolution Corporation Limited and Shoreline Residential Designated Activity Company.

12. The transfer of the loan concerned through each of the Plaintiff/Respondent’s three predecessors together with consequential amendment to the title to these proceedings by the substitution of a new Plaintiff in advance of the making of the Possession Order

in the Circuit Court is documented in the papers and was not the subject of controversy on this appeal.

13. The charge has been registered as in the ownership of the lender, Shoreline Residential and the Plaintiff/Respondent each in turn. From entries on the folio ownership was registered to the Plaintiff/Respondent on the 28th of July, 2019.

PROCEEDINGS

14. The Civil Bill herein pleads the claim in clear terms. The special endorsement of claim, inter alia, describes: (i) the Plaintiff; (ii) the Defendant; (iii) a loan agreement by which monies were advanced to the Defendant; (iv) a mortgage and charge dated the 17th of December, 2004 and registered on the 11th of February, 2005; (v) breach of the terms of the loan and charge; (vi) a failure to discharge the sum advanced, despite demand.

15. To establish the jurisdiction of the Circuit Court it was further pleaded that the Property is situate within the Court’s jurisdiction, is a principal private residence and has a market value not exceeding €3 million.

16. The application for possession was grounded on an affidavit of Jeffrey Johnston dated the 16th of May, 2017 and the exhibits thereto. The exhibits included:

(i) a transfer order made in the High Court on the 1st of July, 2011, pursuant to s.34 of the Credit Institutions (Stabilisation) Act 2010, the assets and liabilities (other than certain exclusions) of the Lender to Anglo Irish Bank Corporation Limited, a Special Resolution dated the 3rd of October, 2011, wherein Anglo Irish Bank Corporation Limited changed its name to Irish Bank Resolution Corporation Limited, a deed of transfer dated the 6th of June, 2014, entered into by Irish Bank Resolution Corporation Limited and transferring to Shoreline Residential Limited;

(ii) a certificate of incorporation on conversion to a designated activity company, dated the 22nd of August, 2016, wherein Shoreline Residential Limited, a private company limited by shares, converted to a designated activity company;

(iii) a letter from the Shoreline Residential Limited to the Defendant/Appellant dated the 10th of June, 2014, notifying it of the appointment of Pepper Finance Corporation (Ireland) Designated Activity Company to undertake certain credit servicing activities on its behalf;

(iv) a certified copy of Land Registry Folio WD28332F, containing a description of the lands and the address of the Property;

(v) a true copy of a statutory declaration of the Single Person that the Property is not a Family Home within the meaning of s.2 of the Family Home Protection Act, 1976 or a shared home within the meaning of s.27 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010;

(vi) a true copy of an Indenture of Mortgage, noting the Defendant/Appellant as registered owner, charged the premises with the payment of the secured monies and assented to the registration of the Mortgage as a burden on the Folio as is set out in paragraph 3 of the Mortgage;

(vii) a letter dated the 9th of June, 2014, notifying the Defendant/Appellant that legal ownership of the Mortgage had been transferred to the Plaintiff and all amounts owing by the Defendants with regard to the Mortgage were now owed to the Plaintiff;

(viii) a copy of the Loan Acceptance by the Defendant/Appellant dated on or around the 28th of June, 2004, and the Loan Agreement advanced to and drawn down by the Defendant/Appellant on or about the 22nd of October, 2004;

(ix) Copies of bank statements in respect of the Defendant/Appellant;

(x) a letter dated the 30th of June, 2016, wherein Shoreline Residential Limited wrote to the Defendant/Appellant and demanded payment of all sums outstanding, including arrears within 7 days of that date thereof;

(xi) a letter dated the 20th of July, 2016, wherein Ronan Daly Jermyn Solicitors, upon instruction from Shoreline Residential Limited wrote to the Defendant/Appellant and demanded that the Defendant deliver up possession of the property within 7 days of the date thereof in default of which proceedings seeking an order for possession of the property would issue against the Defendant/Appellant without further notice to the Defendant/Appellant in writing or otherwise;

(xii) a letter dated the 26th of November, 2014, from Pepper Finance Corporation (Ireland) Designated Activity Company to the Defendant/Appellant, advising the Defendant/Appellant that an Alternative Repayment Arrangement (“ARA”) could not be offered as the mortgage was unsustainable.

17. It is further confirmed in this grounding affidavit that a letter was sent from the Shoreline Residential Limited’s Solicitors dated the 16th of August, 2016, to the Defendant/Appellant warning that proceedings were being instituted.

18. A supplemental affidavit of Jeffrey Johnston was sworn on the 22nd of June, 2017 on behalf of Shoreline Residential Designated Activity Company in which he refers to the exhibit at (ix) above which he stated contained a figure in respect of “interest on arrears charged during the period of the statement” which due to an error when the statement was printed, quoted an incorrect figure. The supplemental affidavit exhibits a copy of an up to date bank statement which contains the correct figure in in respect of “interest on arrears charged during the period of the statement”,

19. In a further Affidavit dated the 27th of August, 2019, Caroline Loftus, Senior Operations Manager in Pepper Finance Corporation (Ireland) Designated Activity Company exhibited the following:

(i) the Transfer Order made on the 1st of July, 2011 between Irish Nationwide Building Society (hereinafter referred to as the “Society”)

and Anglo Irish Bank Corporation Limited, a Special Resolution dated the 3rd of October, 2011 and the further Deed of Transfer dated the 6th of June, 2014 between Irish Bank Resolution Corporation Limited (in Special Liquidation) (hereinafter referred to as “IBRC (SL)” and Shoreline Residential Limited;

(ii) a copy of the Certificate of Incorporation on Conversion to a Designated Activity Company dated the 22nd of August, 2016;

(iii) a copy of the Legal Title Transfer Deed, wherein by way of Legal Title Transfer Deed between Shoreline and the Plaintiff/Respondent whereby Shoreline agreed to transfer and the Plaintiff/Respondent agreed to accept the legal title to the “Mortgage Assets” in the “Portfolio”, with such transfer to take place on the 18th of April, 2019;

(iv) a copy of the Irish Law Deed of Transfer (Registered Property) which occurred on the aforementioned transfer date;

(v) a copy of a letter which was sent to all borrowers affected by the transfer, notifying them of Shoreline’s intention to transfer its legal interest in their loan facilities and mortgages prior to the transfer date;

(vi) copies of letters dated the 20th of May, 2019, wherein Shoreline Residential Designated Activity Company notified the Defendant/Appellant that it had transferred its legal interest, the subject matter of these proceedings to Pepper;

(vii) copies of further letters dated the 14th of July, 2019, wherein the Plaintiff/Respondent notified the Defendant/Appellant that Shoreline had transferred its legal interest, the subject matter of the proceedings, to the Plaintiff/Respondent.

20. Further affidavits were exhibited including an Affidavit of Darryl Broderick dated the 20th of October 2020, Affidavits of Seamus Dowling dated the 7th of October, 2021 and of the 14th of March, 2023 and further Affidavits of Caroline Loftus dated 15th of February 2022, 12th of September 2023 and 21st of November, 2023.

21. By Order dated the 19th of December 2019, Shoreline Residential Designated Activity Company was substituted as Plaintiff by Pepper Finance Corporation (Ireland) Limited.

22. The Defendant/Appellant has sworn a number of affidavits in resisting the application before the Circuit Court, specifically affidavits sworn on the 17th of January, 2020, 31st of August, 2021, 20th of April, 2023, 22nd of November, 2023 and 20th of December, 2023. Written submissions dated the 28th of October, 2020, were also before the Circuit Court.

23. By Order dated the 23rd of July, 2024, an Order for Possession was granted by the Circuit Court, subject to a three month stay of execution.

24. By Notice of Appeal dated 31st of July, 2024, the Defendant/Appellant appealed against the said Order for Possession.

25. By Notice of Motion dated the 12th of November, 2024, grounded on an affidavit of Sinead Mulhall, Solicitor, the Defendant/Appellant sought to adduce new evidence for the purpose of the Circuit Court appeal then pending before the High Court.

APPLICATION TO ADDUCE FRESH EVIDENCE

26. The application to adduce fresh evidence is grounded on the affidavit of the Defendant/Appellant’s solicitor. She outlines on affidavit the matters which the Defendant/Appellant would seek to say in evidence were leave granted by me.

27. Having carefully considered the affidavit of Ms. Mulhall it seems to me that the application to adduce fresh evidence is largely misconceived as it is clear from the affidavit grounding the application that the Defendant/Appellant seeks to do no more than flag legal arguments which it is sought to pursue based on the evidence before the Court. As far as I can deduce, no fresh evidence identifiable as evidence, as opposed to argument, is sought to be adduced.

28. As I indicated during the hearing, the Defendant/Appellant is at large to raise and pursue such legal arguments as properly arise on the papers on a de novo appeal without any special leave from the Court. I proceeded to hear this appeal on the basis that the matters advanced on behalf of the Defendant/Appellant as new evidence were matters which could be ventilated as part of the appeal before me in legal argument.

29. No impediment was placed on the Defendant/Appellant in advancing such arguments as he wished referrable to the material which he sought to adduce for the purpose of the appeal. In this regard, I confirm that I have had regard to the terms of the so-called new evidence sought to be adduced. I have not excluded it from consideration on the basis that it constitutes new evidence requiring leave of the Court for which leave was refused. In other words, the intended “evidence” has been treated as part of the material in evidence before me and considered as part of the case made resisting summary judgment.

PROOFS ON APPLICATION FOR SUMMARY JUDGMENT

30. Section 62(7) of the 1964 Act explicitly permits a registered owner of a charge to seek possession in a “summary manner”. In the Supreme Court’s decision in Bank of Ireland Mortgage Bank v. Cody [2021] IESC 26 (“Cody”), Baker J examined the s. 62(7)

jurisdiction and stated the following from para. 15 onwards:

“15. The jurisdiction conferred by that section applies to proceedings for possession by the registered owner of a charge once monies secured by the charge have become due. The subsection does not identify what is meant by the making of an application “in a summary manner”, but the Court is given a discretion, if it so thinks proper, to order possession of the land to be delivered up, the consequence whereof is that the owner of the charge thereupon becomes a mortgagee in possession.

16. In Bank of Ireland v. Smyth [1993] 2 IR 102, [1993] ILRM 790, Geoghegan J rejected the notion that s. 62(7) confers a wide discretion which enables a court to refuse an application for possession on grounds of sympathy. He thought the words “may, if it so thinks proper” simply mean that the court should apply equitable principles in considering the application for possession, but not “sympathetic factors” and thus ensure that the application is made bona fide with a view to realising the security…”

31. Circuit Court applications for summary possession of property are governed by Order 5B of the Circuit Court Rules [S.I. No. 264 of 2009] as amended and I am satisfied that this application was procedurally correct and properly before the Circuit Court at first instance and subject to a de novo hearing on appeal to this court.

32. In Start Mortgages DAC v. Ryan [2021] IEHC 719 Woulfe J. addressed the burden of proof resting on a Plaintiff in an application of the present type as follows:-

“21. At para. 49 of her judgment in Cody, Baker J stated that the owner of a charge who seeks to obtain possession pursuant to s.62(7) of the 1964 Act has to prove two facts: (a) that the Plaintiff is the owner of the charge; and (b) that the right to seek possession has arisen and is exercisable on the facts. The summary process is facilitated by the conclusiveness of the Register as proof that the Plaintiff is the registered owner of the charge and this is a matter of the production of the Folio, and, as the Register is by reason of s.31 of the 1964 Act conclusive of ownership, sufficient evidence is shown by that means: see the discussion in the Court of Appeal judgment in Tanager DAC v. Kane [2018] IECA 352. That judgment held that the correctness of the Register cannot be challenged by way of defence in summary possession proceedings, and that a Court hearing an application for possession pursuant to s.62(7) of the 1964 Act is entitled to grant an order at the suit of the registered owner of the charge, or his or her personal representative, provided it is satisfied that the Plaintiff is the registered owner of the charge and the right to possession has arisen and become exercisable.

22. Order 5B requires a Plaintiff to establish a prima facie case on the affidavit evidence for an order for possession, and it is then necessary for the Defendant to proffer evidence or argument sufficient to establish a credible defence…”

33. Accordingly, the questions for a court on an application for summary judgment seeking possession are:

(i) Are the relevant monies secured on the property?

(ii) Is the Plaintiff the owner the relevant charge?

(iii) Has there been default resulting in the monies becoming due? and

(iv) Has the Defendant put forward a credible defence?

34. As already summarised above, the application for a possession order is grounded on extensive affidavit evidence addressing the transfer of the assets and liabilities of the Lender to the Plaintiff/Respondent. Sensibly no particular issue has been taken by counsel on behalf of the Defendant/Appellant with the evidence in relation to transfer but I must nonetheless be satisfied in this regard.

35. I am satisfied from the documents exhibited to the various affidavits that the Defendant/Appellant was offered a loan of €184,000.00 in June, 2004. The Defendant/Appellant accepted the loan offer on or about the 28th of June, 2004 and drew down the loan in October, 2004.

36. The Deed of Mortgage signed by the Defendant/Appellant is exhibited (although there are interlineations which make it difficult to decipher whether the date is 2004 or 2005), In its terms it is executed by the Defendant/Appellant as registered owner, or as the person entitled to be registered as owner and charged the Property (identified in a Schedule) in favour of the Lender. The Defendant/Appellant agrees to repayment of the secured monies and assented to the registration of the mortgage as a burden on the Folio.

37. Clause 7(c) of the mortgage provided that if the mortgagor is in arrears for in excess of one month, the mortgagee shall be entitled to call in the full amount of the loan. Clause

16 of the mortgage provided that the mortgagee could at any time transfer or assign all or any part of the mortgage, including the security created on the mortgaged property, without notice to the borrower, or any other person, and on such happening, “all powers, rights and discretion of the Society shall be exercisable by the transferee or assignee to the extent that they are so assigned and/or transferred”. Clause 16.2 of the mortgage provided that the borrower irrevocably consented to all or any future transfers of all or any part of the benefit of the mortgage, including the security thereby created on the mortgaged property.

38. The mortgage was transferred from the original Lender to Anglo Irish Bank Corporation Limited by virtue of a transfer order made in the High Court on the 1 st of July, 2011, pursuant to s. 34 of the Credit Institutions (Stabilisation) Act, 2010 and by Special

Resolution dated 3rd of October, 2010, Anglo Irish Bank Corporation Limited changed its name to Irish Bank Resolution Corporation Limited.

39. Irish Bank Resolution Corporation Limited entered into special liquidation on or about the 7th of February, 2013, by virtue of the Irish Bank Resolution Corporation Act 2013 (Special Resolution) Order 2013. All rights, title, interest, benefits, liabilities, duties and obligations in the mortgage were transferred from Irish Bank Resolution Corporation (in special liquidation) to Shoreline Residential Limited by virtue of a Deed of Transfer dated the 6th of June, 2014, entered into by Irish Bank Resolution Corporation Limited (in special liquidation). In this way Shoreline Residential Limited acquired rights in the Defendant/Appellant’s debt,

40. It is further established on affidavit evidence in support of the application for an order for possession that the Defendant/Appellant failed to discharge his mortgage payments and subsequently arrears as they fell due. Statements of account exhibited to the affidavits sworn by Mr. Johnston confirm that the loan account fell into arrears in or about April, 2012. I am satisfied that by letter dated the 30th of June, 2016, the then owner of the charge, Shoreline Residential Limited, duly called in the entire of the loan from the Appellant/Defendant in circumstances of clearly established default on the loan.

41. On the 22nd of August, 2016, Shoreline Residential Limited converted to a designated activity company by virtue of an ordinary resolution passed on that date and it proceeded to issue the within proceedings.

42. On the 18th of April, 2019, by way of legal title transfer deeds between Shoreline Residential Designated Activity Company and Pepper Finance Corporation Ireland Designated Activity Company, the former agreed to transfer, and the latter agreed to accept the legal title to the mortgage assets in the portfolio, as both defined in the said deed, with such transfer to take place on the 18th of April, 2019.

43. On the transfer date of the 18th of April, 2019, both Shoreline Residential Designated Activity Company and Pepper Finance Corporation (Ireland) Designated Activity Company executed the Irish Law Deed of Transfer whereby Shoreline Residential Designated Activity Company, the transferor, as registered owner of or the person entitled to be the registered owner, transfmn erred to Pepper Finance Corporation (Ireland) Designated Activity Company, as transferee, the charge the subject matter of these proceedings as set out in the schedule contained within the said Irish Law Deed of Transfer.

44. The Legal Title Transfer Deed and Irish Law Deed of Transfer establish the mechanism by which the relevant facilities and mortgages were transferred from Shoreline Residential Designated Activity Company to Pepper Finance Corporation (Ireland)

Designated Activity Company. I am satisfied that these documents establish that the subject loan debt was transferred from the Lender through the Irish Bank Resolution Corporation Limited (in Special Liquidation) to Shoreline Residential Limited before it converted to Shoreline Residential Designated Activity Company and further transferred the loan debt to the Plaintiff/Respondent. The account number is clearly cited in each of the transfer documents and the Plaintiff/Respondent has established ownership of the loan debt.

45. I am further satisfied that on or about the 9th of December, 2019, the Plaintiff/Respondent applied to the Circuit Court in Waterford for an order substituting the Plaintiff/Respondent for Shoreline Residential Designated Activity Company in the within proceedings, which order was duly made and was not appealed.

46. As appears within the Folio, the Plaintiff/Respondent is specified as being the owner of the registered charge which gave rise to these proceedings. As also appears from the Folio, Shoreline Residential Limited and the original Lender were the previous owners of this charge, same being transferred ultimately to the Plaintiff/Respondent. Insofar as proof of ownership of the charge is concerned, this is established by the registration of the charge in the Plaintiff/Respondent's name on the Folio. The charge was registered in the Plaintiff/Respondent's name on the 25th of July, 2019. This registration is before the court by way of exhibit.

47. I accept the non-controverted averment on affidavit that while some minimal payments were made (for example, a payment was made to the account in August, 2021, in the sum of €112.50 but this was at a time when the total level of indebtedness was in excess of €212,000.00) the Defendant/Appellant remained in arrears. As confirmed by the terms of the Affidavit of Seamus Dowling sworn on the 7th of October, 2021, such small payments as were made (notably in August, 2021) these were not effective to redress mounting arrears in any significant way. It appears that no further payments were made between August 2021 and June, 2024 and evidence to this effect has not been controverted.

48. The position as regards accrual of arrears has only been exacerbated by the passage of time, as confirmed by periodic updates on affidavits filed on behalf of the Plaintiff/Respondent. As of the 5th of June, 2024, it is averred by Caroline Loftus, Senior Operations Manager with the Plaintiff/Respondent, that the Defendant/Appellant was by that date in arrears in the sum of €113,845.83 and the total outstanding debt at that time was €239,938.57. The Defendant/Appellant did not challenge the averments as to arrears and non-payment over many years, despite swearing several affidavits in these proceedings. In the circumstances, I am satisfied that the Defendant/Appellant remains indebted on foot of the loan agreement at the present time. He does not challenge that he executed the indenture of mortgage in favour of the Lender. Clause 7(c) of the mortgage clearly provides that if the mortgagor is in arrears for in excess of one month, the mortgagee shall be entitled to call in the full amount of the loan.

49. I am satisfied that the registration of the charge on the folio is conclusive of the Plaintiff/Respondent being the owner of same in accordance with established jurisprudence (see Bank of Ireland v. Cody [2021] 2 I.R. 381). In this regard, despite submissions before me at hearing in relation to the possibility of an application to rectify the Register by reference to a line of defence identified and addressed further below should this application be adjourned, it is telling that no such application has yet been made even though these proceedings have been in being for some eight years.

50. Having considered the evidence, I am satisfied that it has been established that Pepper Finance Corporation (Ireland) DAC have been properly substituted as Plaintiff/Respondent on this application and is the registered owner of the charge with entitlement to seek possession of the property on foot of the Defendant/Appellant’s default, where default is established on the evidence. Incidentally, this same chain of ownership has received judicial scrutiny in Shoreline Residential DAC and Pepper

Finance Corporation (Ireland) DAC v. Jacob [2021] IEHC 654 in respect of a different loan and was approved.

51. Although the Defendant/Appellant contends that statements of account exhibited constitute inadmissible hearsay evidence, in none of the several affidavits sworn by him in these proceedings has he ever sought to maintain that he was not in default on his mortgage payments or that the assertion on affidavit that he has made no payments since 2012 is incorrect. While I address further the question of inadmissible evidence insofar as it is identified as the basis for maintaining that the Defendant/Appellant has an arguable defence to the within proceedings hereinafter, it seems to me that irrespective of the admissibility of statements of account exhibited in these proceedings (addressed below), the Plaintiff/Respondent has provided evidence on affidavit asserting a default in payment, supported by documentation evidencing a demand for payment on foot of same. This assertion has not been disputed on behalf of the Defendant/Appellant. Given that the onus is on the Plaintiff/Respondent to establish a default in payment rather than to establish the precise sum due arising from a default, I am satisfied that the Plaintiff/Respondent has demonstrated a prima facie entitlement to summary judgment on this application on the proofs presented, subject only to the strength of any defence point raised and considered below.

ARGUABLE DEFENCE

No Legal Mortgage Created

52. The Appellant/Defendant contends in submissions that the terms of mortgage entered is ineffective to create a legal charge because it is not capable of charging a future acquired beneficial or legal interest in property. This argument is based on the decision in Re Valley Ice Cream Ltd. [1998] IEHC 119 (McCracken J.), a judgment concerning an agreement to create a legal and binding obligation on a Company to execute a mortgage as soon as any lease of equipment expires or terminates which it was found:

“does not, and cannot, of itself create a legal mortgage over the equipment, as the equipment is not an asset of the Company at the time of the execution of the debenture.”

53. This argument is advanced despite the provisions of s. 62 of the 1964 Act provides, inter alia, as follows:-

“62. — (1) A registered owner of land may, subject to the provisions of this Act, charge the land with the payment of money either with or without interest, and either by way of annuity or otherwise, and the owner of the charge shall be registered as such… …

(7) When repayment of the principal money secured by the instrument of charge has become due, the registered owner of the charge or his personal representative may apply to the court in a summary manner for possession of the land or any part of the land, and on the application the court may, if it so thinks proper, order possession of the land or the said part thereof to be delivered to the applicant, and the applicant, upon obtaining possession of the land or the said part thereof, shall be deemed to be a mortgagee in possession”.

54. In Tanager Designated Activity Company v. Rolf Kane [2018] IECA 352, the Court of Appeal considered certain questions of law referred by Noonan J. The first of these questions posed was as follows:

“1) Does the Defendant have an entitlement to challenge the registration of the Plaintiff as owner of the charge at entry no. 7 on the Defendant's folio in these proceedings, having regard to the conclusiveness of the Register pursuant to s.

31 of the 1964 Act?”

55. The Court of Appeal answered that question in the negative.

56. In this case it is not disputed that the Defendant/Appellant entered into a mortgage which secured monies advanced to them by way of a charge on the property. The Plaintiff/Respondent is the registered owner of that charge. If any issue lies with the

Register, then the remedy is an application for rectification of the Register. No such application has been brought on behalf of the Defendant/Appellant and the Plaintiff/Respondent is entitled to possession in summary proceedings in reliance on the registration of the charge in its name.

57. It seems to me that this suffices to dispose of the Defendant/Appellant’s argument. I am not entitled on this application to look behind s. 62 of the 1964 Act which provides for the conclusiveness of the Register as evidence of ownership as established, on the jurisprudence. The result must be that proof of entitlement to possession by the moving party is made out by reference to the existence of the charge duly registered on the Folio in its name without necessity to separately establish the existence of a charge.

58. For completeness, however, I propose to nonetheless address at a high level and in necessarily obiter terms the Defendant/Appellant’s argument. The argument appears to be advanced on the basis that the Defendant/Appellant did not own the property when entering into the Deed of Mortgage and therefore was not “now seized or possessed of the Mortgaged Property” and could not give a mortgage in respect thereof.

59. Although deposed to on behalf of the Plaintiff/Respondent in grounding the within application that the Deed of Mortgage was dated the 17th of December, 2004, it was pointed out in submissions on behalf of the Defendant/Appellant on this appeal that it was unclear, due to interlineations on the face of the Deed of Mortgage, whether it was executed on the 17th of December, 2004, or the 17th of December, 2005, (both “4” and “5” have been written superimposed one on the other), a fact identified as potentially relevant to the defence advanced to the effect that a legal mortgage had not been created on the asserted basis that the Defendant/Appellant was not yet the owner of the Property when executing the Deed of Mortgage and the Deed used present tense language. Some reliance was placed on the interlineations on the date on the Deed of Mortgage to make this argument, although the argument was not entirely coherent as the argument appeared to be that the Deed was executed in 2005 and not 2004.

60. Even if the Defendant/Appellant were correct in the position which I understood him to seek to agitate in relation to the signing of the Deed in 2005, the interlineations identified on the Deed of Mortgage would not avail him where the point he seeks to make is that at the time the Deed of Mortgage was created, the Defendant/Appellant did not own the mortgaged property and could not therefore have agreed to mortgage the property. Self-evidently, if the Deed of Mortgage was signed in December, 2005, instead of 2004, then it is manifestly the case that the Defendant/Appellant was the owner of the Property by the later date as it had, by then, already been registered in his name. Of course, this also serves to demonstrate that the correct date must be December, 2004, as it would not be possible to register a charge in February, 2005, that had not yet been created.

61. Indeed, it seems to me to be incontrovertible from the surrounding facts that the date on the Deed of Mortgage must be December, 2004. This is the only logical conclusion supported by the facts established in evidence given that registration of ownership of the property and of the charge occurred on the 11th of February, 2005. It bears emphasis that the Defendant/Appellant’s signature on the Deed is witnessed by a solicitor and the same solicitor is recorded on the Land Registry records as registering the Defendant/Appellant as full owner, all consistent with the Deed of Mortgage being duly signed in the presence of a solicitor engaged to procure registration of the Defendant/Appellant’s title.

62. The argument sought to be agitated makes slightly more sense, if, as the Plaintiff/Respondent has always maintained, the Deed of Mortgage was executed in December, 2004. I cannot deduce from the fact that the Deed of Mortgage was signed in December, 2004 that the Defendant/Appellant was not at that time entitled to assert ownership over the Property. No evidence has been put before me as to when a contract of sale was entered into to establish that the Defendant/Appellant had not entered into a contract of sale when executing the Deed of Mortgage. In fact, no evidential basis for this contention is advanced beyond the interlineation which appears in two places on the Deed of Mortgage. Even in the new evidence sought to be adduced, the factual position regarding the date of a contract for sale is not addressed.

63. No evidence whatsoever has been adduced as to when the Defendant/Appellant acquired the interest in the Property which he had agreed to mortgage, if other than as deposed to on behalf of the Plaintiff/Respondent, to ground his argument that the Deed of Mortgage did not result in the creation of a legal charge. Insofar as the

Defendant/Appellant points to the date appearing on the Folio as the date ownership was registered, he ignores the fact that the record shows the date of registration and not the date of ownership. It is to be expected that the date of registration should post-date the date of legal ownership and the date of creation of the Deed of Mortgage.

Accordingly, the evidential basis for the line of defence sought to be agitated has not been laid.

64. In any event, it seems to me that the argument should properly be treated as a “red herring”. The Court noted in Tanager, that the ascertainment of what might be called the “true beneficial interest” in a registered title is a matter that may be determined only in equity proceedings. It was reiterated in Bank of Ireland v. Cody that the conclusiveness of the Register cannot be challenged by way of defence in summary possession proceedings and that the court hearing an application for summary possession at the suit of the registered owner of the charge is entitled to grant an order provided it is satisfied that the plaintiff is the registered owner of the charge and the right to possession has arisen and become exercisable.

65. As for thethe application for an adjournment to permit of a rectification application if I were not minded to decide that an arguable basis for defence had been demonstrated, I acknowledge that there may rarely be cases where an adjournment might be considered suitable in summary possession proceedings to permit an application for rectification of the Register to be pursued. This does not appear to me to be such a case as no proper basis for adjourning these proceedings has been demonstrated in this case.

66. Firstly, the Defendant/Appellant has had ample opportunity to bring such proceedings if he truly believed or was advised there was any real merit in same. In Bank of Ireland v. Cody, it was observed that if such proceedings were in being it might amount to a ground to adjourn an action for possession or to list it to run after the rectification or amendment proceedings had concluded, the inference being that it would be very unusual for an adjournment to be granted to bring proceedings not yet in existence and where there is no question of a defendant having been deprived of an opportunity to do so. In this case the Defendant/Appellant has had the benefit of legal advice and representation but despite this did not have instructions in relation to the bringing of a rectification application when the matter came on for hearing before me notwithstanding having mooted a basis for such an application during oral submissions.

The unavoidable conclusion is that the issue raised belatedly and not pursued in the appropriate manner was ventilated as a delaying tactic.

67. Quite apart from the failure to bring such proceedings in a timely manner which selfevidently weighs against any deferral of judgment on this application, it has not been demonstrated that such proceedings could be reasonably likely to offer a defence to the claim for possession. It is noted that in Pepper Finance Corporation (Ireland)

Designated Activity Company v. Egan [2025] IEHC 31, the Court (Bolger J.) (at para.

16) found that the deed of transfer on which the Plaintiff relied clearly identified both the property and the loan account number of the mortgage which matches the account number on the defendant’s original mortgage loan offer letter from the initial lender in being satisfied to affirm Pepper as legal owner for the purpose of possession proceedings. Similarly, in this case, the Property is readily identified in the various title documents that make up the proofs. No arguable basis for contending that the Plaintiff/Respondent is not properly registered as the owner of the charge or that the charge is ineffective has been demonstrated.

Evidence of Default Inadmissible

68. It has been averred on behalf of the Plaintiff/Respondent that despite demand the Defendant/Appellant failed to pay the monies due or deliver up possession of the Property and accordingly the Plaintiff’s power of sale arose under the charge and became exercisable. The level of the Defendant/Appellant’s indebtedness under the loan agreement has increased since proceedings commenced in circumstances where the undisputed evidence before me is that no payments have been made by the Defendant/Appellant since 2012. Increasing levels of indebtedness have been addressed by supplemental affidavits on behalf of the Plaintiff/Respondent sworn from time to time in these proceedings. This notwithstanding, the Defendant/Appellant takes issue with the evidence establishing default. Specifically, complaint is made regarding reliance on affidavit in support of this application on:

(i) ten years of loan account details (2004-2014) (the period of the loan alleged belonging to Irish Nationwide Building Society) not provided at all;

(ii) a statement of account detailing a further three years of Pepper-branded loan account information (2014 to 2017) dated as being generated in March 2017 (weeks prior to the deponent swearing to the same loan account statement on May 2017);

(iii) the same period overlapped partially in another loan statement dated as generated in November 2023, days prior to the swearing of an affidavit on the 21st of November 2023 covering the entire period of August 2014 to November 2023.

69. The Defendant/Appellant’s arguments objecting to the admissibility of these statements on the basis that they are not records of a course of dealing or an ordinary course of business record within the meaning of the provisions of the Civil and Criminal Law (Miscellaneous Provisions) Act, 2020 and therefore fall foul of the dicta in Promontoria (Aran) Limited v Burns [2020] IECA 87 and are inadmissible hearsay evidence, lack merit. In advancing this argument as well as arguments in reliance on Bank of Ireland v. O’Malley [2019] IESC 84 as regards the level of particularisation required, the Defendant/Appellant fails to properly appreciate the difference between a claim for a money sum and an Order for Possession based on a registered charge and the fact of continuing default. As pointed out in Start Mortgages Designated Activity Company v.

Clarke [2024] IEHC 310, this is an important distinction.

70. Just as in Start Mortgages Designated Activity Company v. Clarke, in this case the Plaintiff/Respondent is not seeking summary judgment in respect of a specific sum of money, or ‘liquidated’ debt. Rather, the Plaintiff/Respondent is seeking possession of property. Thus, this court is not asked to determine the quantum of monies owed by the Defendant/Appellant which might well involve analysis of how a total sum is computed. The key question for me in these proceedings is whether there has been “default” in the manner defined in the charge by which the loan, which the Plaintiff/Respondent (or its predecessors) provided to the Defendant/Appellant, was

secured on the property. This is entirely different to the role of the court where a specific money sum is claimed.

71. I am satisfied that there is ample evidence that the Defendant/Appellant is in default on his loan agreement. At no point has the Defendant/Appellant disputed the Plaintiff/Respondent’s position that no money whatsoever has been paid since 2012 or sought to contend that he is not in default. The Defendant/Appellant’s contention that proofs are not made out due to an absence of sufficient admissible evidence is not a meritorious one and does not provide the basis for an arguable defence. Accordingly, any hearsay issue raised in respect of statements of account generated for the purpose of proceedings (if same were established), could not defeat an entitlement to summary judgment where the fact of ongoing default is not in doubt.

72. Furthermore, for completeness, I do not accept that the fact that a statement of account is generated prior to the swearing of an affidavit detailing historic information renders the statement other than a record information compiled in the ordinary course of business. It is confirmed on behalf of the Plaintiff/Respondent that the loan account statements which set out the details of the payments and arrears of the Defendant/Appellant were generated from data which was compiled in the ordinary course of a business as to the payments made or lack of payment. I am satisfied that in the normal, everyday course, an up-to-date statement of account is generated from data compiled in the ordinary course of a business.

73. The Defendant/Appellant’s reliance on Promontoria (Aran) Limited v. Burns [2020] IECA 87 in support of the inadmissibility arguments pressed on his behalf is misplaced in circumstances where that case was concerned with a summary judgment of a monetary sum which would have to be particularized in line with the principles set down in Bank of Ireland v. O’Malley. Further, the issue in Promontoria (Aran) was that the deponent of the affidavits in question exhibiting the impugned statements of account was not an employee of the Plaintiff in that case, but rather an employee of a company which administered debt collection on its behalf. Despite this matter being before the Courts for more than seven years, no issue was taken by the Defendant/Appellant with the statements of account exhibited until after the Order for Possession was made in the Circuit Court.

74. I see no basis for finding that s. 14(1)(a) of the Civil and Criminal Law (Miscellaneous Provisions) Act, 2020 would not apply to treat the information contained in the exhibited up to date statements of account inadmissible in civil proceedings as evidence of the facts set out in the statement. The fact that the statement of account is generated to give up to date information in proceedings before a court does not render it information compiled for the purposes of or in contemplation of proceedings within the meaning of s. 14(3)(iii) of the 2020 Act and therefore excluded from the scope of admissibility under s. 14(1) of that Act. The fact that a statement of account is generated so that up-to-date information can be presented to the Court does not render it other than a document compiled in the ordinary course of business.

75. In any event, as already noted, in proceedings for possession of this type there is no requirement to proof a precise monetary sum in line with O’Malley principles and no arguable basis for defence has been made out on the basis that default has not been established in evidence by reason of reliance on composite, up to date statements of account. It bears repetition that at no point has the Defendant/Appellant denied that the debt as set out in the loan statements is not due and owing to the Plaintiff/Respondent.

76. The Defendant/Appellant has not demonstrated a credible, or any, defence to summary judgment and has failed to ground any basis to adjourn the matter to plenary hearing.

CONCLUSION

77. The Plaintiff/Respondent has met the test confirmed in Bank of Ireland Mortgage Bank v. Cody and has established that it is the owner of the charge and that the right to seek possession has arisen and is exercisable on the facts. In circumstances where no arguable basis for defending the claim have been advanced, I am satisfied that the Plaintiff/Respondent is entitled to an Order for Possession on this application.

78. As the Plaintiff/Respondent has been entirely successful on this appeal, my preliminary view is that it should be entitled to the costs of the proceedings both in the Circuit and High Court but I will hear the parties should an alternative order be contended for. This matter will be listed for mention before me after 14 days from the electronic delivery of this ruling for final orders and the terms of same, unless the terms have otherwise been agreed and communicated to the Court Registrar in advance.