High Court grants possession order against defendant who offered no credible defence in de novo hearing.

THE HIGH COURT

[2025] IEHC 661

RECORD NO. HCA2025/0000020

BETWEEN

MARS CAPITAL FINANCE IRELAND DAC

PLAINTIFF

-AND-

GERARD WALSHE

DEFENDANT

JUDGMENT of Mr. Justice Mark Heslin delivered on the 25th day of November 2025

Introduction

1. A hearing of the plaintiff's application for possession of certain property took place on 30 October 2025. Mr. Newman B.L. represented the plaintiff. The defendant represented himself and was accompanied by an adult son who provided him with certain assistance.

A de novo hearing

2. For the defendant’s benefit, it is necessary to point out that the will of the Irish people, as expressed in s. 37 of the Court of Justice Act, 1936, is that an appeal in this type of civil action, where no oral evidence was given in the Circuit Court: “… shall be heard and determined by one judge of the High Court sitting in Dublin and shall be so heard by way of rehearing of the action…”.

3. As the mandatory term shall makes clear, this Court is required to conduct a re-hearing, often referred to a de novo hearing (literally, ‘from the beginning’) i.e. an entirely new trial which is conducted as if the first hearing never happened.

4. A de novo hearing is different from other appeals, which typically review the earlier decision for errors, be they of fact or law. In a de novo hearing, this Court does not defer to any views expressed or findings made in the Circuit Court. I emphasise the foregoing in this judgment (and pointed it out to the defendant during the hearing) because of his repeated reference to orders made in the Circuit Court and what he submitted to be views expressed by the learned judge in the court below.

This Court’s role

5. As I pointed out to the defendant in court, the hearing before me was an entirely ‘fresh’ one, with my role being to consider the evidence and to make an independent decision based on an application of the relevant law to the facts disclosed in the evidence (the standard being the ‘civil’ one, i.e. on the balance of probabilities). Having made the foregoing clear, I now turn to the facts.

Civil Bill

6. The plaintiff issued the relevant Civil Bill for possession on 9 November 2022 (“the Civil Bill”). The special indorsement to the Civil Bill sets out the claim and, in the manner I will presently come to, each plea is averred to in the affidavit sworn, on 1 November 2022 by Mr. Ronan Hopkins, a manager employed by the plaintiff, who was authorised to swear on its behalf (the “grounding affidavit”).

Property

7. The property in question is described as follows in the schedule to the Civil Bill:

“All that and those the property at Lisdeen, Kilkee, Co. Clare comprised in folio CE33286F County Clare” (the “property”).

Jurisdiction

8. The property’s description is immediately followed by: “The Circuit Court has jurisdiction to hear these proceedings pursuant to s. 22 of the Courts (Supplemental Provisions) Act, 1961 (as amended) as the market value (within the meaning of section 2 (1) of the said Act) of the property does not exceed €3,000,000”. There is no issue raised in relation to jurisdiction.

Grounding affidavit

9. Having averred to his position as manager in the plaintiff and his authority and to swear the affidavit, Mr. Hopkins explicitly avers: “I make this affidavit from facts within my own knowledge and from information derived by me from my examination of the plaintiff's books, accounts and records which are in my custody and under my control. The statements I make herein which relate to my own acts and deeds are true and the statements I make herein which relate to the acts and deeds of others I believe to be true”. No issue has been taken with the foregoing averments.

The Folio

10. After verifying the contents of the Civil Bill to be true, Mr. Hopkins describes the property and exhibits a certified copy of Land Registry Folio CE33286 County Clare (“the Folio”). Part 2 of the Folio, which deals with ownership, confirms that, as of 12 January 2001 “Gerard Walshe (businessman) of Lisdeen, Kilkee, County Clare is full owner”. The entry goes on to note that a Land Certificate was issued on 31 March 2004 to Cashin & Associates, Solicitors, of 3 Francis Street, Ennis.

Part 3

11. Turning to Part 3 of the Folio, which concerns “Burdens and Notices of Burdens”, entry number 3, dated 27th February 2004, is as follows:

“Charge for present and future advances repayable with interest. Allied Irish Banks Plc is owner of this charge… Note: the ownership of this charge has been transferred. See entry no. 10.”

Entry No. 10

12. Entries 5 to 9, inclusive, comprise the registration, as burdens, of a number of judgment mortgages, whereas entry number 10, dated 4 June 2021, is as follows:

“MARS Capital Finance Ireland Designated Activity Company is owner of the charge registered at entry no. 3.”

13. In light of the foregoing, and for the benefit of the defendant, it is appropriate to refer to certain legislative provisions and legal principles, given that (i) the property in question is ‘registered’ land; and (ii) the plaintiff is the owner of the charge registered as a burden on the defendant's Folio.

The creation of a charge

14. The creation of a charge and the effect of same on registered land is dealt with at s. 62(1) of the Registration of Title Act, 1964 (the “1964 Act”) which provides:

“…(2) 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.”

15. It will be recalled that entry number 3 at Part 3 of the defendant’s Folio is a charge, dated

27 February 2004, in favour of Allied Irish Banks plc.

Transfer of a charge

16. The transfer of a charge is dealt with at s. 64 of the 1964 Act, which states:

(1) The registered owner of a charge may transfer the charge to another person as owner thereof, and the transferee shall be registered as owner of the charge.

(2) There shall be executed on the transfer of a charge an instrument of transfer in the prescribed form, or in such other form as may appear to the Registrar to be sufficient to transfer the charge, but until the transferee is registered as owner of the charge, that instrument shall not confer on the transferee any interest in the charge.

(3) The Registrar shall deliver to the registered transferee a certificate of charge in the prescribed form.

17 It will be recalled that entry number 3, Part 3, went on to state that “the ownership of this charge has been transferred” and referred to entry number 10. Hence, a transfer was executed in compliance with s. 64 (2) and, as noted earlier, entry number 10 confirmed that the plaintiff is now (per the entry at number 10) the owner of the charge registered at entry number 3 (originally in favour of AIB plc).

The transferee of a charge

18 Bearing in mind that the plaintiff is the registered “transferee” of the charge, s. 64 (4) of the Act provides:

“(4) On registration of the transferee of a charge, the instrument of transfer shall operate as a conveyance by deed within the meaning of the Conveyancing Acts, and the transferee shall—

(a)have the same title to the charge as a registered transferee of land under this Act has to the land, under a transfer for valuable consideration or without valuable consideration, as the case may be; and

(b) have for enforcing his charge the same rights and powers in respect of the land as if the charge had been originally created in his favour.” (emphasis added)

19 Therefore, as a matter of law, the plaintiff now ‘stands in the shoes’ of AIB plc in relation to both the ownership, and enforcement, of the charge.

Conclusiveness of the Register

20 Section 31 of the 1964 Act is also of relevance to the present application in that it provides:

“(1) The register shall be conclusive evidence of the title of the owner to the land as appearing on the register and of any right, privilege, appurtenance or burden as appearing thereon; and such title shall not, in the absence of actual fraud, be in any way affected in consequence of such owner having notice of any deed, document, or matter relating to the land; but nothing in this Act shall interfere with the jurisdiction of any court of competent jurisdiction based on the ground of actual fraud or mistake, and the court may upon such ground make an order directing the register to be rectified in such manner and on such terms as it thinks just.” (emphasis added)

No challenge to the validity of any entry in the Register

21 I pause to say that, whilst the defendant swore two affidavits in opposition to the plaintiff’s claim, he did not aver that any entry in his Folio was based on fraud or mistake. Furthermore, at no stage has the defendant signalled any intention to commence, still less has he ever issued, legal proceedings challenging any entry in the Folio on the basis of alleged fraud or mistake. For reasons which will become obvious when I look at the submissions made by the defendant, it is also appropriate to say the following.

22 Despite the fact that it was registered on 27 February 2004, the defendant made no suggestion during the following 2 decades and more that there was anything amiss with the charge in favour of Allied Irish Banks plc. Furthermore, despite the fact that, as of 4 June 2021, the plaintiff was registered as owner of the charge, the defendant made no challenge to the registration of the plaintiff as owner of the charge (which, per section 31 of the 1964 Act, is conclusive).

What the conclusiveness of the Register means for this application

23 The significance of s. 31 is illustrated by the judgment in Tanager Designated Activity Company v. Kane [2018] IECA 352 (“Tanager”), wherein the Court of Appeal considered certain questions of law, the first being:-

“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?”

24 The Court of Appeal answered that question in the negative. Thus, this Court has conclusive evidence that the plaintiff is the owner of the charge registered in the Land Registry as a burden on the defendant’s Folio.

25 Given the fact that the defendant is not a legal professional, I propose to examine in this judgment each of the various arguments canvassed by him in opposition to the plaintiff’s claim. This is so that the defendant can clearly understand the reasons for this Court’s decision. However, my doing so is not to be taken as conferring upon the defendant any right to ‘look behind’ or challenge, in this application, the conclusiveness of the entries in his Folio. As the Court of Appeal has made clear in Tanager, he has no such right.

26 I make this point because the gravamen of all the defendant’s submissions is to argue that the Folio is wrong and that neither AIB plc nor the plaintiff should have been registered, in turn, as the owner of the charge in question. Bearing that in mind, and so that the defendant can clearly understand the nature of the present application, I now return to the 1964 Act.

S.62 of the 1964 Act

27 S. 62(7) of the 1964 Act provides:

“… (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”

(emphasis added)

A ‘summary’ application

28 In the foregoing manner, 62(7) explicitly permits a registered owner of a charge (in this case, the plaintiff) to seek possession in a “summary manner”. The significance and effect of s. 62

(7) and the nature of summary applications were explained by Ms. Justice Baker in the Supreme Court’s decision in Bank of Ireland Mortgage Bank v. Cody [2021] IESC 26 (“Cody”) wherein the learned judge stated:

“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:

‘The words ‘may, if it so thinks proper’ in s. 62, sub-s. 7 mean no more, in my view than, that the court is to apply equitable principles in considering the application for possession. This means that the court must be satisfied that the application is made bona fide with a view to realising the security.’ (p. 111)

17. The procedure was explained in the decision of this Court in Irish Life and Permanent v.

Dunne [2015] IESC 46, [2016] 1 IR 92, in which it held that any court seeking to make an order for possession under s. 62(7) must first ask itself whether, as a matter of law, it can properly be said that the monies are secured and are due”. (emphasis added)

The ‘proofs’ for a plaintiff

29 In Start Mortgages DAC v. Ryan [2021] IEHC 719 (“Start v. Ryan”), Mr. Justice Woulfe, sitting in this Court, analysed the ‘proofs’ required in an application of the present type. From para. 21, he explained matters 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” (emphasis added)

Key questions

30 Noting the provisions of Ord. 5B of the Circuit Court Rules (which concerns, inter alia, legal proceedings for possession) and guided by the principles articulated in Cody and in Start v. Ryan, it seems to me appropriate to keep in mind a number of questions when examining the evidence in the present case, namely:

(i) are the relevant monies secured (e.g. by way of mortgage)?;

(ii) has there been default, resulting in the secured monies having become due? and;

(iii) is the application made bona fide with a view to realising the security?

31 If these 3 questions are answered in the affirmative, a 4th question arises, namely;

(iv) has the defendant established a credible defence?

The mortgage/charge

32. Against that backdrop, I now return to the grounding affidavit, wherein Mr. Hopkins avers inter alia at section (E):

“By letter of offer dated the 15 May 2003 Allied Irish Banks, Plc (hereinafter called “the lender”) offered the defendant a loan of €250,000 (hereinafter called “the facility”). The terms included security by way of a mortgage/charge over the property and repayments by monthly instalments. It was further agreed that in the event of the defendant failing to comply with any of the terms under which the money was offered the lender would be entitled to demand immediate repayment of all sums due.”

33. Mr. Hopkins exhibits a copy of the said letter of offer which contains inter alia the following particulars:

“Customer name Mr. Gerard Walshe Mortgage loan amount €250,000 Loan term 20 years/240 months Loan type annuity Applicable interest rate (at offer date) 3.68% varying… Amount of monthly repayment instalment (at offer date) €1,472.25 Property to be mortgaged Lisdeen, Kilkee, County Clare Property price/estimated value of property €320,000… Name and address of your solicitor Cashin & Associates Solicitors, 3 Francis Street…”

34. The “Special Conditions” contained in the said letter of offer include inter alia the following:

“It is a condition of sanction that the following borrowings are cleared on drawdown of this facility: PTSB C. €153,000”

35. As the Folio makes clear, the defendant’s indebtedness to PTSB was cleared, consistent with the fact that the loan was drawn down. I mention this because, during oral submissions, the defendant made the fanciful suggestion that there was no evidence of drawdown and that he knew nothing about this loan. That submission is further and fatally undermined by the following.

The defendant’s acceptance of loan facilities

36. Part 7 of the letter of offer was signed by the defendant and witnessed by his solicitor, on

28 May 2003, under the heading “Acceptance and Consent”, which stated inter alia the following:

“I/we accept the conditions of this offer and agree to mortgage the property to the bank as security for the mortgage loan” (emphasis added)

37. I pause at this juncture to state that, despite his oral submissions during the hearing, the defendant has never averred that he did not (i) apply for a loan of €250,000; (ii) receive and accept an offer of mortgage loan for €250,000 to be repaid over 20 years on the terms specified therein;

(iii) enter into a mortgage of the property in favour of AIB plc (including its transferees, successors and assigns) as security for the loan; and (iv) drawdown and receive the €250,000 loan amount.

The Mortgage

38. Returning to the grounding affidavit, Mr. Hopkins avers inter alia that “By deed of mortgage/charge, dated the 28th June 2003, the defendant mortgaged/charged the property to secure payment of all sums then or thereafter due together with interest. The charge was registered as a burden on the folio…” (the “mortgage”).

39. Mr. Hopkins exhibits a copy of the mortgage which, inter alia, names the defendant as mortgagor; describes the address and specifies the Folio of the property; and refers to the letter of offer, dated 20 May 2003, which was accepted by the defendant, as mortgagor, in respect of a loan amount of €250,000 (the “loan offer”).

40. Internal page 15 of the mortgage was signed by the defendant, as mortgagor, in the presence of Mary P. Cashin solicitor, Ennis (and it will be recalled that the Land Certificate issued to her firm, on 31 March 2004, per entry number 1 at Part 2 of the defendant’s Folio).

41. The mortgagee, Allied Irish Banks plc, is described in the mortgage as (the “Bank”) which “includes the transferees, successors and assigns of the Bank” (per clause (3) of the definitions section, at (B) on internal page 4).

The mortgagee’s power to enter into possession of the property

42. Internal page 12 of the mortgage contains inter alia the following provisions:

“6. The Bank’s powers as mortgagee

6.01 At any time after the execution of this mortgage the Bank may without any further consent from or notice to the mortgagor or any other person enter into possession of the mortgaged property or any part thereof or into receipt of the rents and profits of the mortgaged property or any part thereof”. Default

43. The foregoing is qualified by s. 7 of the mortgage, which provides inter alia the following:

“7. Exercise of the Bank's powers

7.01 The Bank shall not exercise any of the powers provided for in clause 6 hereof unless and until any of the following events shall occur:

(a) Default shall have been made for 3 months in payment of any monthly or other periodic payment or in payment of any other of the secured monies hereunder…”

44. Returning to the grounding affidavit, Mr. Hopkins avers inter alia that: “pursuant to agreement, the lender advanced and the defendant borrowed monies under loan account 93035015125119” and Mr. Hopkins exhibits statements in respect of the said loan account covering the period from 31 December 2004 to 2 January 2020, inclusive.

Statements

45. Each and every one of the 25 numbered pages of the said statements contain, inter alia, the following details:

“Mr Gerard Washe

Lisdeen,

Kilkee

Co. Clare …

Account name

Gerard Walshe

Home mortgage account…

Account number

15125-119…”

46. I pause once more to note that the defendant has never averred that he did not receive these statements. Looking at their contents, the “Balance forward” as of 31 December 2004 is stated to be €245,088.39, consistent with the loan having been drawn down and being repayable in accordance with the term of the loan offer. Thereafter “credit €” and “debit €” entries are noted. For example, various entries entitled “loan repayment” appear in the credit column, whereas various “AIB unpaids” appear in the debit column. From August 2006 onwards, there were no “credit €” entries until 23 May 2008, at which point a credit entry of €250 is recorded. This is followed by entries of €250; €240; €200; €150; €300; €220; and €215, on various dates up to 15 July 2009, from which point a series of €20 or €40 entries are recorded, up to March 2010, when a credit entry of €8,000 in respect of a “draft” appears. This is followed by a series of €20 credit entries, at various points, from 26 March 2010 up to 2 August 2011.

No payment since August 2011

47. I pause at this point to note that the defendant does not dispute (i) the fact that he made repayments in accordance with the entries on the said statements; and (ii) the fact that the last payment which he made in respect of the said home mortgage account was the sum of €20, on 2 August 2011. During oral submissions, the defendant made reference to the circumstances in which he ceased making payments. Leaving that aside, two points deserve emphasis. First, it is common case that the defendant has made no mortgage payment in over 14 years. Second, the fact that the defendant made a series of repayments between 2003 and 2011 is impossible to ‘square’ with his oral submissions to the effect that he knew nothing about the loan.

48. It is not in dispute that clause 3 (on internal pages 8 and 9) of the mortgage entered into by the defendant contains the charging clauses whereby the defendant, as mortgagor, granted, conveyed and assigned to the Bank, as mortgagee, his entire interest in the property, subject to the proviso for redemption, specified at clause 4 of the mortgage in the following terms:

“4.01 Provided always that if the mortgagor shall pay to the Bank the secured monies pursuant to the covenants in that behalf contained in this mortgage then and in any such case the mortgaged property shall be released and discharged from the security hereby constituted”.

The defendant’s repayment obligation

49. The covenants given by the mortgagor appear at clause 5 (on internal pages 10 and 11) of the mortgage and begin as follows:

“5.01 The mortgagor hereby covenants with the Bank during the continuance of this mortgage”.

50. Internal page 6 of the mortgage contains “covenants for payment” including:

“1.01 The mortgagor hereby covenants with the bank:

(a) To repay the present loan and to pay all interest thereon at the applicable interest rate and all other monies payable from time to time in accordance with the relevant letter of offer and this mortgage.

(b) To repay any future loan pursuant to any relevant letter of offer and to pay all interest thereon at the applicable interest rate and all other monies payable from time to time in accordance with any such letter or letters of offer and this mortgage.

1.02 Notwithstanding the foregoing sub-clauses the present loan and any future loan or so much thereof as shall for the time being remain unpaid and all interest approved thereon remaining unpaid shall immediately become due and payable on demand to the bank on the occurrence of any of the following events:

(a) On the happening of any event of default…”

51. I pause, again, to note that nowhere does the defendant dispute the fact of his default in relation to the foregoing repayment obligations. Nor does he take issue with any of the contents of the loan offer or mortgage which he entered into.

Transfer: AIB plc to AIBMB

52. The grounding affidavit sworn by Mr. Hopkins describes, by means of the following averments, the manner in which AIB Mortgage Bank (“AIBMB”) became entitled to all rights in relation to the security granted by the defendant in favour of AIB plc:

“By virtue of:

(a) section 58 of the Asset Covered Securities Act (No. 47 of 2001); and

(b) the Asset Covered Securities Act, 2001 (approval of transfers between Allied Irish Banks, plc and AIB Mortgage Bank) Order 2006 (S.I. No. 60 of 2006); and

(c) and a Scheme dated the 8th day of February 2006 made between Allied Irish Banks, plc and AIB Mortgage Bank for the purposes of section 58 of the Asset Covered Securities Act, 2001; and

(d) a Transfer Agreement dated 8th February 2006 made between Allied Irish Banks, plc and AIB Mortgage Bank; and

(e) a Schedule no. 4 dated the 24th day of February 2011 made for the purposes of the said scheme and by the same parties to the said scheme.

The borrowers obligations to Allied Irish Banks, plc in respect of the account and the benefit of the mortgage/charge and the powers contained in the mortgage/charge which secured the said obligations were transferred to AIB Mortgage Bank. On the 1st October 2020 AIB Mortgage Bank changed its name to AIB Mortgage Bank u.c….”

53. Mr. Hopkins then exhibits s.58 of the Asset Covered Securities Act, 2001 (the “2001 Act”); the said statutory instrument; the Scheme dated 8th February 2006; the Transfer Agreement; and Schedules 1 and 4 thereto.

S.58 of the Asset Covered Securities Act, 2001

54. Turning to section 58 of the 2001 Act, it provides inter alia:

“(8) A transfer of a business or assets under this section takes effect -

(a) subject to any conditions imposed on the approval of the transfer, and

(b) on the date or dates specified in the scheme.

(9) On the transfer of a business or assets under this section -

(a) the transferee credit institution has the same rights (including priorities) and obligations in respect of that business or those assets as the transferor credit institution had immediately before the transfer took effect, and

(b) the transferor ceases to have those rights and obligations.

(10) A transfer of an asset under this section, whether specifically or as part of a transfer of a business, does not need to be registered under the Registration of Deeds Act, 1707, the Bills of Sale (Ireland) Acts, 1879 and 1883, the Companies Act, 1963, the Registration of Title Act, 1964, and any other Act that provides for the registration of assets or details of them. For the purposes of any of those Acts that would apply to it but for this subsection, such a transfer has effect as a deed registered on the date on which it took effect.

(11) If legal proceedings are pending immediately before the time when a transfer under this section takes effect, those proceedings are to continue. At that time, the transferee credit institution –

(a) replaces the transferor credit institution as a party to the proceedings, and

(b) assumes the same rights and obligations in relation to those proceedings as the transferor credit institution had immediately before that time.”

55. In the foregoing manner, the effect of a statutory transfer in accordance with the provisions of the 2001 Act, is a ‘seamless’ one. Not only is it explicitly averred that such a transfer took place with respect to the security over the defendant's property, the documentation exhibited on behalf of the plaintiff puts that beyond any doubt.

Scheme

56. Turning to the executed version of the Scheme, dated 8 February 2006 (wherein Allied Irish Banks plc is described as “AIB” and AIB Mortgage Bank is described as “AIBMB”) Schedule 1 provides inter alia:

“This Schedule sets out certain details in respect of a Transfer for the purposes of the Scheme, the Order and section 58 of the Asset Covered Securities Act 2001.

1. Transferor in respect of the transfer: AIB

2. Transferee in respect of the transfer: AIBMB

3. Home mortgage business subject to the transfer:

The entire home mortgage business of AIB relating to AIB's home mortgage department immediately before the relevant transfer date (see point 5 below) including, for the avoidance of doubt, the part of the relevant business specified or referred to at A below, but subject to the exclusion of the part of the relevant business specified or referred to at B below;

A. Inclusions

(a) All rights, title, interests, benefits and obligations of AIB immediately before the transfer date in, under and to the accounts the numbers of which are set out in the appendix to this schedule;

(b) All rights, title, interests, benefits and obligations of AIB immediately before the transfer date under a mortgage indemnity guarantee policy number 99ON463600 issued by Royal and Sun Alliance Insurance plc (“RSA”) and under a delegated authority agreement dated 14 February 1994 between AIB and RSA related to the abovementioned policy; and

(c) All of the home mortgage assets referred to at 4 below which are the subject of the transfer…”

57. Clause 4 refers to:

“(a) All home mortgage loans held immediately before the relevant transfer date by the home mortgage department, being those home mortgage loans the account numbers and then current balance of which will be contained on a CDROM (such CDROM to be certified for independent purposes only on the relevant transfer date on behalf of KPMG and such certificate to refer to this schedule)…”

58. The exclusions described at “B” comprise, for example, title to the real property from where AIB carried on its home mortgage business; and all plant, machinery, office equipment, stationery, marketing materials and any other equipment used by AIB, before the transfer date, in relation to its home mortgage business. The security over the defendant's property is not expressed to be covered by any of the exclusions at B.

59. A principal submission made by the defendant during the hearing was to contend that the security over his property did not transfer to AIBMB, given the fact that his mortgage account number does not appear in the appendix described at clause A.(a). However, this submission is based on the fundamentally - flawed belief that the only assets transferred were those described at clause A.(a). It is perfectly clear that this is not so.

60. Any objective reading of the words used make ‘crystal’ clear that the transfer also included the assets described at A.(b) and A.(c). As the instrument states in explicit terms, this was a transfer of the “entire home mortgage business” and any objective consideration of the evidence before this Court makes clear that security over the defendant's property was included in the assets described at clause A.(c).

Transfer: AIBMB to the plaintiff

61. The grounding affidavit also contains inter alia the following averments in relation to the subsequent transfer, by AIBMB to the plaintiff, of the relevant security over the defendant's property:

“On the 30th April 2021 Allied Irish Banks plc, AIB Mortgage Bank u.c., EBS D.A.C, Haven Mortgages Limited and AIB Group (UK) plc executed a Deed of Transfer (the “Transfer Deed”)

whereby, inter alia, all rights, title, interest, estate, benefit and entitlement (past, present and future) in the outstanding loan advanced to the defendant and all underlying loan documents, including the facility, were granted, conveyed, assigned, confirmed, transferred and assured to the plaintiff (the “Transfer”).

On the 30th April 2021, Allied Irish Banks plc, AIB Mortgage Bank u.c., EBS D.A.C., Haven Mortgages Limited and AIB Group (UK) plc executed a Form 56 (the “Form 56”) by which they transferred to the plaintiff all rights, title, interest, estate, benefit and entitlement (past and present) in the charge the subject matter of these proceedings. The Form 56 has been lodged for registration with the Property Registration Authority and the plaintiff has now been registered as the new owner of the charge…”

62. In the manner discussed earlier, the plaintiff is, without doubt, the registered owner of the charge in question. It will be recalled that the charge registered at entry number 3 at Part 3 of the defendant’s Folio was in favour of AIB plc, whereas entry number 10 confirmed that the plaintiff is owner of this charge.

63. Why there was no registration, at Part 3 of the Folio, of the acquisition by AIBMB of the charge is perfectly clear from section 58(10) of the 2001 Act, which states that a transfer under that Act did not need to be registered under the 1964 Act.

Transfer Deed

64. Recalling that this Court has conclusive evidence of the plaintiff's entitlement to the charge over the defendant’s property, Mr. Hopkins also exhibits a copy of the relevant Transfer Deed, dated

30 April 2021 (the “Transfer Deed”), to which I now turn. The very first page of the Transfer Deed identifies “the sellers” as being, inter alia, AIB plc and AIBMB, and the plaintiff is identified as the “buyer”. Bearing this in mind, the next page of the Transfer Deed states inter alia that:

“In consideration of [sum redacted] (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 onto 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:… … 1.5. All the estate, right, title and interest in the properties listed in the schedule hereto vested in the sellers as security for the relevant mortgage asset, subject to redemption…”

(emphasis added).

Unredacted entries

65. The Schedule to the Transfer Deed includes the following unredacted entries: CONN ID Borrower ID Borrower names Property ID Property address WHA4724372 4724372 Mr. Gerard Walshe 1000149646 Lisdeen, Kilkee, Co.

Clare.

CONN ID Borrower ID Sub-borrower Sub-borrower Facility ID Legal entity ID’s names WHA4724372 4724372 3594953 Mr. Gerard 930350151 AIB Mortgage Walshe 25119 Bank

66. I pause to note that, as well as identifying the mortgaged property and the mortgagor, the defendant’s mortgage account number is specified. Furthermore, this is one and the same as the mortgage account number which appears on the statements issued to the defendant by AIB plc; by AIBMB; and by the plaintiff, respectively.

67. In short, it is perfectly clear that the plaintiff acquired all rights in the defendant’s loan and mortgage. That is not, however, the full extent of the evidence before me on this issue.

The Mortgage Sale Agreement

68. In addition to the foregoing, Mr. Glenn Hogan, manager for the plaintiff, swore an affidavit on 17 October 2023, in which he made inter alia the following averments, on the plaintiff's behalf and with its authority, as regards the transfer to the plaintiff of the security over the defendant’s property:

“5. I say that the deed of transfer referenced in its recitals the mortgage sale agreement dated 18 February 2021 made between the same parties as the deed of transfer. The deed of transfer further confirmed that terms defined in the mortgage sale agreement shall have the same meanings in the deed of transfer. Accordingly, I am advised by my solicitor and believe that it is appropriate to exhibit a redacted copy of the mortgage sale agreement dated 18 February 2021…

6. I say that those parts of the mortgage sale agreement which have been redacted are commercially sensitive, confidential to the parties to the agreement and irrelevant to the transfer and assignment of the defendant's loan/debt/facility and mortgage/charge/security to the plaintiff. I say that the mortgage sale agreement contains a number of schedules which have also been redacted as they make reference to borrowers, their accounts and/or their properties who are not parties to these proceedings. I say that other schedules to the mortgage sale agreement contained draft documents and/or commercially sensitive documents which are also irrelevant to the transfer and assignment of the defendant's loan/debt/facility and mortgage/charge/security to the plaintiff and which have accordingly been redacted in their entirety. I say that pages in the schedule to the mortgage sale agreement which are entirely redacted for the reasons aforesaid have been removed from the exhibit in ease of this honourable court.

7. I am advised by my solicitor and believe that clause 2 of the mortgage sale agreement comprises the operative sale and purchase clause which confirms the transfer and assignment of inter alia the mortgage assets, the underlying loans and the finance documents amongst the rights and obligations to the plaintiff.

8. In relation to the transfer and assignment of the defendant's loan/debt/facility, underlying loans is defined as inter alia the outstanding loans advanced to the borrowers to be purchased by the plaintiff including in the initial portfolio and the initial portfolio means the portfolio of loans described in part 1 of schedule 1 to the mortgage sale agreement. I say that in part 1 of schedule 1 to the mortgage sale agreement there is unredacted the defendant’s connection ID in the first column, the borrower ID in the second column and the facility ID in the fourth column. I say that these identification numbers match the similar details which were unredacted in the schedule to the deed of transfer previously exhibited.

9. In relation to the transfer of the defendant’s mortgage/charge/security, finance documents is defined as inter alia the security documents and the underlying loan agreements in respect of the properties and properties means each of the properties described in part 2 of schedule 1 to the mortgage sale agreement. I say that in part 2 of schedule 1 to the mortgage sale agreement there is unredacted the defendant’s connection ID in the first column, the property ID in the second column and the property address in the third column. I also say that these identification numbers and the property address match the similar details which were unredacted in the schedule to the deed of transfer previously exhibited.

10. I believe and have been advised by my solicitor that the plaintiff has conclusively evidenced its ownership of the loan/debt/facility and mortgage/charge/security the subject matter of these proceedings and is the party entitled to enforce and/or execute upon the said agreements.”

69. Turning to clause 2 of the Mortgage Sale Agreement, it begins by stating:

“2.1 Subject to the terms and conditions of this agreement, each of the sellers agrees to absolutely and unconditionally sell, transfer, assign and convey, free from all encumbrances, and the buyer agrees to purchase, all the sellers rights, titles, interests and benefits (whether past, present or future) in, to and under the mortgage assets, the underlying loans and the finance documents…”

70. Bearing in mind that internal page 14 of the Mortgage Sale Agreement defines “initial portfolio” with reference to Schedule 1, Part 1 of Schedule 1 includes the following unredacted entries: Connection ID Borrower ID Sub-borrower ID(s) Facility ID Facility currency WHA472437 4724372 359453 93035015125119 EUR

71. Part 2 of Schedule 1, which concerns properties, also contains the following unredacted entries: Connection ID Property ID Property address WHA472437 1000149646 Lisdeen, Kilkee, Co. Clare. Y15AW95

72. Consistent with the averments made on behalf of the plaintiff, the foregoing puts beyond any doubt whatsoever that all rights in the loan and mortgage over the defendant’s property were transferred to the plaintiff. That said, and in the manner previously explained, this Court has, by reason of the exhibited Folio, conclusive evidence of the plaintiff’s ownership of the mortgage/charge.

73. Again, I want to emphasise that, insofar as this Court’s analysis is unnecessary (given the significance of the conclusiveness of the Register) it is conducted so that the defendant can understand why his opposition to the plaintiff’s lacks any foundation in fact or law.

Extraordinary submissions

74. During the hearing, the applicant submitted that there was a lack of evidence of a transfer from AIB plc to AIBMB. Keeping that in mind, it will be recalled that both of those entities were sellers in the Transfer Deed and in the Mortgage Sale Agreement by which the plaintiff acquired the defendant’s loan and security. Therefore, even if there was any substance in the defendant's submission (and there is certainly not) the plaintiff acquired all rights, title and interests from both AIB plc and AIBMB.

75. When questioned about this reality, the defendant submitted that he did not know whether either AIB plc or AIBMB ever had any rights to sell to the plaintiff. The defendant went on to submit that it was not clear to him whether AIB plc ever held “any mortgage” over the property. He proceeded to submit that he previously had a property with a mortgage of €250,000 and, according to him, there may have been a “mix-up” with another mortgage.

76. Before going further, it will be recalled that, for the purpose of seeking to argue that the mortgage which he granted in favour of AIB plc had not been transferred to AIBMB, the defendant cited the fact that his mortgage loan account number was not included in the appendix described at clause A.(a) of the Transfer Deed. However, for the purpose of that argument, the defendant accepted that (i) he sought and was given loan facilities; (ii) he created the mortgage in favour of AIB plc; and (iii) that his mortgage loan account number, per his mortgage loan statements, is 93035015125119. In the manner previously examined, the defendant’s loan and mortgage were included in the assets described at A.(c).

77. It is simply not open to the defendant to simultaneous acknowledge the fact of his mortgage and mortgage loan account and, moments later, to feign ignorance of whether he ever created the mortgage and to assert, as the defendant did, that his mortgage “did not exist”.

78. In short, the submissions made by the defendant are, quite frankly, extraordinary; utterly devoid of merit; and wasteful of court time in circumstances where they ‘fly in the face’ of all of the evidence, including, the acknowledged actions of a defendant who (at the risk of repetition) has never denied:

(i) borrowing the money in question;

(ii) entering into the mortgage and creating a charge over his property as security for his borrowings;

(iii) making repayments against the outstanding loan balance;

(iv) defaulting in relation to his repayment obligations, as mortgagor; and

(v) failing to remedy his default, despite demands.

Assertions of fraud

79. In oral submissions the defendant went on to suggest that Schedule 1, Parts 1 and 2 of the Mortgage Sale Agreement “could have been inserted from some other document”. In making this submission, the defendant plainly called into question the veracity of averments made on behalf of the plaintiff in the affidavits sworn, on 1 November 2022 and 17 October 2023, by Mr. Hopkins and Mr. Hogan, respectively.

80. Unfortunately, this was not a ‘spur of the moment’ assertion by the defendant, given that para 3. of his written submissions refers inter alia to “ …entities registering as owner of alleged debt that they do not own…”, the clear inference being deliberate wrongdoing by employees or agents of the plaintiff with a view to mislead this Court.

81. Furthermore, the defendant contended in oral submissions that there had been what he described as “creative accounting” engaged in; and, at para. 6 of the defendant’s 16 December 2024 affidavit, he referred to what he described as “… irregularities and/or unlawful practices by vulture funds…”.

Assertions which should not have been made

82. In substance, these submission comprise allegations of dishonesty and fraud which simply should not have been made. Why? Because there is not a ‘shred’ of evidence to support any allegation of wrongdoing. Yet, it is entirely obvious that such serious (and baseless) allegations have the potential to impact on others, in particular, the plaintiffs’ deponents.

83. I want to make ‘crystal’ clear that even if these utterly inappropriate assertions of dishonesty can be explained as a last and desperate attempt by the defendant to avoid having to ‘face up’ to his responsibilities, as mortgagor, this certainly does not provide any acceptable excuse.

84. Nor, it must be said, did the defendant withdraw or apologise for these grossly offensive and utterly baseless claims.

Toxic

85. Why baseless allegations of fraud should not have been made by the defendant in this case (and should not be made in any case) is illustrated by the Court of Appeal’s recent decision in Howley v. McClean & Anor. [2025] IECA 77, wherein Mr. Justice O’Moore stated:-

“…the effect on persons accused of fraud can be significant. An allegation of fraud, even if not actually proven at trial, can nonetheless be significantly damaging to the reputation of the person accused of deceitful or fraudulent behaviour. Particularly from the point of view of someone engaged in business or in a profession, an allegation formally made in court proceedings that such an individual has acted fraudulently is of the greatest seriousness”.

(para. 8)

“…the making of an allegation of fraud is so toxic that, even if struck out at an early stage, it is quite likely to result in lingering but palpable damage to the reputation of the person or institution accused of fraud.” (para. 29).

86. I also want to make clear that the undoubted right of the defendant to oppose this claim without instructing legal professionals does not come with an entitlement to make baseless allegations of wrongdoing by others. Nor does his choice not to retain legal professionals excuse the making of assertions which are as toxic and potentially damaging as they are devoid of a basis in evidence. Why? Because the defendant did not need a solicitor or counsel to understand what is true and what is not. His conduct in this respect must be deprecated.

Goodbye letter

87. Returning, once more, to the plaintiff’s grounding affidavit, Mr. Hopkins exhibits inter alia copies of the 'Goodbye' and 'Hello' letters issued to the defendant in respect of the transfer to the plaintiff of the defendant’s loan and security. The first of these is a letter from AIB, dated 10 May 2021, which stated inter alia:

“Information about the transfer of your loan(s)

Dear Mr Walshe,

As detailed in our letter to you dated 25 February 2021, we informed you that we agreed to sell your loan(s) specified in schedule 1 (“your loan(s)”) to Mars Capital Finance Ireland DAC, having its registered office at 1 Warrington Place, Dublin 2.

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…

… your loan(s) will remain in place until all amounts payable have been paid and your obligations to repay such outstanding amounts will be owed to Mars Capital Finance Ireland DAC from the transfer date…” (emphasis added)

Hello letter

88. The second of the exhibited letters, which is dated 14 May 2021, was sent by the plaintiff to the defendant and began as follows:

“Reference: loan account number(s): 93035015125119 (your “loan”)

Dear Mr Walshe

Important information on your facilities

We refer to the previous letter dated 10 th May 2021 in which Allied Irish Banks, plc (the seller) informed you that it sold amounts owing to it in respect of the above loan account(s)

(your facilities) and the facility letter(s), guarantee(s), security documents and rights related to your facility, to Mars Capital Finance Ireland DAC (“MCFID”) (the buyer) with effect from 30th April 2021 (the transfer date).

What will happen after the transfer date?

The seller will continue to provide certain services in relation to your facilities for approximately two months following the transfer date (the transitional period) with the balance of the services to be provided during the transitional period by the seller. All payments during the transitional period should continue to be directed to the seller. … At the end of the transitional period, the seller will no longer provide those services in relation to your facilities and those services will also be provided by the buyer. …

… MCFID will be the data controller of personal data in relation to your loan from the transfer date…

It is important to keep up your payments

It is your responsibility to ensure that you meet all of your payment obligations under your facilities…” (emphasis added)

The 1877 Act

89. In opposition to the plaintiff’s claim, the defendant also made the ‘bald’ assertion that the plaintiff has failed to comply with the provisions of the Supreme Court of Judicature Act 1877 (the “1877 Act”). For the purpose of this application, s. 28(6) of the 1877 Act is the relevant provision. It provides:-

“Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed,) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor:

Provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or any one claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice under and in conformity with the provisions of the Acts for the relief of trustees.”

90. I am satisfied that there is ample evidence that the requirements of s. 28(6) of the 1877 Act have been satisfied. I take this view, having had the benefit of the analysis of s. 28(6) requirements in Ms. Justice Baker’s decision in AIB Mortgage Bank v. Thompson [2017] IEHC 515 (“Thompson”) and, more recently, in Ms. Justice Bolger’s decision in Pepper Finance v. Egan [2025] IEHC 31 (“Egan”). At para. 18 in Thompson, the Baker J. stated the following with regard to s. 28(6) of the 1877 Act:

“The operation of the subsection

18. Finlay Geoghegan J. considered the statutory requirements in O'Rourke v. Considine & Ors. [2011] IEHC 191 and at para. 18, set out the four conditions to be met for a valid assignment under s. 28(6) as follows:

‘(a) The assignment was of a debt or other legal chose in action.

(b) The assignment was absolute and was not by way of charge only.

(c) It was in writing under the hand of the assignor.

(d) Express notice in writing thereof was given to the debtors’.’”

91. In the present case, the assignment by to the plaintiff was absolute; was not by way of charge; was in writing, by the assignor; and express written notice was given to the defendant (in the form of both ‘Hello’ and ‘Goodbye’ letters).

92. In short, the evidence put before this Court by the plaintiff wholly undermines the defendant’s ‘bald’ assertion that the provisions of the 1877 Act have not been complied with. Thus, there is no credible defence with reference to the 1877 Act.

CCMA

93. Returning, once again, to the grounding affidavit, Mr. Hopkins avers inter alia that the present proceedings have not been instituted in contravention of any moratorium period prescribed by the Central Bank's Code of Conduct on Mortgage Arrears (the “CCMA”), nor has there been a breach of any other provision in the CCMA. It is further averred that:

“… the defendant was deemed not co-operating, following a period whereby the defendant was given an opportunity to co-operate and the defendant was notified by way of letter dated 1 September 2014 that he had been classed as not co-operating and informed that legal proceedings could commence immediately and of the right to appeal the said decision.

I say that the defendant did not appeal the said decision. I say that there has been compliance with provision 56 of the CCMA, namely, that every reasonable effort has been made under the CCMA to agree an alternative arrangement with the defendant…”

94. No issue is taken with the foregoing averments. Mr. Hopkins also exhibits copies of correspondence sent to the defendant, which illustrate that the provisions of the CCMA have been complied with.

Demands

95. Having averred inter alia that the defendant failed to pay the monthly instalments due, Mr. Hopkins makes inter alia the following averments in relation to the demands for repayment and for possession, respectively:

“On the 6 October 2022, the defendant was indebted to the plaintiff in the sum of €388,357.18 (which included €107,106.57, for arrears) on foot of the subject account and by letter dated 6 October 2022 the plaintiff demanded payment of the said sum.

Despite demand, the defendant failed to pay the said monies and the plaintiff's power of sale pursuant to the mortgage/charge arose and became exercisable.

By further letter dated 17 October 2022, the plaintiff through its solicitors demanded of the defendant possession of the property.”

96. Copies of the foregoing correspondence are exhibited and the defendant does not suggest that he did not receive these demands. At the risk of stating the obvious, it is a matter of fact that the defendant neither discharged the monies due, nor handed over possession of the property. Instead, he has retained possession despite failing to make any payment during the last

14 years.

Address

97. Turning to the balance of the arguments raised by the defendant in opposition the plaintiff's claim, there is no substance whatsoever in the defendant's complaints regarding an allegedly “inaccurate incomplete address” in the Civil Bill and what the defendant contends to be “a court order to serve proceedings by ordinary post to the wrong/incomplete address”. At all material times the defendant has been on notice of these proceedings and has engaged fully with same, up to and including the hearing. During the hearing before me, the defendant, for perhaps obvious reasons, did not pursue this issue.

Credit Servicing Firm

98. At paras. 3 and 4 of the defendant’s 16 January 2024 affidavit, he asserts that the plaintiff is a credit servicing firm and is not entitled to issue or continue these proceedings, by reason of an alleged breach of the Consumer Protection (Regulation of Credit Servicing Firms) Act, 2015 (“the 2015 Act”). This assertion faces two insurmountable difficulties. First, the section of the 2015 Act upon which the defendant seeks to rely has been repealed. Second, the plaintiff brings these proceedings as the legal owner of the charge registered as a burden on the defendant's property. In the manner previously discussed, this Court has conclusive evidence of the foregoing, by means of the Folio. To quote from the judgment of Bolger J. in Egan:-

“10. The plaintiff is not, as claimed by the defendant, a third party without a horse in the race. It is the legal owner of the mortgage loan agreement and that gives it rights, including the right to seek possession where the mortgage has fallen into arrears and the other proofs have been complied with. The plaintiff seeks possession on its own behalf as the legal owner of the mortgage. It is not purporting to act on behalf of another…”

99. Furthermore, in Start Mortgages DAC v. Kavanagh [2023] IEHC 37, (“Kavanagh”) Mr. Justice Simons dealt with an application in which the defendant sought “… a series of declarations, the broad gist of which is to the effect that Start Mortgages DAC was acting as a credit servicer and, as such, had no lawful right to sue in its own name” (see para. 19 of the judgment in Kavanagh). Simons J. refused the relief sought and the argument canvassed by the defendant in these proceedings simply cannot found a credible defence.

No debt

100. In seeking to oppose the plaintiff, the defendant submits that the plaintiff has provided “… no evidence of any alleged debt due and owing to Mars Capital Finance Ireland DAC and no evidence of any alleged – transfer to the plaintiff” (para. 5 of his 16 January 2024 affidavit). With respect, the foregoing is no more than a ‘bald’ assertion which is entirely undermined by overwhelming and conclusive evidence to the contrary (recalling, of course, that the plaintiff is the registered owner of the charge created by the defendant over the property as security for his indebtedness).

101. Similar comments apply in relation to the oral submissions made by the defendant during the hearing wherein he sought to argue that the loan to him and the indebtedness secured by way of the mortgage “do not exist”. Again, these are assertions made ‘in the teeth’ of conclusive evidence to the contrary, including, acts by the defendant which he has never disavowed nor could he, credibly. In short, no credible defence is disclosed.

Mars v. Temple

102. The defendant’s purported reliance on the decision in Mars v. Temple [2023] IEHC 94 cannot avail him. Why? Because the facts are utterly different. In Temple, the Court did not have sight of definitions which were contained in the mortgage sale agreement. By contrast, Mr. Hogan exhibited the Mortgage Sale Agreement in the present case and the definitions are clear to see.

Mars v. Walsh

103. The self-same issue was ‘at play’ in Mars v. Walsh [2023] IEHC 633. In short, the issue which arose in both of the foregoing authorities simply does not arise in this application and, therefore, cannot provide the basis for any credible defence.

Start v. Ramseyer

104. By the same token, the factual position in Start Mortgages DAC v. Ramseyer [2024] IEHC

329 was entirely different. The plaintiff in that case exhibited heavily-redacted deeds of assignment, with many of the operative clauses redacted. In those very particular circumstances, Mr. Justice Simons found that it was not possible to determine whether the plaintiff had taken a valid transfer of the debt which had originally been advanced by Bank of Scotland. Against that backdrop, the learned judge remitted the matter to plenary hearing. However, the foregoing is certainly not the factual position in the present application, where the unredacted terms of the relevant instruments make ‘crystal clear’ that the defendant’s loan and the security which he gave over his property were the subject of a valid and absolute transfer to the plaintiff, reflected in the registration of the plaintiff as owner of the charge at Part 3 of the Folio.

105. In short, there are no redactions in any deed exhibited by the plaintiff which raise any questions whatsoever touching on the validity of the transfer to the plaintiff. I say the foregoing without prejudice to the analysis set out earlier in this judgment regarding the conclusiveness of the evidence that the plaintiff is owner of the charge in question.

106. In what can only be described as a ‘kitchen sink’ attempt to delay judgment, the defendant also states the following, at para. 3 of his written legal submissions:

“… the evidence before the court refers to numerous complex issues of inception of debt, drawdown of any monies, the transfer of any alleged debt and complex issues of entities registering as owner of alleged debt that they do not own and/or do not have the required documentation to prove… The plaintiff proceedings have fundamental flaws…”

107. Once more, these are submissions devoid of any basis in fact, or law. On the contrary, each and every submission is undermined by conclusive evidence to the contrary.

In conclusion

108. Returning to the questions posed earlier in this judgment:

(1) Are the relevant monies secured in this case e.g. by way of mortgage? The answer is yes, without any doubt;

(2) Has there been default, resulting in the secured monies having become due? Again, yes, without doubt; and

(3) Is the application made bona fide with a view to realising the security? Once more, the answer is yes.

109. As to the fourth question, namely, whether the defendant has established a credible defence, the answer is a resounding no.

110. In an attempt to oppose the plaintiff's application, the defendant has proffered nothing more than a series of ‘bald’ assertions which are fatally undermined by the evidence (as well as a wholly inappropriate assertions of fraud or wrongdoing by the plaintiff, which should never have been made).

111. For the reasons set out in this decision, it is appropriate to grant the relief sought by the plaintiff.

112. In circumstances where the defendant has no entitlement to possession of the property and has made no payment for in excess of 14 years, he must make immediate arrangements to vacate the property.

113. Due to the defendant’s failure to hand up possession of the property when it was called for, compounded by his decision to oppose a claim to which he never had a credible defence, a significant amount of time has elapsed and the plaintiff has incurred legal costs - to say nothing of the demands made on finite court resources. Given that the plaintiff has been entirely successful in this application for possession of the property, they have a presumptive entitlement to an order for costs. Far from identifying any factor which would justify a departure from the foregoing ‘normal rule’ (i.e. that ‘costs’ should ‘follow the event’), the conduct of the defendant (who chose to raise utterly baseless allegations of fraud) must be deprecated

114. I propose listing the matter on Friday 5 December, at 10:20 am, for the purpose of making final orders. In the event of either side wishing to furnish short written submission on the question of costs, same should be provided no later than 4pm on Wednesday 3 December 2025.