High Court allows appeal for summary possession order against defendants following successful proof of loan assignment.

[2025] IEHC 684

THE HIGH COURT

[2023 243 CA]

BETWEEN:

START MORTGAGES DAC AND

MARS CAPITAL FINANCE IRELAND DAC

PLAINTIFFS

AND

THOMAS CURTIS AND SARAH GRIFFIN CURTIS

DEFENDANTS

JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 3rd day of December, 2025

INTRODUCTION

1. This judgment concerns an appeal by the plaintiffs / appellants from a decision of the Circuit Court in which orders were made refusing a summary application for possession pursuant to section 62(7) of the Registration of Title Act 1964, as amended (the 1964 Act), and remitting the matter for plenary hearing.

2. The original lender and holder of the relevant charge was Permanent TSB plc. The first plaintiff, Start Mortgages, claimed that it had the benefit of an assignment from Permanent TSB of that entity’s interests in the underlying loans and securities. As such, it was substituted as plaintiff by order of the Circuit Court. The second plaintiff, Mars Capital, claims to have been the beneficiary of a similar assignment after the summary application was disposed of by the Circuit Court. As the transfer predated the decision of the Court of Appeal in Pepper Finance Corporation (Ireland) DAC v O’Reilly [2025] IECA 140, it was joined as a coplaintiff. Start Mortgages no longer has any interest in the proceedings, and the appeal was prosecuted by and for the benefit of Mars Capital.

3. The defendants approached the appeal by emphasising what they saw as failures on the part of the plaintiffs in proving their entitlement to the summary relief that had been sought. A feature of the case was that the defendants did not seek to contradict or challenge many aspects of the matters adduced in evidence by the plaintiff.

4. For the reasons set out in this judgment, I have concluded that the plaintiffs are entitled to the relief sought. Accordingly, the appeal will be allowed, and the plaintiffs are entitled to orders sought under section 62(7) of the 1964 Act. The reasons for this decision are rooted in a consideration of the evidence that was adduced and the application of very well-established principles. I make that observation because in addition to what could be described as the usual well-established bases for seeking relief pursuant to section 62(7) of the 1964 Act, the plaintiffs made an argument based on what they submitted was the effect of section 64 of the 1964 Act. That argument was novel, and, if accepted, carries the potential for a re-evaluation of the approach applied to this type of application where a party claims an entitlement to relief in the context of a prior assignment from the original lender and charge holder.

5. In essence, the plaintiffs argued that, properly interpreted, the effect of section 64(4) of the 1964 Act is that it was not necessary for the assignee to show a transfer of the underlying loans, but instead all that was required was proof that the principal sum had become due under the original mortgage or charge. I have decided (a) this argument runs contrary to the established approach adopted by the High Court and Court of Appeal to applications of this nature, (b) that the appeal can be resolved satisfactorily without the need to engage with that argument, and (c) because the argument made by reference to section 64(4) of the 1964 Act is novel, before any considered decision could be given on the issue it would benefit from far more detailed argument than occurred in this case.

GENERAL PRINCIPLES

6. The general principles applicable to orders for possession concerning mortgages created before the 1 December 2009 are governed by section 62(7) of the 1964 Act, as that provision has been interpreted and applied in multiple judgments, most recently in the judgment of the Court of Appeal in Permanent TSB v. Donohoe [2025] IECA 222.

7. In Bank of Ireland v. Cody [2021] IESC 26 the Supreme Court set out that there are two core proofs required to obtain an order for possession under section 62(7): “49. The owner of a charge who seeks to obtain possession pursuant to s. 62(7) has to prove two facts:

(a) That the plaintiff is the owner of the charge;

(b) That the right to seek possession has arisen and is exercisable on the facts.”

8. The Supreme Court explained the first proof as follows: “50. The summary process is facilitated by the conclusiveness of the Register as proof that the plaintiff is the registered owner of the charge is a matter of production of the folio, and, as the Register is by reason of s. 31 of the Act of 1964 conclusive of ownership, sufficient evidence is shown by that means: see the discussion in the Court of Appeal in Tananger DAC v. Kane [2018] IECA

352. The judgment of the Court of Appeal inter alia 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 Act of 1964 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.”

9. At this point, it can be noted that there was no dispute that at the time when this matter was heard in the Circuit Court, Start Mortgages was the registered owner of the charge, while at the hearing of this appeal Mars Capital was the registered owner of the charge, and the relevant exhibited extracts from the Register confirmed conclusively that this was so. Accordingly, it is not open to the defendants to challenge that element in the plaintiffs’ proofs. In the premises, the only material issue in the appeal related to the second proof identified in Bank of Ireland v. Cody: whether the right to possession had arisen and become exercisable.

10. The issue of the effect of assignments was addressed recently by the Court of Appeal in Permanent TSB v. Donohoe. The consideration arose in the context of an argument that the assignee, Start Mortgages, was a bare trustee and another entity was the beneficial owner of mortgage assets that had been the subject of a deed of transfer. Costello P. for the Court of Appeal reiterated that it has been established that a party seeking an order for possession does not need to show that they are the beneficial owner of the underlying debt, but is entitled to rely on their legal title to the debt.

11. The Court relied in that regard on the following passage from paragraph 28 of the judgment of Binchy J. for the Court in Mars Capital Finance Ireland DAC v. Phelan [2025] IECA 117: “28. As the High Court judge found, the Deed of Transfer itself makes it plain that the assignee of the appellant’s loans is the respondent and not Panelview. The fact that the purchase monies may have been provided by another entity is, as the High Court judge found, immaterial. At the very most, it may be the case that the respondent holds the assets assigned to it under the Deed of Transfer on trust for Panelview, in which case it is the legal owner of those assets while Panelview may be the beneficial owner. Even if that is the case, however, the appropriate party for the proceedings would be the trustee, and not the beneficiary of the assets. For these reasons, I am satisfied that the Deed of Transfer, on the balance of probabilities, is effective to transfer the original plaintiff’s title in the appellant’s loans to the respondent.”

12. In the light of those observations, which were described by Costello P. as correctly stating the law, and which is binding on this court, the Court of Appeal in Permanent TSB v. Donohoe described the task of the trial court as follows: “52. In my judgment, it was incumbent on the High Court to consider the documentary evidence and to consider whether legal title to the loan, as well as the legal title of the charge, had passed from the Bank to Start Mortgages. If that was shown to have occurred, on the balance of probabilities, then that was the end of the matter …”

13. Hence, I will proceed to consider the appeal on the basis set out above.

BACKGROUND

14. At the hearing of the appeal, counsel for the defendants only sought to raise one issue: a contention that the plaintiffs had not proved their entitlement to a summary order for possession, which was based on an argument that there were flaws in the proof relating to the transfer of the underlying debt from Permanent TSB to Start Mortgages.

15. In addition to the Civil Bill for Possession that issued in the Circuit Court on 4 August 2017, the principal evidence before the court was as follows: a. An affidavit of Jacqueline O’Brien sworn on the 24 July 2017; b. An affidavit sworn by David Smith on the 11 July 2018; c. Affidavits and supplemental affidavits sworn by Eva McCarthy on the 11 June 2019, 8 October 2020, and the 12 January 2021; d. Affidavits sworn by Thomas Curtis on the 11 December 2020 and the 29 March 2023; e. Affidavits sworn by Gareth Kavanagh on the 22 February 2023 and the 19 July 2023; and f. Affidavits sworn by Grainne Dever on the 6 February 2025 and the 29 November 2025.

16. The essential claim was set out by Ms. O’Brien on behalf of the then plaintiff, Permanent TSB. Eva McCarthy, who is described as a litigation manager for Start Mortgages, addressed the transfer from Permanent TSB to Start Mortgages. The remaining evidence from the plaintiffs addressed certain matters that no longer are in issue and updated the evidence relating to the extent of the defendants’ indebtedness. Two affidavits were filed on behalf of the defendants, each sworn by the first defendant. In neither of those affidavits did the defendants take issue with the core contention that they obtained a loan from Permanent TSB which was secured by a charge on the property and that there had been significant and ongoing defaults in their repayment obligations.

17. Ms. O’Brien’s evidence was that Permanent TSB made a loan offer to the defendants by letter dated the 25 June 2008, and the offer was accepted by the defendants on the 3 July 2008. The offer was to advance €330,000 as a home loan. The main terms were set out in the letter of offer and on the plaintiff’s then prevailing terms and conditions. The loan was to be for 30 years at the then applicable interest rate of 4.9%. By way of security for the loan, the defendants executed a mortgage and charge over the property comprised in Folio 52042F in the Register of Freeholders in County Meath. The plaintiff’s charge was registered on the folio on the 5 August 2008. The terms and conditions agreed by the defendants meant that if there was default in the making of two monthly repayments the total debt would become immediately repayable, and the plaintiff would be entitled to possession to realise its security.

18. The evidence was that there were such defaults, and no repayments had been received since September 2015. The plaintiff sent payment demands for payment and then a demand for vacant possession in June 2017, prior to which the plaintiff had sought to resolve the issue in accordance with the Central Bank Code of Conduct on Mortgage Arrears. The proceedings issued on the 4 August 2017, and the defendants’ solicitors entered an appearance on the 6 October 2017.

19. Ms. O’Brien exhibited the offer letter, which was dated the 25 June 2008. This identified the defendants as Thomas Curtis and Sarah Griffin Curtis, the property address as Muff, Nobber, County Meath, and identified an account which ended with the numbers xxx9 as the account which was associated with the loan. Ms. O’Brien also exhibited the form of acceptance signed by the defendants on the 3 July 2008. The affidavit also exhibited the mortgage agreement and Permanent TSB’s then terms and conditions.

20. In addition, for the purposes of this application, Ms. O’Brien exhibited extracts from the statements for the account ending xxx9, which was identified as an account held by the defendants, and which recorded that there had been multiple defaults in payment of the amounts due by the defendants for a number of years, and that no repayments at all had been made since September 2015. In fact, as it transpired, no repayments at all were made in the period between September 2015 and the date of the hearing of the appeal.

21. The relevant extracts from the folio were exhibited at various points in the proceedings and demonstrate that at the material times Permanent TSB, Start Mortgages, and Mars Capital respectively were registered as owners of the charge. In those premises and as set out above, there is proof that Mars Capital is the registered owner of the charge. However, the register does not conclusively determine that Start Mortgages succeeded to Permanent TSB’s debt. In order to address that contention, it is necessary to consider the documentary evidence exhibited to the various affidavits.

22. Before doing so, and in response to an argument made on behalf of the defendants, I should note that I am satisfied on the balance of probabilities that the charge registered over the property clearly related to the property owned by the defendants and which was provided as security for the loans in issue in these proceedings. Insofar as the defendants suggested that there was a default in this element of proof, I consider that the argument manifestly was unfounded and that it is clear from the papers that there is no ambiguity. Moreover, the defendants never went so far as to state in evidence that the position described by Ms. O’Brien was incorrect; the only issue was a technical point made in argument about the nature of the proofs.

THE TRANSFER FROM PERMANENT TSB TO START MORTGAGES

23. There was no dispute, and it is in any event clear, that by virtue of the terms and conditions which formed part of the agreement between Permanent TSB and the defendants, Permanent TSB was entitled without the consent of the defendants to transfer or assign the benefit of the mortgage to another party.

24. The transfer from Permanent TSB to Start Mortgages was addressed by Ms. McCarthy. I will first address the matters that she has set out in evidence, and in so doing consider the points raised by the defendants.

25. Ms. McCarthy averred that the as a result of a sale of the Permanent TSB loan book to Start Mortgages, the underlying facility and related security which are the subject of these proceedings together with the causes of action were assigned to Start Mortgages.

26. The evidence showed that Permanent TSB and Start Mortgages executed a Deed of Transfer dated the 1 February 2019. By clause 2.1 of the Deed: “ … the Seller as legal owner free from Encumbrance and as the registered owner or, as applicable, as the party entitled to be registered as owner, hereby grants, conveys, assigns, confirms, transfers and assures unto the Buyer absolutely, subject to the subsisting rights of redemption of the Borrowers and any Obligor and to the extent capable of assignment, as legal owner, all its right, title, interest, estate, benefit and entitlement (past, present and future) in an under the Mortgage Assets, each Security, Underlying Loans, and each of the Finance Documents and the Seller’s right, title and interest as legal owner in and to the Ancillary Rights and Claims”.

27. By clause 1.16, “Underlying Loan Agreements”, for the purposes of this case, means the loan documents, facility letters and ancillary documents relating to each Underlying Loan. By clause 1.15, “Underlying Loans” is agreed to mean: “the loans and other credit facilities advanced to the Borrowers under the Underlying Loan Agreements together with the accounts in respect of same details of which are specifically set out in Schedule 1 of this Deed and which are transferred pursuant to this Deed…”

28. Schedule 1 is a schedule that identifies, inter alia, the various securities and loans that are transferred by the Deed. In relation to the defendants, this includes an identification of the mortgage (which is at page 1042 of the schedule). The mortgage is identified by reference to an account number, which ends with the numbers xxx9. It also identifies the date of the charge and the property address. The only potential issue in relation to that aspect of the transfer was that the second defendant was identified as “Sandra” and not “Sarah” Curtis. I do not consider that this error is sufficient to call the transfer into question. Aside from the fact that I am satisfied that the refence to the security transferred clearly is a reference to the charge that is the subject of these proceedings, Start Mortgage was registered as the owner of the charge and that is conclusive.

29. The next extract from the Schedule addresses the loan facilities that were transferred. This identifies the account ending xxx9 and links it to the facility letter dated the 25 June 2008 addressed to Sarah Griffin Curtis and Thomas Curtis. By reference to the description of the exhibits to Ms. O’Brien’s affidavit above, I am satisfied that the loan and security identified in Schedule 1 are the same as the loan and security exhibited by Ms. O’Brien.

30. Next, Ms. McCarthy exhibited what are commonly described as “hello” and “goodbye” letters sent by Permanent TSB and Start Mortgages to each of the defendants. Those letters clearly identify the mortgage loan account (ending xxx9); and they inform the defendants that an assignment has occurred and that payments should now be made to Start Mortgages. Start Mortgages also allocated a new account number to the mortgage loan account.

31. In the premises, it seems clear that the transfer meets the criteria for a valid assignment as set out in section 28(6) of the Supreme Court of Judicature (Ireland) Act 1877.

32. The defendants argued first that there was uncertainty as to whether the property identified as security for the loan in the letter of loan offer was the property identified in the mortgage, or, put another way, that there was not sufficient evidence that the mortgage was linked to the loan. This is simply not credible.

33. In the first instance, Ms. O’Brien made clear that from the perspective of Permanent TSB the letter of loan offer and the mortgage / charge executed by the defendants were part of one and the same transaction. The logic of the defendants’ position was that it was possible that there were two separate transactions: a loan offer and charge relating to a property, and a separate charge connected to a separate loan. However, the defendants gave no evidence to suggest that they entered two separate arrangements with Permanent TSB, and they did not dispute Ms. O’Brien’s description of the overall transaction.

34. In the circumstances and having regard to the documentary evidence, I am fully satisfied on the balance of probabilities from Ms. O’Brien’s evidence and the documents that were exhibited that the loan offer, signed acceptance and mortgage / charge all form part of the same transaction.

35. The second argument was that the Deed of Transfer was preceded by and referred to a mortgage sale agreement, and the mortgage sale agreement was not exhibited. The argument was in the absence of the mortgage sale agreement there was a possibility that something in the mortgage sale agreement affected the transfer of the interests in the defendants’ loan and charge. I consider that this argument is unfounded in the circumstances of this case. In a given case, it may well be that a deed of transfer cannot properly be understood without sight of a prior agreement. That is not the case in this appeal. The operative part of the Deed of Transfer is unredacted, and the only redactions relate to the schedules where, quite properly, information relating to other borrowers was redacted. The Deed is clear on its face what has been agreed: an absolute assignment by Permanent TSB, as legal owner, of its interests in the scheduled loans and securities, along with the associated claims and causes of action. There is no basis for considering that the mortgage sale agreement altered or impacted on the validity and extent of those transfers.

36. As part of the above argument the defendants sought to rely on the judgment of Simons

J. in Mars Capital Finance Ireland DAC v. Temple [2023] IEHC 94. However, that case clearly is distinguishable on the basis that the refusal to grant a summary possession order in that case was based on the factual and evidential issues which arose in that case and which are not replicated in this case. In Mars v. Temple the judgment sets out that there was nothing in the redacted deed of transfer – which related to a different transaction to that in this case – to connect the operative part of the deed to the information in the schedule exhibited. That is not the case here, where there were no redactions to the operative part of the Deed of Transfer, and where the operative part clearly stated that there was to be an absolute assignment of the loans and securities set out in Schedule 1. Accordingly, I am not satisfied that the judgment of Simons J., which turned on its own facts, is material to the resolution of this appeal.

37. The third argument related to the reference to “Sandra” Griffin Curtis in the part of Schedule 1 relating to the security/property interests that were transferred. I have addressed this above. Obviously, the use of the name “Sandra” was incorrect. However, I am satisfied on the balance of probabilities that the other information in this part of Schedule 1 clearly identifies that the charge that was transferred was the charge executed by the defendants and which is the subject of these proceedings, and accordingly I am not satisfied that the error in question is in any sense material or calls into question the nature or efficacy of the transfer.

CONCLUSION

38. For all the reasons set out above, I am satisfied that the plaintiffs have established the proofs described by the Supreme Court in Bank of Ireland v. Cody as necessary to prove an entitlement to a summary order for possession. That being so, the appeal will be allowed. As this judgment is being delivered electronically, my provisional view is that, having fully succeeded, the plaintiffs should be entitled to an order for the costs of the appeal and the costs of the proceedings in the Circuit Court to be adjudicated in default of agreement. I will list the matter before me at 10.30am on Thursday, the 11 December 2025 for arguments on the final form of the orders to be made and to allow the parties to address any argument in relation to the question of whether there should be a stay on the substantive orders that will be granted.