High Court dismisses appeal against summary possession order for mortgage default, upholding plaintiff's entitlement to possession.

[2025] IEHC 692

THE HIGH COURT

[2021 126 CA]

BETWEEN:

PEPPER FINANCE CORPORATION (IRELAND) DAC

PLAINTIFF / RESPONDENT

AND

SUZANNE HAYES AND WILLIAM HAYES

DEFENDANTS / APPELLANTS

JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 4th day of December, 2025

INTRODUCTION

1. This judgment concerns an appeal by the appellants from a decision and order of the Circuit Court made on the 26 July 2021 granting the plaintiff (Pepper Finance) a summary application for possession pursuant to section 62(7) of the Registration of Title Act 1964, as amended (the 1964 Act). The property concerned is known as Mountpoplar, Kildalkey, Co. Meath; and the property is registered on Folio 51081F County Meath (the property).

2. The appellants represented themselves throughout the proceedings before this court. They sought to argue a range of reasons why the application for a summary possession order should be refused and the matter remitted to plenary hearing. While the appellants conducted themselves with courtesy and candour, it was perhaps inevitable that the manner in which certain of their arguments were formulated and presented lacked some of the precision and awareness of legal concepts and processes that ordinarily a court expects from qualified lawyers.

3. In particular, as required by the relevant legislation the appeal to this court was a de novo hearing constrained by the evidence adduced in the Circuit Court. Fresh evidence cannot be admitted without the permission of the court. Despite that, the appellants sought to introduce new evidence on a number of occasions without having obtained court permission. On balance and with one exception, I decided to permit that evidence. There are two reasons for that

decision.

4. First, in reality the matters raised for the most part related to legal arguments that already were live in the proceedings and related to matters that could be addressed and determined by reference to documents and legal propositions. Second, the court was conscious that if matters could be determined by reference to documents and legal arguments it was preferable to consider those matters as part of the summary application rather than putting the parties to the expense and delay that follows from remitting a matter to plenary hearing.

5. The history of the case is that the matter was listed for hearing on the 31 October 2024. In the course of that first hearing, the appellants had sought an adjournment on the basis that judgment was awaited from the High Court in a case that they contended was on all fours with their case. I refused the adjournment on the basis that I was not satisfied that the cases as described were indeed on all fours. Shortly after the hearing, the judgment in question, Pepper Finance Corporation (Ireland) DAC v. Moynihan [2024] IEHC 625 (Simons J.) was delivered on the 7 November 2024. In the premises, I heard from the parties and agreed that further arguments could be made in relation to the potential impact of that judgment. As the Moynihan case was concerned primarily with the question of the effect of redactions to certain securitisation documents, I also permitted Pepper Finance to file a further affidavit addressing the question of the redactions to the papers in this case, and afforded the appellants an opportunity to file replies. I made that decision on the basis that if a less redacted version of the documents were before the court, it may have allowed for a more efficient consideration of the overall issues. Unfortunately, it took quite some time for Pepper Finance to produce their affidavit and then to have the matter relisted for the resumed hearing.

6. For the reasons set out in this judgment, I have decided that the appeal will be refused and the plaintiff is entitled to the order for possession.

BACKGROUND AND EVIDENCE

7. The Circuit Court proceedings were commenced by a Civil Bill for Possession dated the 22 August 2014, in which an order for possession of the property pursuant to section 62(7) of the 1964 Act was sought. In addressing the evidence adduced over the course of these proceedings I will focus on the affidavits that related to the substantive issues and not the affidavits that updated the issue of arrears or certain tangential procedural matters.

8. The grounding affidavit was sworn on the 25 July 2014 by Caroline Loftus, an Operations Manager with Pepper Finance. Ms. Loftus explained the background to the matters in issue and exhibited a range of documents. From her affidavit and exhibits the following was the case.

9. By a letter of loan offer dated the 9 January 2008 GE Capital Woodchester Home Loans Ltd (GE Home Loans) offered a 35-year loan in the amount of €392,000 to the appellants at a variable interest rate. The letter of loan offer contained terms and conditions, and the acceptance form at the conclusion of the letter was signed by each of the appellants. Ms. Loftus went on to explain that the principal sum was advanced to the appellants on the 23 January 2008. As security for the lending, the appellants executed a mortgage / charge over the property on the 25 January 2008. The charge was registered on the folio on the 23 September 2008, and the relevant extract from the folio was exhibited.

10. It can be noted that the terms and conditions in the letter of loan offer included express language to the effect that the loan and security and any associated rights and interest were to be “freely transferable by the Lender (i) whether by transfer, conveyance, assignment, mortgage or charge…; or (ii) whether as part of a loan transfer and securitisation scheme or otherwise, on such terms as the Lender may think fit.”

11. The charge document made clear that (a) any money remaining unpaid by the appellants would immediately become payable on demand on the occurrence of any event of default (as defined in the charge), and one of the events of default was a default in making payments, and the lender’s power to enter into possession became exercisable on such an event of default; and

(b) the lender without the consent of the appellants was entitled to securitise the charge, and enter into a variety of transactions including an assignment of the legal or beneficial interest in the charge. In that regard, the mortgage charge included extensive express language addressing the various forms of securitisation that the parties agreed could be undertaken.

12. As discussed in more detail below, the case occurs against a backdrop where the High Court and the Court of Appeal have made clear that securitisation transactions are largely immaterial to a summary claim for possession pursuant to section 62(7) of the 1964 Act so long as there is proper proof that the plaintiff holds the legal title to the loan and is the registered owner of the charge. Accordingly, insofar as some detail will be given below of the various evidential contentions regarding the transactions that occurred concerning the GE Home Loans residential mortgage portfolio this is by way of background information to assist in understanding the appellants’ legal arguments.

13. On the 11 October 2012, GE Home Loans changed its name to Pepper Finance Corporation (Ireland) Limited, and the relevant ‘Certificate of Incorporation on Change of Name’ of the same date made for the Registrar of Companies was exhibited.

14. By reference to exhibited statements of account, Ms. Loftus stated that following defaults in paying the monthly instalments and following a variety of attempts to address the indebtedness pursuant inter alia to the Central Bank Code of Conduct on Mortgage Arrears, formal demands for repayment were sent by letters dated the 14 May 2014. Demands for vacant possession of the property were sent on the 3 June 2014.

15. Following service of the Civil Bill for Possession, an appearance was entered on behalf of the defendants, and then in January 2019 the solicitors applied to come off record. Nevertheless, it is apparent from the papers that those solicitors ceased acting at an earlier point in the proceedings. There is uncertainty about precisely when the solicitors ceased acting in a practical sense (as opposed to when they came off record), but it can be inferred from the fact that, from the outset, the second appellant Mr. Hayes, began filing affidavits that have every appearance of having been prepared without formal legal assistance.

16. By order dated the 23 January 2017, Pepper Finance Corporation (Ireland) Limited was substituted as plaintiff.

17. In an affidavit dated the 20 June 2017, Ms. Loftus updated the arrears information relating to the account, and noted that, on the 29 October 2015, Pepper Finance Corporation (Ireland) Limited had converted to a DAC, and she exhibited the relevant certificate from the Registrar of Companies.

18. Mr. Hayes swore his first affidavit on the 27 November 2017. The sources of knowledge for the affidavit were unclear, but the essence of what was contended was that the GE Home Loans residential mortgage portfolio was sold on the 28 September 2012. As a result, Mr. Hayes argued, the mortgage portfolio was owned by “Windmill Funding Limited” and Pepper Finance was the mortgage portfolio manager. In a second affidavit sworn on the 18 May 2018, Mr. Hayes made four main contentions: (a) the plaintiff was not registered as the owner of the charge on the folio; (b) the plaintiff had no legal entitlement to be registered as the owner of the charge on the folio; (c) the appellants did not accept that there was any enforceable contract between them and Pepper Finance; and (d) the claim should be the subject to an “own motion” assessment by the court, in line with Council Directive 93/13/EEC.

19. By way of support for those contentions, Mr. Hayes exhibited (a) an extract from the folio that showed that GE Home Loans remained the registered owner of the charge; (b) a statutory declaration made on the 28 September 2012 by a director of GE Home Loans for the purposes of section 60 of the Companies Act 1963, as amended; and (c) an anonymised determination of the Tax Appeal Commission (TAC) from November 2017, that was said to relate to the tax treatment of the transactions involving GE Home Loans and Pepper Finance and various other associated entities.

20. The next substantive affidavit was sworn by Ms. Loftus on the 28 June 2018, which replied to the two affidavits sworn by Mr. Hayes. Ms. Loftus averred that the legal title to the loan and security remained vested in the plaintiff. She referred to the various certificate of changes of names and notes that, by reference to the provisions of sections 25, 30 and 53 of the Companies Act 2014, these conclusively establish that GE Home Loans is the same legal entity as the plaintiff.

21. With respect to the underlying securitisation transaction, Ms. Loftus stated that on the

28 September 2012, Pepper Netherlands Cooperative U.A. purchased the entire share capital of the plaintiff. On the same date, the loan facility and mortgage were securitised by the sale by the plaintiff to Windmill Funding Limited of the beneficial interest in the loan and security. As part of that transaction the plaintiff retained the legal title to the loan and security as well as the exclusive right to exercise the powers thereunder. In that regard reference was made to the various provisions in the loan offer terms and conditions and the charge that were said to confer the plaintiff with the entitlement to enter into such transactions. Ms. Loftus disputed that the change of name in and of itself afforded any basis to challenge the entitlement of the plaintiff to seek the relief in the Civil Bill. In relation to the TAC determination, this was asserted to be irrelevant to the matters before the court, and in any event that the court was not bound by a determination of the TAC. Finally, Ms. Loftus contended that the contractual provisions relied on by the plaintiff were core terms or the main subject of the loan contract, and disputed that the provisions were unfair or liable to be subjected an “own motion” consideration by the court under the relevant EU law provisions.

22. Mr. Hayes swore a further affidavit on the 29 August 2018. At that point he expressly averred that the appellants were unrepresented and stated that he had been a litigant in person since the commencement of the proceedings. Mr. Hayes disputed various elements in Ms. Loftus’ affidavit, referred to the securitisation transaction and elements in the TAC determination, and asserted by reference to that transaction that the plaintiff had not established the extent of any ownership that they claim.

23. The next substantive step in the proceedings occurred when the appellants sought an order remitting the claim to plenary hearing, which was grounded on an affidavit sworn by Mr. Hayes on the 7 February 2019 asserting that the summary process breached his rights under Article 6 of the ECHR and that the plaintiff had not proved an entitlement to summary relief. It appears that the appellants’ motion was refused and the order was appealed to the High Court. That appeal was struck out by Murphy J. on the 4 November 2019.

24. Mr. Hayes swore a further affidavit on the 23 April 2019 in which he sought to distinguish the position of the appellants from the defendant in a separate case, which had been referred to by the parties earlier in the proceedings. In effect, this was a legal submission.

25. The plaintiff’s application came on for hearing before His Honour Judge Quinn in the Circuit Court on the 26 July 2021. The Order notes that the appellants did not attend, and the orders sought were granted with a stay on execution for two years.

THE APPEAL PROCEEDINGS

26. The appellants filed a notice of appeal on the 3 August 2021. With the permission of the court, the plaintiff filed a further affidavit sworn by Ms. Loftus on the 5 December 2023. Again, Ms. Loftus asserted that the plaintiff was the legal title holder of the loan and mortgage which was the subject matter of the proceedings. Her affidavit reiterated that the plaintiff was one and the same entity as GE Home Loans and referred to the previously exhibited name change certificates. Ms. Loftus addressed the securitisation issue in more detail. In that regard a mortgage sale agreement (MSA) dated the 28 September 2012 was exhibited, albeit heavily redacted. It was explained that commercial sensitive data and data relating to other borrowers had been redacted.

27. The parties to the MSA were GE Home Loans as seller, Windmill Funding Ltd (Windmill) as issuer, and Pepper Netherlands Holding Cooperative U.A., and TMF Trustee Ltd, as note trustee. Under the terms of the MSA, GE Home Loans agreed to sell absolutely and Windmill agreed to purchase the legal and beneficial interest in the Mortgage Loans and their Related Security. GE Home Loans then agreed that following the purchase and until perfection in accordance with clause 5 of the MSA it would hold the legal title to the mortgage loans and related security as bare trustee for Windmill. In turn, clause 5 provided that perfection of the sale was to occur following a demand by Windmill or TMF Trustee, and the demand could be made in any circumstances including but not limited to the occurrence of certain specified events. Clause 5.2 provided inter alia that any monies recovered by GE Home Loans was to be held on trust for Windmill.

28. Notably, the MSA was very heavily redacted, so that while it was possible to understand the general purpose and effect of the transaction it was not possible to rule out that potentially relevant provisions had not been disclosed.

29. Ms. Loftus then addressed a mortgage sale deed (MSD) dated the 1 April 2021. She stated that the effect of that transfer was that the beneficial interest in inter alia, the appellants’ loan and charge was to be sold by Windmill to an entity called Balbec Loan IE IV Limited (Balbec). It was explained that Balbec had later changed its name to Lagado Assets IE IV Limited (Lagado). The exhibited MSD again was heavily redacted, but it appears clear that the stated premise for the transaction was that it involved dealings with the beneficial interest in the mortgage assets and that Pepper Finance retained the legal title to the portfolio and was to continue as the legal title holder and regulated servicer of the portfolio after the deal closed. The schedule to the MSD included a reference to the mortgage loan account relating to the appellants, and to their property.

30. Ms. Loftus asserted that the plaintiff remained owner of the legal title to the charge the subject of the proceedings and the relevant updated extract from the folio was exhibited, which continued to show that, since September 2008, GE Home Loans had been registered as the owner of the charge. Ms. Loftus also exhibited up to date account information which showed that by the end of November 2023 the arrears had risen to over €347,000.

31. Mr. Hayes swore a further affidavit on the 17 January 2024. Mr. Hayes relied on a report in an online journal to assert that the securitisation transaction meant that Pepper Finance did not own his loan. He stated “8. I say as stated Pepper do not own my loan: whilst securitisation is nothing illegal and standard banking practise, this article backs up the nature of the true sale from GE to Windmill and not from Pepper to Windmill as claimed by the Plaintiff.”

32. Mr. Hayes swore a further affidavit on the 5 April 2024. In that affidavit he addressed what he argued were unfair terms in the contract; and he identified a number of elements in the contract, many of which, it must be noted, were not invoked in or relevant to the plaintiff’s claims.

THE FIRST HEARING IN THE HIGH COURT

33. As noted above, at the commencement of the first hearing the appellants sought an adjournment on the basis of an argument that there was a judgment pending in a case that was directly relevant to their claim. That contention was disputed by the plaintiff, and given the history of the proceedings and the fact that it was not at all clear at that point whether the pending judgment in fact would be material to the determination of these proceedings, the court proceeded with the hearing.

34. The plaintiff’s claim was relatively straightforward and proceeded on the basis that the plaintiff was in a position to prove the matters set out in Bank of Ireland v Cody [2021] IESC

26. With regard to the matters that had been raised by the appellants in Mr. Hayes’ various affidavits, the plaintiff argued:

(a) As a matter of law the change of name did not alter the position that GE Home Loans was one and the same entity as Pepper Finance.

(b) GE Home Loans was the registered owner of the charge, and the register was conclusive in that regard.

(c) The securitisation transactions had only affected the beneficial interests in the loan and charge, Pepper Finance continued to hold the legal tittle and therefore was entitled to seek to enforce the loan and seek relief.

(d) The TAC decision was not relevant, where the issue before the court was whether the plaintiff held the legal title to the loan and charge.

(e) The terms in the loan and charge agreements that the plaintiff was relying on constituted the main subject matter of the contract and as such no issue arose under the Unfair Contract Terms Directive (93/13/EEC).

(f) There did not appear to be any dispute that the power to seek possession under the relevant terms and conditions had arisen and was exercisable.

35. In essence, the appellants sought to agitate the arguments articulated in their various affidavits with their primary emphasis being on the contention that the plaintiff as bare trustee could not take steps to enforce the security.

PEPPER V. MOYNIHAN [2024] IEHC 625

36. This judgment was delivered by Simons J. on the 7 November 2024, approximately a week after the first hearing. The judgment concerned an appeal from a summary order for possession made in the Circuit Court. The court found that the plaintiff had not made out the necessary proofs and that the matter would have to be remitted to plenary hearing. The court found that there was no debatable issue regarding ownership of the charge: GE Home Loans was registered as the owner of the charge, and on the evidence adduced in that application the court was satisfied that Pepper Finance and GE Home Loans were one and the same entity.

37. In relation to ownership of the underlying debt, the court noted, again by reference to the evidence adduced in that application, that the beneficial interest in the loan in that case had been transferred. The court was concerned that the evidence did not establish that Pepper Finance retained legal ownership of the debt. Having regard to the very extensive redactions to the mortgage sale agreement exhibited in that application, the court considered that it was not possible to interpret the deed or determine its precise legal effect. This meant, for example, that it was not possible to identify the events that would trigger an obligation on Pepper Finance to transfer the legal title to the debt to the purchaser or its nominee. In those premises, because of the extent of the redactions the court was not satisfied to grant a summary order, and the matter was remitted for plenary hearing.

THE SECOND HEARING

38. As the decision in Pepper Finance v. Moynihan appeared to raise issues which this court may have been required to treat as binding, I afforded the parties an opportunity to address the implications of that judgment on this application. As part of that process the plaintiff requested an opportunity to file a further affidavit to address the issue of the redactions in the securitisation documents on the basis that by taking this course it may be possible to avoid the necessity of requiring a plenary hearing. The court agreed to that suggestion and afforded the appellants an opportunity to make whatever response to the Pepper Finance affidavit as may be necessary.

39. As noted above, it would be fair to say that (a) the production of the Pepper Finance affidavit took much longer than expected and (b) the appellants sought to use their opportunity to reply to agitate more issues than the simple issue of the potential effect of the MSA on the question of the ownership of the underlying loan and whether the power to seek possession had arisen and become exercisable.

40. The response from the plaintiff was in the form of an affidavit sworn on the 19 May 2025 by Justin Nevin, a Senior Operations Manager for Pepper Finance. Mr. Nevin, began by stating that he had been advised, correctly in my view, that the Moynihan judgment emphasised the need for sufficient disclosure of operative clauses in a mortgage sale deed to establish legal title to the underlying debt or charge.

41. Mr. Nevin exhibited a fresh version of the securitisation documents which were in a less heavily redacted form than those exhibited earlier in these proceedings and in the Moynihan application. Importantly, Mr. Nevin addressed in some detail the nature of and reasons for the remaining redactions. These were stated to have been made on foot of legal advice, and they were summarised as follows at paragraph 8 of his affidavit: “…Only commercially sensitive information, irrelevant / non-operative clauses, and information relating to borrowers and/or third parties which does not relate to the Defendants herein had been redacted from the documents. …”

42. Helpfully, Mr. Nevin then went on to identify the specific operative clauses in the various agreements where redactions had been effected, and he set out a short clause by clause explanation for each instance of redaction.

43. Mr. Nevin explained that as part of the securitisation Pepper Finance was to continue to hold the legal title to mortgage loans and securities transferred on trust for Windmill until the date of perfection of the security. He made unequivocal averments that the circumstances that would give rise to perfection have not arisen, and that the plaintiff continued to hold the legal title to the charge and underlying debt that are the subject of these proceedings.

44. Mr. Hayes replied with an affidavit sworn on the 19 June 2025. Mr. Hayes appeared to accept that a name change from GE Home Loans to Pepper Finance would not raise an issue, but he asserted that what in fact occurred was that there was a material change within the GE group – which referred back to the fact that the shareholding in GE Home Loans had been acquired – and that this was something that required his consent. Without unduly summarising his affidavit, Mr. Hayes appeared to be making the point that neither he or the court had “the full story” and that his contract was such that his account was to remain within the GE group.

45. Mr. Hayes then swore a further affidavit on the 3 July 2025, in which he addressed Mr. Nevin’s affidavit in more detail. In addition to querying whether the mortgage sale documents were properly signed or sealed (which I consider to be unfounded), Mr. Hayes made the point that there had been changes since the proceedings commenced with the result that the original averments by Ms. Loftus – that there had only been a name change and that Pepper Finance remained the originator and owner of the loan and charge – were no longer accurate. Mr. Hayes introduced a new issue to the effect that he had a contractual entitlement that the loan was to remain within the GE group and that there has been a breach of that right. He stated that if GE sold the portfolio he should have been informed and his consent obtained.

46. At the second hearing, the appellants sought to introduce an affidavit sworn by Anne Pounds on the 1 July 2025. Ms. Pounds described herself as a management consultant who had sought to assist the appellants in understanding the portfolio sale matters in light of her experience as a person experienced in banking and as a member of the Chartered Institute of Securities and Investments and other professional bodies. The admission of Ms. Pounds affidavit was objected to by the plaintiff on the basis that it had been furnished very late in the day, there had been no prior permission to introduce expert evidence, and the focus of the affidavit was on the transactions affecting the GE group and the role of Pepper Finance as a credit servicer from a regulatory perspective. I agreed that the affidavit should not be admitted. Aside from the lack of permission and the serious procedural unfairness of potentially requiring the plaintiff to have to address expert evidence on very short notice, I was satisfied that the matters addressed by Ms. Pounds were not relevant to the core matters in issue in this application.

47. I should also note that at various stages in the proceedings up to and including shortly prior to the second hearing Mr. Hayes also provided a series of written legal submissions. To a large extent these reiterated the points agitated in his affidavits. I will endeavour to address the core points that he made in the course of addressing the legal principles that arise for consideration, but it can be observed that in my view many of the issues that he raised simply were not material to the determination of the application in the light of established authorities, particularly as set out recently by the Court of Appeal.

GENERAL PRINCIPLES

48. For the purposes of this judgment, I will outline what I consider to be the relevant principles to the general issues raised by the appellants, and, in the course of so doing, I will address their specific arguments.

The general proofs for a summary order for possession

49. The general principles applicable to orders for possession concerning mortgages created before 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.

50. 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 properly exercisable on the facts.”

51. 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.”

52. The registered owner of the charge in this case is GE Home Loans. The question therefore is whether there is any basis for considering that Pepper Finance should not be treated as one and the same entity as GE Home Loans. In my view, it is entirely clear that GE Home Loans and Pepper Finance are one and the same entity. This is set out in evidence by Ms. Loftus, who exhibited the various name changes that have certified by the Registrar of Companies.

53. The difficulty with the approach adopted by the appellants to this issue is twofold. First, there is an argument that in some sense the change in ownership of GE Home Loans in a legal sense alters the legal personality of that entity. This is not correct. GE Home Loans has a legal personality facilitated by Irish company law. One of the effects of the separate legal personality of companies is that, barring certain exceptions that are not material to this case, the company is treated as separately from its shareholders. The reality is that there is always some possibility of a change in the identities of the shareholders in a company. This is most obviously the case in publicly traded companies where today’s shareholders regularly will be composed differently to yesterday’s. Even in a closely held private company, there is always a prospect that the composition of the shareholders will alter. A change in the composition of shareholders or owners will not result in a change to the company as a corporate entity.

54. It can be noted that a number of the issues raised by the appellants can be treated as having been resolved by the Court of Appeal in Pepper Finance Corporation (Ireland) DAC v. Moloney [2023] IECA 161. That case concerned an appeal in an application for leave to execute a judgment, where it seems clear that many of the arguments and issues raised in this case were also raised. Notwithstanding that the Court of Appeal was dealing with the question of leave to issue execution, the judgment of Allen J. is instructive on a number of matters relevant to this case and expresses views that I consider applicable and determinative.

55. For the purposes of this aspect of the judgment, in a similar way to this application, the judgment of the Court of Appeal in Moloney records that an argument was made in the High Court regarding the change of name from GE Home Loans to Pepper Finance. While the matter did not have to be resolved in the Court of Appeal, Allen J. was clear that it was correct to identify, by reference to ss. 30(6) and 63(12) of the Companies Act, 2014, that GE Home Loans and Pepper Finance were one and the same entity (see, para. 48 of Moloney). The Court of Appeal went on to find that the Pepper Finance was the registered owner of the charge, albeit that the registration was under its former name.

56. Hence there is no merit in the argument that the various changes in the ownership of the entity once named GE Home Loans meant that it became a different company. This case is concerned with what the company owned and not who owned the company.

57. The second argument was that the contractual arrangements between the appellants and GE Home Loans contained some term, express or implied, that the ownership of the company could not be altered without the consent of the appellants. There was no basis in evidence for that argument. The terms and conditions of the loan offer and the terms and conditions of the mortgage agreement simply provide no support for that contention. I will address in more detail below the question of whether those terms and conditions make provision for a change in the ownership of the loan and charge themselves, which is a different issue.

58. In those premises I am entirely satisfied that Pepper Finance has proved on the balance of probabilities that it was and remains the registered owner of the charge at issue in these proceedings. Hence the first proof identified in Bank of Ireland v. Cody has been satisfied. The next question is whether the power to seek possession has arisen and is exercisable.

Has the right to seek possession arisen and is it exercisable?

59. The appellants did not challenge the evidence on behalf of Pepper Finance that they obtained a home loan from GE Home Loans and charged their property as security for the loan. Likewise, there was no dispute that the terms and conditions of the mortgage agreement made clear that scheduled repayments had to be made and, if they were not, this amounted to an event of default which if not remedied could lead to demand for the repayments of all sums due and a demand for vacant possession. Finally, there was no dispute that there had been significant events of default to the point where very substantial arrears had arisen, and that demands for repayment and possession had been served. In the premises I am fully satisfied that in this case the right to seek possession had arisen and was exercisable. As such, the question then is whether any of the matters raised by the appellants can operate properly as an obstacle to a summary order for possession.

Securitisation: Can the holder of legal title to the underlying loan and charge seek to exercise the right to possession?

60. The first point to be made is that the court is now satisfied that any difficulties that may have arisen at an earlier stage in the proceedings in connection with the redactions to the securitisation documents have been addressed properly. I have set out above the matters addressed in the affidavit of Mr. Nevin in that regard. The operative clauses so far as they are material to this application are clear and there is strong evidence that the plaintiff was and remained the legal owner of the mortgage debt and the charge. In those premises, this case now is fully distinguishable from the situation that arose in Pepper Finance v. Moynihan, and the reasons why that case was remitted to plenary hearing are not applicable in this case. I am satisfied that the evidence established that the effect of the securitisation agreements was that the legal and beneficial interests in the appellants’ debt and security were separated, with the legal interest remaining with Pepper Finance.

61. The second point is that I am also fully satisfied that far from preventing the securitisation or assignment of the debt and charge in this case, the mortgage terms and conditions contained a series of express provisions that undoubtedly entitled the plaintiff, without the consent of the appellants, to enter into the securitisation transaction that occurred in this case. The appellants’ concern about notification of the securitisation is not relevant, although there was evidence that they were notified. However, this is not a case in which the plaintiff seeks to rely on an entitlement that flowed from an absolute assignment, in which written notification is required by section 28(6) of the Supreme Court Judicature (Ireland) Act, 1877. What occurred in this case was not an absolute assignment but instead a form of securitisation that involved a transfer of beneficial ownership. Accordingly, the argument by the appellants that in some sense the plaintiff breached its agreement with them cannot be correct.

62. That leads to the question of the status of the plaintiff as the holder of the legal title to the underlying debt and charge. As noted, the appellants argued that the result of the securitisation transactions is that the plaintiff holds their loan and mortgage on a bare legal trust. According to the appellants, the plaintiff in that capacity should not be considered as the owner of the debt and charge and has no entitlement to make decisions such as the decision to commence and prosecute proceedings. I have already found that the plaintiff is the registered owner of the charge, and, on the basis of established authority, the appellants are not entitled to challenge the conclusiveness of the register in that regard in these proceedings. Hence, the only question presented by the appellants is whether the plaintiff as legal owner of the debt is entitled to seek and obtain the relief in this application even where another entity owns the beneficial interest in that debt.

63. For the reasons set out below I am satisfied that the plaintiff as the legal owner of the debt is entitled to seek the relief and is the proper person to make that application. The appellants’ arguments are based on a misunderstanding of the legal nature and consequences of the securitisation process that occurred.

64. The nature and effect of the securitisation transaction in this case has been considered by the court on numerous occasions at this point. In Pepper Finance Corporation (Ireland) DAC v. Hanlon (High Court, Ní Raifeartaigh J., 11 January 2018), Ní Raifeartaigh J. delivered an ex tempore judgment which is recorded in an approved transcript. The court explained the issue as follows: “On the 28th September 2012, Pepper Netherlands took over the entire share capital of Woodchester, then that name changes to Pepper Finance Corporation (Ireland) on the 11th October 2012 in accordance with the Companies Act 1963… Separately, if you like, what happened is that the Plaintiff sold the beneficial interest in its mortgage book which included the Defendants' mortgage, to Windmill Funding Ltd. and I note that again to a layperson it may seem as if something is sold it is a simple matter, as if you have a book and you give it to someone else and you sell it. It all goes. But in fact the legal complexities are much more than that, parts of it can be sold and parts of it are retained and there can be a split between the legal and the beneficial ownership. it is not simply as straightforward as the thing, a mortgage, being like a tangible thing that simply transfers in its entirety… Unfortunately, one really does have to be a lawyer to understand what he is exactly saying, but this mortgage sale deed on 28th September 2012 is between GE Capital Woodchester Home Loans, a seller and portfolio manager, then there is Windmill Funding Ltd. who are the issuer. There is Pepper Netherlands who we know subsequently and GE Woodchester becomes Pepper Finance DAC, the Plaintiff in the present case”.

65. The above dicta of Ní Raifeartaigh J. were adopted by Heslin J. in Pepper Finance Corporation (Ireland) DAC v. Conway [2020] IEHC 35. In Conway, Heslin J. sets out an extremely thorough and helpful summary of the case law up to that point concerning the nature of a securitisation transaction and the right to enforce security thereafter. I agree fully with his analysis, which I have outlined below.

66. In Freeman v. Bank of Scotland Plc [2014] IEHC 284, McGovern J. addressed the argument often raised by defendants regarding securitisation of mortgages: “It is an important principle in securitisation transactions that the originating bank that sells the mortgages to the SPV, under an equitable assignment, continues to service the mortgages and the legal title remains with the originating bank. Where customers have provided their consent as part of the standard mortgage terms and conditions, they are not specifically notified that their mortgage has been securitised.”

67. In relation to the lender’s right to recover, Noonan J. in Governor and Company of the Bank of Ireland v. McMahon [2017] IEHC 600 considered that: “It is therefore clear beyond doubt that the [defendants] are not entitled to make any complaint based on any alleged securitisation of their loan as they expressly consented to it. Further, even if that were not the case, the authorities to which I have referred make clear that securitisation, if it occurred, does not affect the lender's right to recover the debt.”

68. Heslin J. in Conway considered that the dicta of Ní Raifeartaigh J. were relevant on the basis that Hanlon was concerned with the very same MSD as was at issue in Hanlon. Heslin J. was further satisfied that the description of the securitisation process provided by McGovern

J. in Freeman mirrored the process at issue in Hanlon and therefore adopted the dicta of McGovern J. Where the MSD at issue in the instant proceedings is the very same as that before the Court in Hanlon and Conway, I am similarly satisfied to adopt the dicta of Heslin J. in Conway and the preceding dicta in Hanlon and Freeman.

69. Insofar as further clarification was required, it can be noted that the entitlement of the holder of the legal title to pursue relief pursuant to section 62(7) of the 1964 Act has been confirmed recently in three cases by the Court of Appeal, which dealt with the effect of assignments. Those authorities are binding on this court and are very clear in their meaning and effect.

70. First, in the Pepper Finance v. Moloney judgment the Court of Appeal agreed with the views expressed by Ní Raifeartaigh J. in Pepper Finance v. Hanlon that a securitisation transaction does not invalidate or affect the entitlement of the holder of a legal interest in the security to enforce that security for the benefit of the beneficial owner. As put by Allen J. at para. 61: “61. However, Hanlon is clear authority – if authority be needed – for the proposition was that it was sufficient in law for the appellant to show that that it had the legal title.”

71. In addition, the issue of the effect of assignments was addressed recently by the Court of Appeal in Permanent TSB v. Donohoe [2025] IECA 222. 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. 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: “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.”

72. Accordingly, there is no valid argument to be made in relation to the securitisation issue.

The TAC determination

73. I am satisfied that the TAC determination was irrelevant to the issues raised by the appellants. Principally this is because the issue of whether the beneficial interest in the underlying loans and securities has been transferred does not affect the entitlement of the holder of the legal title to those interests to seek the relief sought in this application. In addition it is clear that the determination is irrelevant because it addressed an entirely different legal issue. This was confirmed by the Court of Appeal in Pepper Finance v Moloney.

74. Leaving aside the question of how an anonymised determination appears to have been circulated and the parties identified; at para 52, the Court of Appeal noted that the TAC determination was not concerned with the enforceability of loans and securities. Allen J., at para. 56 found that the determination was concerned with whether the appellant was entitled to carry forward trading losses incurred before the transfer against later profits. That, in turn depended on whether, by reason of the transfer, the business theretofore carried on by the appellant had ceased, or there had been a major change in the nature or conduct of the company's trade. As such the issue in the determination was “quite different to the issue before the High Court”.

The unfair terms issue

75. The appellants have argued that the terms of the mortgage charge constitute unfair terms for the purposes of Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts. They say that the court must conduct an “own motion” examination of the fairness of the contract for compliance with the Directive. In their affidavits, the appellants identified a large number of provisions in the mortgage agreement that they contend amounted to unfair terms. Very few of the terms identified by the appellants were relied on by the plaintiff and in most respects were wholly irrelevant to the issue of whether the plaintiff was entitled to the relief sought.

76. The plaintiff addressed the issue of unfair terms in the original set of submissions provided to the court in advance of the 31 October 2024 hearing. The plaintiff acknowledged that the court must conduct an “own motion assessment” of the contract in line with the case law. The plaintiff further noted that the fairness assessment of the contract should not relate to the subject matter of the contract nor the adequacy of price and remuneration insofar as these terms are in plain and intelligible language. The plaintiff ultimately argued that it was seeking to enforce core terms of the contract, which were not unfair.

77. The obligation for the court to conduct an “own motion” assessment of the contract for compliance with the Directive was noted by Barrett J. in AIB v. Counihan [2016] IEHC 752. Referring to the decision in Aziz v. Caixa d’Estalvis de Catalunya Tarragona I Manresa (Catalunyacaixa) (Case C-415/11), Barrett J. considered that the obligation under ECJ case law is for the national court to assess, of its own motion, whether a contractual term falling within the scope of the Directive 93/13/EEC is unfair.

78. The precise scope of this assessment has been the subject of substantial judicial commentary in this jurisdiction. Heslin J. noted in Start Mortgages DAC v. Clarke [2024] IEHC

310 that the state of the law on unfair terms is as set out by McDermott J. in Grant & Anor v. The County Registrar for Laois & Ors [2019] IEHC 185 and Permanent TSB Plc. v. Davis [2019] IEHC 184. Heslin J. considered that ‘the obligation on this Court goes no further than to comply with the approach outlined in Grant and Davis, even if the ‘core terms exemption’ is subject to a separate ‘test’ concerning the transparency of the terms exempted, I am satisfied that they are entirely transparent.’

79. The approach of the court in Davis was summarised by Woulfe J. in Start Mortgages DAC v. Ryan [2021] IEHC 719, at para. 36: “…the issue of unfair terms was one addressed by McDermott J. in Permanent TSB Plc. v. Davis [2019] IEHC 184, which, in turn, addressed the decision of the Court of Justice of the European Union in Aziz v. Caixa d’Estalvis de Catalunya (Case C-415/11). In Davis, having considered the terms of the mortgage and the loan agreement, McDermott J. highlighted the provisions of Article 4(2) of the Directive, which provides as follows: “Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other, in so far as these terms are in plain intelligible language.” In Davis, McDermott J. held that the Defendants were consumers within the terms of the Directive, and the 1995 Regulations, but the alleged unfair terms related to the core terms of the agreement between the parties, primarily to the terms regarding repayment of the amount advanced in the context of income and the ability to repay.”

80. Relatedly, Phelan J. in Start Mortgages DAC v. Flanagan [2023] IEHC 667, noted that: “All borrowers understand that the fundamental essence of mortgage agreement is that if scheduled loan repayments are missed the secured asset may be repossessed. This is such a fundamental principle that it is difficult to see how a contractual provision which gives effect to it could be said to fail the fairness test and no provision of the type listed as unfair under the Unfair Contract Terms Directive were identified by the Court.” [emphasis added]

81. The court has considered the arguments raised by the appellants in relation to the terms of the contract and has further considered the terms of the agreement in an “own motion assessment”. The dicta of Phelan J. referred to above is pertinent and compelling: the terms relied upon by the plaintiff which form the basis of the possession application are fundamental to a mortgage agreement. As I have previously noted in Start Mortgages DAC v. Doyle [2024] IEHC 561:- “[T]he plaintiff will lend money to the defendants on terms that made clear that the money had to be repaid in a clear and structured manner. That did not occur and there was (and remains) very serious default amounting effectively to a complete failure to meet the necessary repayments. That being so, the agreement was clear that the holder of the registered charge under the terms of the instrument was entitled to seek possession. In those premises the court cannot identify any unfairness in the agreement.”

82. Having regard to the clearly established position set out in the case law, and the extent of the obligation to conduct an “own motion assessment”, the court is satisfied that no unfairness in the agreement can be identified. The obligations in the terms and conditions of the loan offer and mortgage/charge were clear and agreed to by the appellants. This is a case in which there was more than just a technical event of default; there was a lengthy period of serious default. In fact, as a result of the efforts of the plaintiff to comply with the Central Bank Code of Conduct on Mortgage Arrears the appellants were afforded a number of opportunities to remedy the unfortunate situation in which they found themselves.

83. I am fully satisfied that the terms relied on by the plaintiff are core terms of the mortgage agreement and would be fully understood by a reasonable person as central to the purpose and effect of obtaining a significant home loan secured by a mortgage. For the avoidance of doubt, I am satisfied nonetheless that those terms are not in any sense unfair.

CONCLUSION

84. For all the reasons set out above, I am satisfied that the plaintiff has 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. The appellants have not raised any valid arguments that would justify refusing that relief or remitting the matter to plenary hearing. That being so, the appeal will be refused.

85. As this judgment is being delivered electronically, my provisional view is that, having fully succeeded, the plaintiff should be entitled to their costs to be adjudicated in default of agreement. However, I consider that those costs should be limited to the costs up to and including the first hearing. I consider that the costs associated with the later part of the proceedings could have been avoided had the plaintiff adopted a more reasonable approach to the question of redactions to the securitisation documents, and the later hearings were conducted to allow the plaintiff to remedy the potential problem they faced in light of the judgment in Pepper Finance v. Moynihan.

86. I will list the matter before me on Thursday, the 15 January 2026 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.