High Court allows appeal for possession of investment property despite defendant's family home claim.

THE HIGH COURT

Record No. 2025 85 CA

[2025] IEHC 722

BETWEEN

EVERYDAY FINANCE DESIGNATED ACTIVITY COMPANY

PLAINTIFF

AND

PAUL FARRELL

DEFENDANT

JUDGMENT delivered by Mr. Justice Sean Gillane on 18 December 2025

Introduction

1. This is an appeal from a decision of the Circuit Court, dated the 19th of March 2025, wherein the plaintiff obtained an order to recover from the defendant possession of a property known as 16 Cairnwood Court, Belgard, Tallaght, Dublin 24 (“the Property”).

2. The Property, which is a dwelling house, is comprised in Folio 35498F, County Dublin (“the Folio”).

3. The defendant appeared before the Court as a litigant in person.

Factual Background

4. On the 4th of January 2007, AIB Mortgage Bank offered to advance the sum of €828,000 to the defendant by way of a loan account facility bearing the account number 77590044.

5. This was to be secured by a mortgage repayable by way of monthly instalments. It was a condition of the loan offer that the Property, together with other property owned by the defendant, be mortgaged as security for this advance.

6. The loan offer provided that the secured monies would immediately become payable if the indebtedness or obligation of the borrower to the lender for the repayment of the secured monies was not paid when due.

7. Condition 8 of the loan offer stated that: “The Bank may, subject to due compliance with any statutory requirements, if applicable, exercise the right to demand early repayment of the Mortgage Loan balance outstanding and accrued interest thereon if the customer is in breach of the terms of this offer or the Lenders’ Mortgage over the property where, after due notice is given by the Bank, the Customer fails to remedy the breach.”

8. Condition 14(1) provided, inter alia, that: “The Customer hereby irrevocably and unconditionally consent(s) to the Lenders at any time or times hereafter transferring, assigning, disposing or submortgaging or sub-charging the benefit of this agreement, any collateral or ancillary security … and the Total Debt as defined in the Mortgage, to any third party, person or body…”

9. At the time, the Property was not a family home within the meaning of section 2 of the Family Home Protection Act 1976. The evidence before me establishes that it was an investment property that had been occupied by a tenant and her two dependents for a number of years.

10. It is clear that the defendant acknowledged and signed the conditions of the loan offer on the 1st of February 2007 and that he was, at the time, represented by a solicitor.

11. On the 6th of February 2007, the defendant signed the mortgage agreement with AIB Mortgage Bank and Allied Irish Banks plc (“AIB”). This was witnessed by his solicitor.

12. The agreement provided, at clause 2.1, that the mortgage shall be security for the “Total Debt” (as defined in the agreement) owed to each lender, whether or not they hold other security.

13. Clause 4 of this agreement stated that the AIB Mortgage Conditions were incorporated into the mortgage. In the event of any conflict between the terms of the mortgage and the AIB Mortgage Conditions, it stated that the terms of the mortgage shall prevail.

14. Clause 5 of the agreement provided for a ranking of security and stipulated that until AIB Mortgage Bank had granted a full release or discharge of the mortgage (“the AIB Mortgage Bank Release Date”):

“(i) this Mortgage shall rank first as security for the Total Debt owing to AIB Mortgage Bank in priority in all respects to the security held under this Mortgage by AIB; and

(ii) thereafter shall rank next as security for the Total Debt owing to AIB.”

15. It also stipulated that until the AIB Mortgage Bank Release Date, the mortgage may only be enforced by AIB Mortgage Bank and that AIB shall not take any steps to enforce the mortgage, appoint any receiver or take possession of the mortgaged property without the prior written consent of AIB Mortgage Bank.

16. The schedule to that agreement referred to the Property and two other properties at Cairnwood.

17. Clause 3.2 of the AIB Mortgage Conditions stated that: “Notwithstanding the terms of the Mortgage Deed, the Total Debt owing to a Lender as shall for the time being remain unpaid shall immediately become due and payable on demand to the relevant Lender on the happening of any Event of Default.”

18. These Conditions also contained a provision at clause 9.7 whereby the mortgagor unconditionally consents to the lenders transferring, assigning, disposing, submortgaging or sub-charging the benefit of the mortgage.

19. The mortgage was registered in the Land Registry on the 8th of May 2007 and a certified copy of the Folio has been exhibited in the proceedings. AIB Mortgage Bank was recognised as the owner of the charge in the Folio.

20. The ‘all sums’ mortgage granted AIB Mortgage Bank the power to appoint a receiver, and Mr. Jim Stafford was appointed as a receiver on the 15th of March 2013.

21. On the 27th of July 2017, AIB Mortgage Bank wrote to the defendant referring to previous correspondence in connection with the amounts due and owing in respect of the mortgage agreement.

22. The letter stated that the total balance due in connection with the agreement was €567,827.28 (being the principal sum of €567,109.78 together with interest and charges in the sum of €717.50).

23. The letter also indicated that interest was accruing in accordance with the terms of the agreement. It continued: “We hereby make formal demand of you for the immediate payment and discharge by you of the said sum of €567,827.28, plus any additional interest accrued to the date of payment.”

24. This sum was not discharged and on the 7th of December 2017, AIB Mortgage Bank’s solicitor wrote to the defendant demanding possession of the Property within seven days of the date of the letter and indicating that if vacant possession of the premises was not delivered up, legal proceedings may issue for recovery of possession of the Property by the bank.

25. By letter dated the 4th of January 2018, the defendant was informed of the intention of AIB Mortgage Bank to immediately issue legal proceedings. The letter also stated that the bank was willing to meaningfully engage with the defendant to consider “any workable solutions.”

26. On the 4th of April 2019, AIB wrote to the defendant informing him that they had reached an agreement to sell his loans to a third party, Everyday Finance DAC (the plaintiff in these proceedings). The defendant was told that that transfer was expected to complete in and around the 14th of June 2019.

27. On the 14th of June 2019, AIB and AIB Mortgage Bank, as sellers, and Everyday Finance DAC, as buyer, executed a global deed of transfer whereby the sellers’ interest in the scheduled loans and security documents was transferred. The defendant’s loan facility and related security were included in that transfer.

28. The defendant was informed that this had taken place on the 20th of June 2019 by way of ‘goodbye letter.’

29. On the 28th of June 2019, Everyday Finance DAC wrote to the defendant confirming that at the end of a transitional period, services in relation to his loan would no longer be provided by AIB or AIB Mortgage Bank and would instead be provided by Link ASI Limited. This is described as the ‘hello letter.’

30. By notice of motion issued in the Circuit Court on the 10th of May 2021, an order was sought substituting Everyday Finance DAC as the plaintiff in the Circuit Court proceedings. This order was made on the 15th of December 2022.

Applicable Principles

31. In circumstances where the burden is on a plaintiff to establish its case, it is useful to set out, in the first instance, what must be established by the plaintiff in an application for summary judgment in relation to registered land.

32. The procedure applicable to this 2007 mortgage is governed by section 62(7) of the Registration of Title Act 1964 (“the 1964 Act”) which provides: “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.”

33. The Supreme Court, in Bank of Ireland Mortgage Bank v. Cody [2021] 2 I.R. 381, identified two facts that must be proven by the owner of a charge who seeks to obtain possession pursuant to section 62(7).

34. The plaintiff must firstly prove that they are the owner of the charge and secondly, that the right to seek possession has arisen and is exercisable on the facts.

35. Baker J. was clear that, even though the availability of a summary type process is desirable in the interests of justice, the procedure was not to be regarded as some kind of “shortcut or a less satisfactory administration of justice.”

36. Baker J. also looked at the relationship between the summary process and the statutory provisions in relation to the register and said at paragraph 54: “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 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 in Tanager DAC v. Kane[2018] IECA 352, [2019] 1 I.R. 385. The judgment of the Court of Appeal held, inter alia, 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.”

37. Section 31(1) of the 1964 Act provides: “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.”

38. I am of the view that the primary proofs have been established in evidence in this case. The executed mortgage agreement has been proven, and the Folio clearly identifies AIB Mortgage Bank as the owner of the charge as a burden on the Property.

39. The deed of transfer has been exhibited demonstrating that the plaintiff has the legal right and interest in the loan facility, entitling it to pursue the claim in these proceedings. I note the order of substitution made by the Circuit Court. The schedule to the deed of transfer expressly includes the mortgage dated the 6th of February 2007 between the defendant and AIB and AIB Mortgage Bank.

40. Statements of account have been exhibited demonstrating the accumulation of arrears at the time of the initiation of proceedings and an affidavit dated the 26th of January 2024 in respect of arrears is before the Court.

41. It has been established that payment was demanded of the defendant and that the monies are still due and owing.

42. It is beyond question that the defendant is in default, and I note that a receiver was appointed on the 15th of March 2013 because of this. Therefore, the plaintiff’s rights under the mortgage agreement are exercisable.

Basis for a Defence?

43. I must now turn to the evidence to see whether there is any basis for a defence and consider whether any argument has been made in that regard which would merit further scrutiny, argument or evidence, oral or otherwise. If so, it would be inappropriate to proceed to summary judgment and the matter would have to be remitted for plenary hearing.

44. I can find nothing that would cause me to doubt the truthfulness or credibility of the evidence presented by the plaintiff. However, that is not the end of the enquiry.

45. The defendant points to a broad range of issues which he asserts give rise to a defence and which would justify remitting the matter for plenary hearing.

46. The defendant has filed eight affidavits and exhibited hundreds of pages of documentary material. A vast array of matters is canvassed by him, and he has made a large number of allegations. It is, in my view, unnecessary, if not impossible, to go through the detail of everything that is alleged.

47. A final lengthy affidavit was purported to be served by the defendant on the eve of the hearing, to which the plaintiff took objection. There were a large number of documentary exhibits to this affidavit which the defendant insisted he had also served, but it later transpired that he had omitted to do so.

48. A further aspect to this service to which objection was taken was the manner of delivery. It appears that the defendant had left the affidavit at the reception of the office of counsel for the plaintiff. I accept that it was inappropriate to attempt to serve an affidavit in this way, and I can fully understand why counsel was unhappy with this. It ought not to be repeated.

49. However, I am satisfied that the defendant did not intend any discourtesy by the manner of delivery. It seemed to me throughout the hearing that the defendant presented his case in a robust but courteous manner.

50. Rather than delay matters, I received the affidavit on a de bene esse basis and the hearing proceeded.

51. In the course of the hearing, counsel for the plaintiff attempted to deal with the matters complained of by the defendant in separate categories. I think this was a sensible approach.

52. The defendant complains that the Court was being misled by the plaintiff “relying on one property for possession” and that the mortgage charge refers to three properties, two of which had been sold by the plaintiff’s agents.

53. The evidence established that a receiver had been appointed over the three properties at Cairnwood, including the Property. The proceeds of the sale of the two other properties by the plaintiff as mortgagee in possession were applied to the defendant’s account.

54. However, nothing has been said to suggest why this could lead to a conclusion that the Property was not itself valid security for the loan. Further, despite these arguments being made in early course during the proceedings, it was never actually asserted by the defendant that the money was not owed by him.

55. The defendant was also particularly concerned about a commercial unit at Baldonnell from which he once ran a business. A receiver was also appointed in respect of this property. While a considerable amount of time was spent during the hearing referring to this property, I am told that there were already separate High Court proceedings in respect of it.

56. The defendant also complains of the “unlawful sale and registration” of the other properties at Cairnwood. However, these proceedings are solely concerned with the Property and even if some class of wrongdoing was established in relation to the other properties (which is denied), I cannot see how it could be relevant to the merits of this application.

57. I am satisfied that nothing urged in relation to these matters could amount to a good defence.

58. The defendant complains of overcharging in respect of his loan account which he claims contributes to his “bona fide defence.” The defendant says that he was a victim of systematic overcharging by the plaintiff and that he has evidence demonstrating the overcharging and manipulation of benchmark interest rates within the mortgages. He also refers to what he calls the “Tracker Scandal” and says this cannot be ignored.

59. The plaintiff denies any overcharging and says that when the complaint was made on the 4th of April 2018, it was investigated. I have seen a letter, dated the 8th of May 2018, addressed to the defendant on behalf of AIB and AIB Mortgage Bank stating that his loan accounts had been examined and that the correct rates were applied. The defendant was also informed of his right to appeal to the Financial Services and Pensions Ombudsman, which had not been done when the proceedings were initiated.

60. The plaintiff submits that overcharging, if established, could not in law amount to a good defence regardless.

61. In Start Mortgages DAC v. Doyle [2024] IEHC 561, O’Donnell J. (as he then was) said at paragraphs 30-31: “In a similar way to the situation in Clarke, Mr. Fitzpatrick himself did not swear an affidavit setting out his evidence in the present case. His overcharging argument, taken at its height, is a ‘ bald assertion of overcharging’. As I have noted above, Woulfe J. referring to Bank of Ireland v. Blanc [2020] IEHC 18, made clear in Start Mortgage DAC v. Ryan: that in a case for possession, default is the issue, not the amount.

Any dispute about whether the plaintiff miscalculated or overcharged the interest on the principal sum does not affect the right to possession, where, as here, the extent of that default was so extensive prior to the commencement of the proceedings.” (Emphasis added.)

62. In Bank of Ireland v. Blanc [2020] IEHC 18, O’Regan J. said at paragraph 27: “The current investigation before the court is possession only. I am not asked to make a judgment of any description as to the sums of money that are due and owing currently by the defendants to the bank. What the Court must do is look to determine if, by the time the plaintiff commenced the process leading to proceedings in January, 2016 there was default in the loan repayment sufficient to enable the plaintiff to commence their possession proceedings in September, 2016 having regard to the contract entered into between the parties.”

63. O’Regan J. went on to say at paragraph 30 that: “The issue of how much money is due and owing and the guide to the granting or withholding of possession was dealt with by Ms. Justice Dunne in the High Court in 2009 in Anglo Irish Bank PLC v. Fanning [2009] IEHC 141, when it was indicated that a default was the issue, not the amount. That is clearly the case in circumstances where possession only is sought and not judgment of a particular sum of money, and possession is the only matter before this Court.”

64. In these circumstances, I am not satisfied that an issue of defence has been raised such as to justify remitting the matter for plenary hearing.

65. The defendant also complains that the plaintiff is guilty of a form of contributory negligence and reckless lending. This argument extended to a claim that the bank had, in effect, caused the default by removing an invoice discounting facility from the defendant which led to him experiencing cash flow problems, and thus the bank had “annihilated” his business.

66. However, in Launceston Property Finance DAC v. Walls [2018] IEHC 610, Noonan J. said at paragraphs 20-22: “It is common case between the parties that our law does not recognises a tort of negligent or reckless lending. That has been held in many cases. However, counsel for the defendant argued that this did not exclude a defence of contributory negligence under s. 34 of the Civil Liability Act, 1961. In effect it was suggested that the negligence of a lender in advancing money to a borrower can be used as a shield rather than as a sword… In my view, this argument is entirely misconceived. Counsel argued that a breach of contract had occurred in this case and thus the claim was in respect of a ‘wrong’ within the meaning of the 1961 Act. Whether a claim for money due on foot of a contract of loan were to be regarded as an action in breach of contract, on which I express no view, s. 34 clearly applies to an action in which it is alleged that damage has been suffered by the plaintiff. The word ‘damage’ is defined in s. 2 of the Act as including ‘loss of property, loss of life and personal injury’.

It seems to me that a claim for money due and owing cannot be regarded as a claim for ‘damage’ and accordingly one that is covered by s. 34. It would be quite anomalous if a claim for damages for negligent lending could not be maintained under our law but the same claim could be advanced by way of a defence at common law.”

67. There is nothing in that complaint that gives rise to a good defence.

68. The defendant has made many complaints about the appointment and conduct of the receiver. He has also argued that the plaintiff, through the receiver, “caused” the default. It is beyond any doubt that the appointment of the receiver predated the default, and, in fact, that the appointment came about in consequence of the default and as provided for in the mortgage agreement.

69. Further, it is well established that a receiver is deemed to be the agent of the mortgagor not the lender, and that the basis on which a receiver could be appointed is expressly provided for in the mortgage agreement.

70. At one point, the defendant argued that the receiver was, in fact, in possession of the Property. I am satisfied that the receiver has acted to receive rent from the tenant in situ but has never been able to take possession of the Property. It is also established that what was owed on the loan account far exceeded the receivable rent.

71. The defendant also complains about the conduct of the receiver, to include breaches of his privacy rights. I am of the view that any complaints about the conduct of the receiver do not amount to a good defence in these proceedings, but that these issues could be separately litigated if the defendant so wishes. I was informed during the course of the hearing that the defendant has in fact issued plenary proceedings against the plaintiff and the receiver.

72. The defendant argues that the proceedings issued in the name of the wrong entity, that Everyday Finance DAC lacked standing, and that the beneficial owner of the loan is the appropriate plaintiff.

73. The defendant also argues that the structure of the “mortgagee relationship” did not confer upon either AIB or AIB Mortgage Bank the right to commence legal action without the joint participation and consent of both parties. This is despite the express terms of the mortgage agreement.

74. As part of this argument, the defendant filed an affidavit on the 5th of April 2024 saying that he would consent to the remedy sought by the plaintiff if a named employee of the plaintiff would furnish a statutory declaration affirming that the plaintiff is “the rightful owner of the mortgage I executed.”

75. In Pepper Finance Corporation (Ireland) DAC v. Jenkins [2018] IEHC 485, Binchy J. addressed this question in circumstances where proceedings had issued in the name of a company other than the one that had originally provided the loan to the defendants. The plaintiff in that case, who bought the loan, entered into a subsequent securitisation agreement with a third party (Windmill Funding Ltd) in relation to the loan. This had the effect of the plaintiff retaining legal title as bare trustee.

76. The defendants sought to argue that the effect of this transaction was that their loan had been sold and that, accordingly, the plaintiff no longer had any interest in their loan such as to entitle it to issue proceedings against the defendants to recover the loan or to enforce the security.

77. At paragraphs 30-31, Binchy J. held that the courts: “…give effect to the manner in which the securitisation was intended to operate by the parties thereto which, it must be said, is in no way prejudicial to the rights of the borrowers. Furthermore, unless borrowers are specifically put on notice of such an assignment I consider that the risk that a borrower could be subjected to more than one suit in respect of the same debt is more illusory than real and I do not believe that the courts would countenance such a proposition.

For all of these reasons, I consider that the plaintiff was not obliged either to join Windmill to the proceedings or to declare its status as trustee of Windmill in the proceedings. The plaintiff is therefore entitled to succeed and the appeal should be allowed.”

78. In Permanent TSB v. Donohoe [2025] IECA 222, Costello J. said at paragraph 51: “In Mars Capital Finance Ireland DAC v Phelan [2025] IECA 117 Binchy J, with whom Woulfe and MacGrath JJ agreed, considered an argument to the effect that the Deed of Transfer did not transfer ownership of the appellant’s loan facilities to the respondent in those proceedings when it was apparent from the Deed of Transfer that the purchase monies were provided, not by the respondent, but by a company referred to as Panelview. The appellant contended that Panelview was therefore the true owner of the appellant’s loans and not the respondent. The Court dismissed this argument as misconceived. At para. 28, Binchy J held: ‘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 purpose of 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.’ This case makes clear that the court is concerned with the legal title to the loan and not with the beneficial ownership of the loan. No credible basis for this Court to depart from this recent authority was advanced and accordingly I accept that it correctly states the law on this issue.”

79. I am of the view that there is no substance to the defendant’s complaints in this regard. As set out above, the mortgage agreement expressly provided for assignment and transfer, and the process itself was explained to the defendant in the ‘hello’ and ‘goodbye’ letters.

80. The defendant argued that there was no evidence that the plaintiff owned the loan. However, the deed of transfer is before the Court and clearly includes the defendant’s loan. There are no redactions to that document relevant to the defendant’s account.

81. The defendant spent a considerable amount of time arguing that the debt had in fact been settled by virtue of his delivery of a promissory note to the plaintiff, which he said had not been returned.

82. This promissory note dated the 30th of September 2024 purports to promise to pay the sum of €1,938,070.74 to the plaintiff. It is expressed to be in the name of “P.P. Pauledward; Occupier of the Office of the Executor of the PAUL EDWARD FARRELL Estate/Trust; Attorney in Fact; Authorised Creditor.” It further states that payment will be made in monthly instalments of €2,000.00.

83. The promissory note argument was connected to another issue in the proceedings on which much time was spent. I propose to quote briefly from an affidavit filed by the defendant to illustrate what was advanced.

84. In an affidavit dated the 11th of October 2024, running to over 60 pages and filed after pleadings had closed, the defendant says: “i, Paul-edward( Farrell) ; living man whom dwells at Lacken House, Lacken Village, Wicklow, being 18 years and upwards; MAKE OATH under the penalty of perjury; AFFIRM as follows; i am the named Defendant in the above entitled proceedings; i am making a special limited appearance; whilst in my private jurisdiction herein ;i; Paul-edward; as Principal; living; of the age of majority; Competent and capable in handling my own affairs; as is my fiduciary duty come to this Honourable Court to settle this matter; in Peace and Honour; as a friend of this Honourable court; a natural person; iam the lawful Occupier of the Office of the Executor of the PAUL FARRELL Estate/Trust;

for the avoidance of any doubt; iam not the PERSONA-( legal fictional entity) referred to; in these entitled-named proceedings referred to as the Defendant ‘PAUL FARRELL’; i conditionally accept all offers to contract; on condition that verification is made in writing and signed by the Plaintiff ‘upon penalty of perjury’; and upon their ‘full commercial liability’ i lawfully administer the cestui que vie estate/Trust; namely; PAUL EDWARD FARRELL; when i refer to the Defendant = Allograph; i say this fact is of material relevance to these entitled proceedings; at this juncture it is emphatically denied that any monies were ever owed by the PAUL EDWARD FARRELL Estate/ Trust to the Plaintiff; this undeniable fact is expounded upon later into this affidavit; title to the subject property should be revested back to Paul-edward; the Principal; Beneficiary and secured party creditor” (Emphasis in the original.)

85. In similar vein, in an affidavit dated the 11th of November 2025, filed on the eve of the hearing, the defendant says: “I am the beneficial Steward and primary beneficiary of the Private Remembrance Trust (‘the Trust’), which holds my family home . This Trust operates under private equity, common law, divine conscience, and natural justice. It is recognised in statutory environments as a valid inter vivos express trust under equitable principles.

The Trust establishes trustees to manage Trust res and conveys my full legal name and derivatives into Trust res. I operate in private equity and can be recognised in statutory settings without subordination.

I am the Occupier of the Executive Office of the PAUL FARRELL Estate/Trust and lawfully hold stewardship of the subject properties held in the PAUL FARRELL Estate/Trust.”

86. In the course of the hearing, the defendant handed in a document headed “Securitization Research Report With CUSIP research for the Corporation PAUL FARRELL PERSONA” in which Paul-edward is referred to as the “Occupant of the Executors Office of the PAUL FARRELL Estate/Trust.”

87. This document refers to a ‘birth certificate bond number.’ During the course of the hearing, the defendant said that Paul-edward is his “given name” and asserted that “the trust that was set up by the State… there’s a bond that exists [and] the bond is verification of the funding.”

88. I confess that I had, and still have, real difficulty in understanding the meaning of any of this and its relevance to the proceedings or to the argument sought to be made in relation to the promissory note.

89. Leaving aside the argument that the promissory note could be seen as an acknowledgment of indebtedness to the plaintiff, it is clear that a promissory note has to be unconditional, and I accept the argument of counsel for the plaintiff that a promissory note cannot be used to unilaterally alter repayment terms already agreed to.

90. I therefore reject the contention that the debt has been settled on this basis.

91. I also note that the mortgage agreement was entered into and signed by the defendant as Paul Farrell at a time when he had the benefit of legal advice. There is no basis whatsoever for saying that he is not the person referred to in these proceedings or for recognising some sort of limited or ‘special’ appearance.

92. The defendant also argued that the plaintiff was unregulated and that their financial position does not support the proposition that they purchased the loan book.

93. However, there was evidence before me that the plaintiff is regulated by the Central Bank as both a retail credit firm/home reversion firm and a credit provider.

94. In any event, in Donohoe, Costello J. held at paragraphs 75-76: “… Even if it were factually sustainable, which it is not, the fact that a defendant asserts that a party has breached the provisions of s. 29 (not s.28) does not give rise to a defence to that party’s claim to recover a debt or to enforce security for a debt. The regulatory code is self-contained and a matter for regulation by the Central Bank. The sanctions for breach of the requirements are set out in the 1997 Act. They do not extend to rendering unenforceable, unlawful or void the credit agreements entered into – or acquired – by the unauthorised entity and a third party, or the actions to enforce same, which are governed by contract law, not regulatory law.

For these reasons, in my judgement, the High Court ought not to have referred for plenary hearing the question of compliance by Start Mortgages with the terms of s. 28 of the Central Bank Act 1997, as amended. I would allow the appeal on this ground also.”

95. For all of these reasons, I am of the view that the plaintiff is entitled to an order for possession.

96. The defendant now says that the Property is his family home and there is no evidence to contradict that. However, this was not the basis on which the proceedings were originally initiated. In circumstances where it is not contested that it is now a family home, I will hear the parties as to the appropriateness of a stay on the order.