High Court dismisses appeals and orders possession transfer to Mars Capital Finance Ireland DAC.

APPROVED

REDACTED

AN ARD-CHÚIRT

THE HIGH COURT

[2026] IEHC 80

Record No: 2018/269CA

Record No: 2024/264CA

BETWEEN/

BANK OF IRELAND MORTGAGE BANK

PLAINTIFF

AND

EDMUND SEERY AND ANN SEERY

DEFENDANTS

AND

MARS CAPITAL FINANCE IRELAND DESIGNATED ACTIVITY COMPANY

APPLICANT/MOVING PARTY

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 13th day of February 2026

INTRODUCTION

1. This judgment comprises (i) an appeal by the first named defendant (by Notice of Appeal dated 13th July 2018) against an order for possession made by the Circuit Court on 6th July 2018 of a property at Cloneyheigue, Kilbeggan, County Westmeath, comprised in Folio 21560F of the Register of Freeholders, County Westmeath (“the property”, “mortgaged property” or “subject property”) and an (ii) an appeal, also by the first named defendant, (by Notice of Appeal dated 15th November 2024) against an order made by the Circuit Court on 12th November 2024 substituting Mars Capital Finance Ireland DAC as the plaintiff for Bank of Ireland Mortgage Bank.

2. The subject property is the principal private residence and family home of Mr. Edmund Seery and Mrs. Ann Seery (“the defendants”) who are estranged. The applicant and moving party is Mars Capital Finance Ireland Designated Activity Company (“Mars CFI DAC”).

3. In Pepper Finance Corporation (Ireland) DAC v O’Reilly [2025] IECA 140 (Costello P., Whelan J. and Binchy J.) Costello P., at para. 22 of her judgment, described the High Court’s jurisdiction in similar applications, as follows:

“22. An appeal from the Circuit Court to the High Court is different to an appeal from the High Court to the Court of Appeal or the Supreme Court. The hearing is de novo. The High Court considers the matters afresh and makes its decision based on the evidence adduced before the High Court. Evidence before the Circuit Court is not evidence before the High Court and cannot form the basis of the judgment of the High Court. It is not concerned with whether the Circuit Court erred in its decision. When the Circuit appeal is heard, the High Court must determine whether, at the time of the application before it, the party who seeks to be substituted as the plaintiff is entitled to judgment against the defendant: it is not concerned with whether the party who was plaintiff in the Circuit Court was entitled to judgment against the defendant. To that extent, it is an analogous stage in the proceedings as pertained in IBRC v Comer [2014] IEHC 671 (per Kelly J. (as he then was)) and IBRC v Morrissey i.e. pre-trial.”

4. By virtue, therefore, of s. 37(2) and s. 38(2) of the Courts of Justice Act 1936, such appeals are “heard by way of rehearing of the action or matter in which the judgment or order the subject of such appeal was given”, i.e., a de novo hearing or a rehearing of the matters.

5. In these applications, therefore, adopting the observations of Costello P. at paras 22 and 23 of the judgment of the Court of Appeal in Pepper Finance Corporation (Ireland) DAC v O’Reilly [2025] IECA 140, I must consider whether the intended assignee, Mars CFI DAC, is, at the date of the hearing of these appeals (on 23rd October 2025 and 31st October 2025), entitled to an order for possession. The hearing is de novo and Mars CFI DAC is required to prove its claimed entitlement to an order for possession and in that regard, that it is the assignee of the Loan as secured by the Mortgage and Charge. It must prove the case in full, not simply that it is the beneficiary of an order of the Circuit Court. If it succeeds, a new order for possession will be granted, and it is that order, rather than the order of the Circuit Court, which is subject to enforcement.

6. In Pepper Finance Corporation (Ireland) DAC v O’Reilly [2025] IECA 140, KBC Bank Ireland plc had transferred its interests to KBC Bank NV, pursuant to S.I. 447/2023, and KBC Bank NV had allegedly assigned the interest in the loan and security underlying the loan to Pepper Finance Corporation Finance (Ireland) DAC (“Pepper”, as the assignee). An ex parte application had been made to the High Court, pursuant to O. 17, r. 4 of the Rules of the Superior Courts 1986 (“the RSC 1986”) to substitute the assignee (Pepper) as plaintiff in the proceedings and the High Court (Ferriter J.) ordered that the proceedings be amended by substituting Pepper for KBC Bank Ireland plc as the plaintiff in the title of those proceedings and the order contained a proviso that the defendant be notified of certain matters in writing. Whilst different parties are involved in these appeals, similar, though not identical, sequential issues arise in the applications before me, as arose in Pepper Finance Corporation (Ireland) DAC v O’Reilly.

7. In addition to the written submissions furnished, many of the points raised by the first named defendant were set out in his Affidavits.

8. Whilst these appeals are de novo hearings, it is apposite to set out the background and chronology which is common to each of the applications, and which are determined in this single composite judgment.

9. At the hearing before me, the following core documentation was referred to in relation to the appeal against the possession order of 6th July 2018: Civil Bill for Possession dated 8th June 2010; Grounding Affidavit of Raymond Lawless dated 18th May 2010 and the documents exhibited thereto; defendants’ Entry of Appearance dated 14th June 2010; first defendant’s Notice of Change of Solicitor dated 11th February 2011; second defendant’s Entry of Appearance dated 9th March 2011; Affidavit of Lorcan Brophy dated 10th June 2011 and the documents exhibited thereto;

Affidavit of Fiona Cassidy dated 17th February 2012 and the documents exhibited thereto; an Order of the Circuit Court dated 21st February 2012; plaintiff’s Notice of Change of Name and Address of Solicitor dated 14th February 2012; plaintiff’s Notice of Intention to Proceed dated 23rd February 2015; plaintiff’s Notice of Re-Entry dated 24th March 2015; Verifying Affidavit of John Hughes dated 26th November 2014; 2nd Affidavit of Fiona Cassidy dated 31st November 2014 and the documents exhibited thereto; Affidavit of Brendan Moriarty dated 3rd November 2015 and the documents exhibited thereto;

Order of the Circuit Court dated 9th November 2015; Supplemental Affidavit of Ruth Tracey dated 11th January 2016 and the documents exhibited thereto; 1st Affidavit of Edmund Seery dated 15th January 2016 and the documents exhibited thereto; Affidavit of Service of Una Carter dated 18th January 2016 and the documents exhibited thereto; Order of the Circuit Court dated 20th January 2016; 2nd Affidavit of Brendan Moriarty dated 9th February 2016 and the documents exhibited thereto; 1st defendant’s Notice of Motion to cross-examine dated 7th March 2016; 2nd Affidavit of Edmund Seery dated 7th March 2016; 3rd Affidavit of Edmund Seery dated 11th April 2016 and the documents exhibited thereto;

Order of the Circuit Court dated 21 st April 2016; plaintiff’s Notice of Motion to transfer dated 14th November 2016; 3rd Affidavit of Brendan Moriarty dated 14th November 2016 and the documents exhibited thereto; Affidavit of Service of Karen Molloy dated 21st November 2016 and the documents exhibited thereto; 4th Affidavit of Brendan Moriarty dated 22nd November 2016; Affidavit of Anne Durkin dated 8th February 2018 and the documents exhibited thereto; Affidavit of Service of Bernadette Rafferty dated 15th March 2018 and the documents exhibited thereto;

Affidavit of Service of Francis Craven dated 15th March 2018 and the documents exhibited thereto; 1st defendant’s Notice of Motion to refer to the Courts of Justice of the European Union dated 12th March 2018; 4th Affidavit of Edmund Seery dated 12th March 2018 and the documents exhibited thereto; 1st defendant’s Notice to cross-examine dated 12th March 2018; various Orders of the Circuit Court dated 20th March 2018; 5th Affidavit of Brendan Moriarty dated 31st May 2018 and the documents exhibited thereto; 1st defendant’s re-issued Notices to cross-examine dated 19th June 2018; 1st defendant’s re-issued Notice of Motion to refer to the Courts of Justice of the European Union dated 26th June 2018; 5th Affidavit of Edmund Seery dated 26th June 2018;

1st defendant’s Notice of Motion to access the DAR dated 26th June 2018; 6th Affidavit of Edmund Seery dated 26th June 2018; 7th Supplemental Affidavit of Edmund Seery dated 26th June 2018 and the documents exhibited thereto; Supplemental Affidavit of Helen Dorris dated 3rd July 2018 and the documents exhibited thereto; Affidavit of Service of Dermot Gallagher dated 3rd July 2018 and the documents exhibited thereto; 8th Supplemental Affidavit of Edmund Seery dated 4th July 2018; various Orders of the Circuit Court dated 6th July 2018; Notice of Appeal dated 13th July 2018; and 6th Affidavit of Brendan Moriarty dated 29th April 2019 and the exhibited attached thereto.

10. The following core documentation was referred to in relation to the appeal against the substitution order dated 12th November 2024: Notice of Motion dated 27th June 2024; Grounding Affidavit of Stephen McKeever dated 26th June 2024 and the documents exhibited thereto; Replying Affidavit of Edmund Seery dated 19th September 2024 and the documents exhibited thereto; Order of the Circuit Court dated 26th September 2024; Affidavit of Service of Joe Hastings dated 20th August 2024; Supplemental Affidavit of Stephen McKeever dated 6th November 2024 and the documents exhibited thereto; Witness Summons dated 5th November 2024; Affidavit of Service of Aimee Scott dated 8th November 2024; Affidavit of Ann Seery dated 11th November and the documents exhibited thereto; Order of the Circuit Court dated 12th November 2024; Notice of Appeal dated 15th November 2024; 2nd Affidavit of Edmund Seery dated 13th January 2025 and the documents exhibited thereto; Notice of Motion dated 27th March 2025; Order of the High Court dated 24th March 2025; Ex Parte Motion Docket dated 10th February 2025; Statement of Grounds dated 10th February 2025; Verifying Affidavit of Edmund Seery dated 10th February 2025 and the documents exhibited thereto; Submissions of Edmund Seery in respect of an application for judicial review; Notice of Motion to come off record dated 31st March 2025; Grounding Affidavit of Orla Connolly dated 31st March 2025 and the documents exhibited thereto; Supplemental Affidavit of Eoin Pentony dated 29th October 2025; and Outline Submissions on Behalf of Edmund Seery.

Loan Facility

11. A Loan Facility was advanced to the defendants by Bank of Ireland Mortgage Bank (“the Bank”), the then Lender, on 3rd October 2007 in the sum of €483,000 in respect of the purchase of the property and the period of the agreement was for 30 years. The total amount repayable was €953,438.40 with the annual percentage rate of charge at 5.3% and the cost of the credit or loan being €470,438.40.

Mortgage and Charge

12. The Deed of Mortgage and Charge, whereby the defendants secured this loan facility against the property, giving the lender and its assignees rights to the property in the event of the defendants defaulting, was executed by the Bank and the defendants on 5th March 2008.

13. In Part B of this instrument under the subheading “Definitions”, the ‘all sums nature’ of the mortgage security is reflected in its terms.

14. The terms “collateralise” is defined as meaning “to include in a mortgage pool and execute or otherwise create an Encumbrance over the legal or equitable benefit of this Mortgage including the security hereby created on the Mortgaged Property, the Mortgagee’s rights, estates, title and interests under this Mortgage and the Mortgagee’s rights and interests (whether legal or equitable) under any secured loan for the purpose of securing all and any indebtedness, obligations and liabilities whatsoever or howsoever arising, at any time, both present and future, actual or contingent and whether as principal or surety of the Mortgagee, or of any subsidiary, parent or associated company of the Mortgagee Bank, or (at the discretion of the Mortgagee) of any other person, in favour of any person as part of a collateralisation scheme and cognate words have a corresponding meaning.”

15. Under the sub-heading at para. 8 dealing with “The Security”, para. 8.07(a) of the Deed of Mortgage dated 5th March 2008 (the Home Loan Consent Mortgage and Charge, Deed of Confirmation and Release dated 5th March 2008) provides that “the Mortgagee may at any time and from time to time transfer or enter into contractual arrangements concerning all or part of the legal or equitable benefit of this Mortgage including the security hereby created on the Mortgaged Property, the Mortgagee’s estates, rights, title and interests in the Mortgage and the Mortgagee’s rights and interests (whether legal or equitable under, or legal or equitable benefit of, any secured loan to any person (including, without prejudice to the generality of the foregoing, any subsidiary, parent or associated company of the Mortgagee) on such terms as the Mortgagee may think fit, without notice to the Mortgagor or any other person, whereupon all powers and discretions of the Mortgagee and all other estates, rights, title and interests shall, for so long and to the extent provided for in or on such transfer, be held and be exercisable by the person to whom the Mortgage is transferred”.

16. Under the sub-heading at para. 10 dealing with “Notices”, the Deed of Mortgage dated 5th March 2008 provides at para. 10.01 that “Any notice or demand made by the Mortgagee under this Mortgage or by virtue of any statute shall (without prejudice to any other effective mode of making the same) be deemed to have been properly served if served on the Mortgagor personally or sent by pre-paid ordinary post to the Mortgagor at the Mortgaged Property or at his usual or last known place of abode or business or if the Mortgagor is a body corporate at its registered office or any of its principal places of business, and any such notice sent by pre-paid ordinary post shall be deemed to be received the day following the date of such posting.”

17. At the time of entering upon the Mortgage and Charge, the defendants were legally represented (also referred to in correspondence from the Bank dated 16th March 2016 in relation to the second named defendant’s purported notification of cancellation of the mortgage agreement).

18. Whilst the first named defendant, in opposing the substitution application, submits that the “goodbye” and “hello” correspondence (referred to later in this judgment) were addressed to his wife’s address, and that he did not receive them (as they have been estranged from in or around 2018), and that both the Bank and Mars CFI DAC were on notice of his last address, para. 10 of the Deed of Mortgage and Charge dealing with “Notices” (referred to above) makes clear that there was a contractual agreement whereby the defendants agreed that any notice required to be served could be served at the principal residence. It was a matter for the first named defendant to ensure that any such notices sent to the Mortgaged Property were collected by him.

19. Further, in the Affidavit of Orla Connolly, Solicitor of the Law Centre Athlone, sworn on 31st March 2025, the deponent states that the first named defendant was granted legal aid on 29th April 2019 and that on 21st February 2022, the Board of the Law Centre intended to terminate his Legal Aid Certificate for lack of engagement. Ms. Connolly explains that the Law Centre should have applied to come off record in April-May 2022 when it was clear that the first named defendant did not intend to review or appeal the termination of his Legal Aid Certificate. An order coming off record was subsequently made. The first named defendant states that it was this application to come off record by the Law Centre which triggered him serving his notice of intention to proceed or application to re-enter the appeal and not the fact of the substitution application being issued.

Defendants’ default in repayments

20. Mr. Lawless is the Structured Finance Manager of the Bank and in his Affidavit sworn on 18th May 2010 he has exhibited the proofs and instruments, including inter alia true copies of the Loan Facility, Mortgage and Charge, and the following correspondence and other documentation referred to, which is required for a claim of possession of the property.

21. By letter dated 11th March 2009 from Bank of Ireland Mortgages, exhibited by Mr. Lawless, the defendants were written to and informed that despite previous requests and reminders, they had failed to meet the instalment repayments due on their home loan. The letter stated that the Bank was no longer prepared to accept this situation and called upon the defendants to repay the entire debt within 10 days of the letter. The letter inter alia stated that in default of receipt of such payment together with the interest due, proceedings for recovery of the mortgaged property would be instituted against the defendants without further notice. The loan was therefore ‘called-in’ on 11th March 2009.

Demand for possession of the property

22. By letters dated 16th April 2009 sent by solicitors for the Bank to both defendants, reference was made to the letter dated 11th March 2009 demanding full repayment of the total amount due on foot of the mortgage and the defendants’ failure and refusal to discharge the said sums. The letter demanded possession of the property inter alia as follows:

“In these circumstances therefore TAKE NOTICE that our client NOW REQUIRES POSSESSION of the property referred to in the heading of this letter for the purpose of a sale thereof by them as Mortgagees in possession. We therefore demand, on their behalf, that you quit and deliver up clear vacant possession of the said property to them by clearing the property and delivering the keys thereof to our Clients at New Century House, IFSC, Mayor Street Lower, Dublin 1. FURTHER TAKE NOTICE that if you do not so deliver up possession within seven days of the date of this letter our Clients will, without further notice to you, take all necessary steps to protect and realise their security including, if necessary, enforcing their rights in relation to possession of the property and including, if deemed appropriate, the issue of Court proceedings against you seeking an Order compelling you to deliver possession. Costs incurred in connection with any such steps or proceedings, which may be substantial, will be your responsibility in accordance with the terms of your Mortgage Contract. We would respectfully suggest that you should treat this matter as one of the utmost urgency and that you should immediately take legal advice as to your position”.

Possession proceedings

23. A Civil Bill for Possession and Special Indorsement of Claim then issued on 8th June 2010 and is grounded on the Affidavits of Raymond Lawless sworn on 18th May 2010 and matters are further addressed in the Affidavits of Lorcan Brophy, Senior Credit Manager of the Bank, sworn on 10th June 2011 and the Affidavit of Fiona Cassidy, Manager in the Arrears Support Unit of the Bank, sworn on 17th February 2012.

24. The evidence is that the Bank (and later, Mars CFI DAC), at all times kept the defendants fully aware of their level of indebtedness after proceedings issued on 8th June 2010.

25. In his Affidavit sworn on 10th June 2011, Mr. Brophy states at that date a total sum of €528,731.36 was outstanding on the defendants’ mortgage loan account (including arrears of €69,632.61 and all interest to that date but excluding legal costs).

26. A Statement of Account for the period from 1st January 2010 to 1st February 2012 exhibited by Ms. Cassidy shows that arrears in payments due had increased from €36,873.37 to €83,901.15 and the total sum outstanding was €537,405.72 as of 12th February 2012.

27. Ms. Cassidy swore a second Affidavit which was filed on 25th November 2014 where she avers that at all times, including that in the lead-up to and the prosecution of these proceedings, the Bank had operated in compliance with the Code of Conduct for Mortgage Lenders (“the Code”) and states that when the proceedings were commenced on 8th June 2010, the Bank was fully entitled, under provision 4(d) of the February 2010 edition of the Code (which was then applicable), to issue these proceedings at that time in circumstances where the defendants’ loan account had by then, been in arrears for a period well in excess of 12 months and at the time of the swearing of that Affidavit, the last payment to the account was €400, made on 26th October 2012.

28. The Affidavit detailed other aspects of the Bank’s compliance with the Code and exhibits correspondence with the defendants, which confirms that the Bank had maintained contact with the defendants, through their nominated representatives, and states that at no time since the issue of the proceedings has any alternative repayment arrangement been deemed feasible, agreed or operating.

29. This Affidavit also grounded the Bank’s application to re-enter the proceedings in November 2014 and at paragraph 8 of her Affidavit filed on 25th November 2014, Ms. Cassidy avers that the Bank is “mindful of the difficulties in which the Defendants find themselves and has held back from pressing these proceedings with expedition. However, as appears from the foregoing, the Defendants’ circumstances are such that they cannot sustain or service, let alone repay, the level of debt associated with the Property and therefore the protraction of the proceedings is merely causing their indebtedness to increase further by the accrual and charging of further interest” and sought the orders in terms of the Civil Bill for Possession and the Notice of Re-Entry.

30. A Notice of Intention to Proceed dated 23rd February 2015 was issued by the Bank and in that regard, paragraph (3) of the Affidavit of John Hughes, bank official, dated 26th November 2014 confirms that the details of the defendants’ liabilities to the Bank on their loan were, at all material times, maintained by the Bank in an electronic format on its computerised Mortgage Accounting System (“MAS”) which constituted the “Bankers Book” for the purposes of the Banker’s Books Evidence Acts 1879 to 1959 (as amended).

31. In his Affidavit dated 3rd November 2015, Brendan Moriarty, on behalf of the Bank, refers to and exhibits an original certificate from the Valuation Office dated 2nd November 2015 confirming the rateable valuation of the property as €37.95 and further exhibits an update of the defendants’ loan account.

32. The Affidavit of Ruth Tracey, Legal Case Manager in the Arrears Support Unit of the Bank confirmed that at that date, 11th January 2016, the defendants’ indebtedness was €571,084.95 (and the mortgage arrears were €165,629.38).

33. The supplemental Affidavit of Helen Dorris, Legal Case Manager in the Arrears Support Unit of the Bank, sworn on 3rd July 2018, stated that at that time, the last payment made by the defendants was the payment of €400 made six years previously on 26th October 2012 and that the balance showing as due on the defendants’ called-up Loan account as of 27th June 2018 was €589,263.66 (which at that date was €100,000 more that they originally borrowed in 2007).

Arrears on 31st October 2024

34. As of 31st October 2024, the principal sum outstanding was €378,809.26 (with arrears of €359,189) giving a total of €666,369.78.

Appeal by Mr. Seery

35. In these applications, Mr. Seery, the first named defendant, is the sole appellant and is a litigant in person.

36. He appealed (by Notice of Appeal dated 13th July 2018) against an Order for possession in relation to the subject property made in the Circuit Court on 6th July 2018. (No application to adduce new evidence has been made by, or on behalf of, the parties).

37. Mrs. Ann Seery, the second named defendant, has taken no part in the proceedings and whilst she has sworn two affidavits, she has never denied the debt. In 2018, Mrs. Seery sought to claim that the agreement should be cancelled. It was dealt with by the Bank at the time and the question of cancellation generally is addressed later in this judgment.

38. After the making of the Circuit Court Order on 6th July 2018, the Covid-19 pandemic occurred which delayed matters for a period. Additionally, it is perhaps a fair observation to say that the appeal against the order for possession has not been processed with any alacrity by any of the parties.

39. In terms of the issues raised by the first named defendant, these are set out in the submissions furnished during the hearing of these applications, and in his various Affidavits, including that sworn on 11th April 2016, which included his contentions in relation to the jurisdiction of the court, cancellation of the contract (namely the original loan agreement of 3rd October 2007), conditions precedent, alleged fraud, alleged unfair terms and conditions in consumer contracts, original documentation, cross examination of deponents, alleged manipulation of interest rates and in his conclusion the first named defendant summarises the above points.

Substitution application

40. By Notice of Motion dated 27th June 2024, an application has been brought on behalf of Mars CFI DAC seeking the following orders: (1) an order pursuant to O. 22, r. 4 of the Circuit Court Rules, as amended (“the CCR”) substituting the applicant (and moving party) – Mars CFI DAC

– as the plaintiff in the proceedings and directing that the within proceedings shall be carried on between Mars Finance (Ireland) Designated Activity Company in place of Bank of Ireland Mortgage Bank, as the plaintiff and the defendants; (2) an order pursuant to O. 36, r. 10 of the CCR granting the applicant (Mars CFI DAC) leave to issue execution in respect of the Order for Possession made by the Circuit Court on 6th July 2018; (3) A further order dispensing with service on the defendants of the Circuit Court Order substituting Mars CFI DAC as the plaintiff is also sought and such other consequential orders as the court may direct and costs. This application is grounded on behalf of the applicant and moving party – Mars CFI DAC– by Stephen McKeever, Manager of Mars CFI DAC in an Affidavit which was sworn on 26th June 2024.

41. In opposing the substitution application, the first named defendant takes issue with Mr. McKeever being an employee of another entity within the Mars Group. Further, he takes issue with Mr. McKeever’s means of knowledge and states that he is not employed by Mars CFI DAC but rather Mars Capital Management Ireland DAC and he also claims an alleged breach of data as against the Bank where he says they released data to contractually unrelated parties insofar as Mr. McKeever is concerned.

42. The first named defendant submits that because he has pleaded a counter-claim (and relied on his third Affidavit sworn on 11th April 2016) which includes an alleged plea of fraud, the appropriate order, having regard to the judgment of the Court of Appeal in Pepper Finance Corporation (Ireland) DAC v O’Reilly [2025] IECA 140 is to add Mars CFI DAC to the proceedings rather than substitute it for the Bank.

43. Further, Mr. Seery contends that he did not have an adequate opportunity to reply to the second Affidavit of Stephen McKeever when the matter was before the Circuit Court and that it was served on him two working days before the trial before Her Honour Judge Fergus.

44. He submits that the “goodbye” and “hello” correspondence was addressed to his wife’s address, that he did not receive them, and he submits that both the Bank and Mars CFI DAC were on notice of his last address.

45. He submits that the sale deed was not exhibited.

46. He contends that the notice was dated 3rd October 2023 of a transfer which was dated 2nd October 2023, i.e., subsequent to the date of the alleged transfer, which the first named defendant submits is contrary to s. 28(6) of the Supreme Court of Judicature Act (Ireland) 1887.

47. He argues that he should have been allowed to cross examine the deponents for the Bank and Mars CFI DAC and refers to the witness summons served and the DAR transcript of the substitution application heard before the Circuit Court.

DISCUSSION AND DECISION

48. In addressing the substitution application, first, I do not consider, for the following reasons, that there is any substance in the first named defendant’s complaints in relation to the substitution application.

49. In his Affidavit sworn on 26th June 2024, grounding the substitution application, Mr. McKeever confirms, at para. 1 that he is a manager for Mars Capital Finance Ireland DAC (i.e., Mars CFI DAC – the applicant for substitution), and he is employed by Mars Capital Management Ireland DAC and therefore simply holds separate capacities. He confirms his means of knowledge as a manager of the applicant Mars CFI DAC and he has the capacity to swear the Affidavit as manager. He confirms that Mars CFI DAC is the regulated entity and holds legal title to the loans it services. He confirms that he makes the grounding Affidavit sworn on 26th June 2024 on behalf of Mars CFI DAC with its authority from facts within his own knowledge and from a diligent perusal of its books and records in relation to the defendants and the accounts of the defendants.

50. At para. 2 of the Affidavit sworn on 26th June 2024, Mr. McKeever gives his means of knowledge and states the books and records reviewed and perused by him in preparation of the Affidavit and exhibited were prepared in the ordinary course of business and constitute business records within the meaning of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2000.

51. Further, Mr. McKeever averred at para. 6 of his Affidavit sworn on 26th June 2024 that on 2nd October 2023, Bank of Ireland Mortgage Bank as seller and the applicant (Mars CFI DAC) as buyer, executed a Deed of Transfer whereby Bank of Ireland Mortgage Bank transferred all its rights, legal rights, title, interest, estate, and entitlement, past and present, in and under the Underlying Loans, the Mortgage Assets, and the Finance Documents which included the facility and the security which are the subject of these proceedings to the applicant and moving party (Mars CFI DAC) and he exhibits the Transfer Deed dated 2nd October 2023, which while redacted, includes the property at the following entry “F_XXXX C_XXXX B_XXXX Cloneyheigue Kilbeggan Co. Westmeath” and makes further reference to each of the defendants in the context of the mortgage and loans over the property. Mr. McKeever averred at para. 9 and exhibits the Land Registry Form 56 Transfer of Charge (rules 52 and 105) which concerned the charge over the property, the subject of these proceedings, by which the Bank transferred all its legal rights, title, interest, estate and entitlement, past and present, in the said charge to the applicant and moving party, Mars CFI DAC.

52. Mr. McKeever avers at paragraph 10 of his Affidavit sworn on 26th June 2024 that the Form 56 was lodged for registration with the Property Registration Authority which was completed and states that the applicant and moving party, Mars CFI DAC, is now the registered owner of the said charge. He says and believes that the registration of the applicant, Mars CFI DAC, as owner of the relevant burden on the Folio is conclusive by reason s. 31 of the Registration of Title Act 1964 and he exhibits an updated copy of the Folio 21560F which at Entry No. 1 describes “A plot of ground being part of the Townland of CLONYHAGUE and barony of MOYCASHEL shown as Plan(s) A738W, edged RED on the Registry Map (OS MAP Ref(s) 32R/12, 32/16)”, at Entry No. 2 refers to “15-MAY-2008 D2008NL030462B EDMUND SEERY of Cloneyheigue, Kilbeggan, County Westmeath and ANN SEERY of Cloneyheigue, Kilbeggan, County Westmeath are full owners”, at Entry No. 4 refers to “04-APR-2008 D2008NL019972E Charge for present and future advances repayable with interest. BANK OF IRELAND MORTGAGE BANK is owner of this charge. Note: The ownership of this charge has been transferred. See Entry No.7”, and at Entry No. 7 refers to “23-NOV-2023 D2023LR179965C MARS CAPITAL FINANCE IRELAND DESIGNATED ACTIVITY COMPANY is the owner of the charge registered at Enry No.4.”

53. The “goodbye letters” dated 3rd October 2023 from the Bank to the defendants are referred to by Mr. McKeever at para. 11. This correspondence inter alia notified the defendants of the date of transfer and that the amounts owing to it in respect of the facility had been assigned and sold to the applicant and moving party, Mars CFI DAC. The “goodbye letters” informed the defendants that the sale took effect on 2nd October 2023 and referred to the defendants’ obligations.

54. By letters dated 11th October 2023, the applicant and moving party, Mars CFI DAC, wrote to the defendants by way of “hello letters” and again stated that the transfer had been completed on 2nd October 2023 and referred inter alia to the defendants’ obligations under the contract.

55. In opposing the substitution application, the first named defendant states because the “goodbye letter” was dated 3rd October 2023 of a transfer of assignment which was dated 2nd October 2023, this is contrary to s. 28(6) of the Supreme Court of Judicature Act (Ireland) 1887 because he contends that the correct interpretation of that section requires advance notice being given before the assignment is effective.

56. In Promontoria (Oyster) DAC v Lynn [2022] IEHC 99, the High Court (Simons J.) addressed these provisions, beginning at para. 18 of his judgment, as follows:

“18. Section 28(6) of the Supreme Court of Judicature Act (Ireland) 1877 provides as follows: “Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed,) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor: Provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or any one claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice under and in conformity with the provisions of the Acts for the relief of trustees.””

57. At para. 19 of his judgment, Simons J. stated that s. 28(6) of the 1877 Act provides that “an absolute assignment of a debt or other legal chose in action is “effectual in law” if certain requirements are met. In particular, the assignee (i) will be entitled to pursue all legal remedies without the concurrence of the assignor; and (ii) will have the power to give a good discharge for the debt or legal chose in action. In practical terms, this means that the assignee can pursue proceedings in their own name, without having to join the assignor as a party; and that the debtor may make payments to the assignee safe in the knowledge that such payments go towards reducing the debt and that the assignor no longer has any interest in the debt.”

58. At para. 20 of his judgment, Simons J. referred to the fact that the nature of the notification required by s. 28(6) of the 1877 Act was discussed in AIB Mortgage Bank v Thompson [2017] IEHC 515; [2018] 3 I.R. 172, where the High Court (Baker J.) summarised the principles (at paragraphs 48 to 50, and paragraph 53 of the reported judgment) as follows:

“The authorities suggest that a court will look to the substance and not the form of a notice. I consider that in order to be a valid notice under s. 28(6) the debtor must be given express notice in writing of an assignment of his debt to another, that other must be identified, and the notice must contain sufficient information to enable the debtor to know with reasonable certainty that the assignment did assign the debt so that he may without acting at his peril pay the debt to the identified assignee. The absence of a date is relevant, and this must be so because s. 28(6) expressly provides in its terms that the date of the notice to the debtor is the effective date of the assignment for the purposes of the assignment at law. The 1877 Act does not make provision for who is to give the notice in writing of the assignment […] While a notice does not have to be sent with the intention of constituting a statutory notice, a notice must be sufficiently clear as the legislation requires that the notice be express. This precludes the argument advanced by the plaintiff that it is sufficient that documents sent to a debtor by implication identify an assignment, and I do not consider that s. 28(6) leaves open an argument that a notice which impliedly identifies an assignment can be sufficient, or that a prior general consent performs the statutory function of a notice. A notice must be given, it need not be formal, it need not refer to the statute, but it must be an express notice of an assignment and not merely a claim to the debt by another party. The existence of a prior assignment ought not to be implied. There is nothing in the statute to my mind which suggests that the notice must be contained in one document and for that reason the joinder of documents may be sufficient to constitute a notice of assignment.”

59. Accordingly, contrary to the contention of the first named defendant, the purpose of the notice is that it guarantees that the party who is notified of the assignment has the assurance that any monies paid on foot of the debt will be effectively discharged against the indebtedness or applied to the indebtedness rather than speculating as to whether or not the assignment has occurred.

60. Consequent upon inter alia the aforesaid Transfer Deed, Form 56, the updated Folio, the Goodbye and Hello letters, Mr. McKeever averred that the Bank’s rights to recover on foot of the facility and to enforce the security had been transferred to Mars CFI DAC.

61. At paragraphs 16 to 18, Mr. McKeever addresses the application by Mars CFI DAC for leave to issue execution pursuant to O. 36, r. 10 of the CCR in respect of the Order for Possession made by the Circuit Court on 6th July 2018. He states that the Order for Possession made by the Circuit Court on 6th July 2018 had been subject to an 8 month stay on the execution, it had been granted within the previous six years and at 31st May 2024, the balance outstanding on the defendants’ account was in the sum of €666,369.78 with an arrears balance of €348,513.78 and that the last payment made by the defendants was on 16th January 2024 in the sum of €330.00.

62. Further, insofar as the alleged data breach is concerned, I consider that Mr. McKeever is entitled in his capacity as a manager of Mars CFI DAC and in the context of contested litigation, to address the issues raised in relation to the loans which it owns, including matters pleaded in the Civil Bill for Possession, and responded to by the first named defendant .

63. While the applications before me are de novo hearings, in setting out the factual context and chronology of these appeals, it is noted that the applications by Mars CFI DAC were acceded to by the Circuit Court and on 12th November 2024, the Circuit Court (Her Honour Judge Karen Fergus) made the following orders: an order pursuant to O. 22, r. 4 of the CCR substituting the applicant Mars Capital Finance Ireland Designated Activity Company as the plaintiff in the proceedings and directing that the within proceedings shall be carried on between Mars Finance (Ireland) Designated Activity Company in lieu of Bank of Ireland Mortgage Bank as Plaintiff and the Defendants; an order pursuant to O. 36, r. 10 of the CCR granting the applicant Mars Capital Finance Ireland Designated Activity Company leave to issue execution in respect of the Order for Possession made by the Circuit Court on 6th July 2018; an order that the Plaintiff do recover from the Defendant possession of ALL THAT AND THOSE the property known as Clonyhague (otherwise Cloneyheigue), Kilbeggan, County Westmeath (“the property”) comprised in Folio 21560F of the Register of Freeholders for the County of Westmeath; an order for the costs of the application; an order refusing the Defendants request to issue witness summons and an order directing that the execution of the Possession Order be stayed for four months (the order was made on 12th November 2024 and perfected on 21st November 2024).

64. That order was the subject of a separate appeal taken by Mr. Seery and is also the subject of this composite judgment. The Notice of Appeal is styled Mars Capital Finance Ireland Designated Activity Company (Plaintiff) v Edmund Seery and Ann Seery (Defendants) and has a High Court Appeal No: 2024 264 CA. As with the order for possession, the appellant is solely the first named defendant.

65. The first named defendant also sought to bring judicial review proceedings in relation to the orders made on 12th November 2024 and an order was made by the High Court (Simons J.) on 24th March 2025 putting that application on notice to the respondent in those proceedings in an application entitled “The High Court, Edmund Seery v Mars Capital Finance Ireland Designated Activity Company (Record No. H.JR.2025.0000170)”. Given inter alia that Mr. Seery also had an extant appeal at the time of the judicial review application, I am informed that those judicial review proceedings were later struck out with no order as to costs. The issues raised by Mr. Seery in that judicial review application are referred to later in this judgment.

66. In his supplemental Affidavit dated 6th November 2024, Mr. McKeever states that the balance outstanding as of 31st October 2024 was €378,809.26 (with an arrears balance of (€359,189.88) and that payments were received in the following sums since the loan migration: €330 on 16th October 2023, €330 on 16th November 2023, €330 on 18th December 2023, €330 on 16th January 2024. He states that the monthly instalment at that date was €2,688.55 and that prior to migration the last payment on account was in the sum of €400 on 26th October 2012.

Sequencing

67. The first named defendant seeks to raise an issue in relation to the entitlement of Mars CFI DAC (and its legal advisers) to maintain these applications.

68. As mentioned at the beginning of this judgment, a similar (though not identical) sequence of events, to that which has occurred here, was the subject of recent decisions of the Superior Courts, first, the Court of Appeal in Pepper Finance Corporation (Ireland) DAC v O’Reilly [2025] IECA 140 (Costello P., Whelan J. and Binchy J.) where Whelan J. and Binchy J. agreed with the judgment of Costello P.; second, arising from the judgment of the Court of Appeal, the

decision of the High Court (Simons J.) in Pepper Finance Corporation (Ireland) DAC v O’Reilly [2026] IEHC 16).

69. In answering the initial case stated from the High Court, in Pepper Finance Corporation (Ireland) DAC v O’Reilly [2025] IECA 140, at para. 50, Costello P. held that generally, in circumstances where there has been an assignment of interest in a registered charge, and the underlying debt subsequent to the making of an order for possession by the Circuit Court, but prior to the hearing of an appeal to the High Court, it is appropriate to substitute the transferee/assignee as plaintiff in lieu of the original plaintiff. Costello P. added that there would be cases where it would be appropriate to retain the assignor as a party to the proceedings where, for example, there was a counterclaim against the original plaintiff in relation to which liability could not have been assigned. In such cases, substitution would not be appropriate because the original party remained a necessary party and there is not an identity between the interests of the assignor and the assignee.

70. In Pepper Finance Corporation (Ireland) DAC v O’Reilly [2025] IECA 140, the Court of Appeal (applying Re Worldport Ireland Ltd [2005] IEHC 189) departed from its previous

decision in Irish Bank Resolution Corporation Ltd v Halpin [2014] IECA 3 (where that court had refused the application to substitute Kenmare in place of IBRC and, had rather, added it as an additional party). Costello P. noted (at para. 43) that in the ten years since Halpin had been decided while many assignors had remained a party to the proceedings, in practice they never participated in the proceedings after the date of the assignment and further observed that “In practice the assignee conducts the proceedings and, where judgment has been entered, upholds the decision of the High Court, with one legal team representing both the assignor and the assignee. The continued presence of the assignor in the proceedings is superfluous and potentially merely adds an unnecessary layer of costs.”

71. At para. 48 of the judgment in Pepper Finance Corporation (Ireland) DAC v O’Reilly (Court of Appeal), reference was made to Stapleford Finance Limited v Lavelle [2016] IECA 104 where Costello J. (as she then was), at para. 20 of the judgment of the Court of Appeal, stated that the legislative intent of the Supreme Court of Judicature Act (Ireland) 1877 would be defeated if the rules of court do not provide for the substitution of the assignee of the chose in action as plaintiff in the proceedings commenced by the assignor: “The legislative intent was to dispense with the unnecessary continuance of the assignor in proceedings in which it no longer had any interest. That is not achieved if an assignor is required to remain a party to proceedings where it has assigned its interest in the judgment and underlying loan (and security) post judgment but pending appeal and it is unnecessary to construe the rules in a manner which requires this outcome.”

72. At paras 50 and 51 of her judgment in Pepper Finance Corporation (Ireland) DAC v O’Reilly, Costello P. addresses the circumstances where it is appropriate to substitute the transferee/assignee as plaintiff in lieu of the original plaintiff and explains why the Court of Appeal declined to follow its earlier decision in IBRC v Halpin:

“50. … In general, in circumstances where there has been an assignment of interest in a registered charge, and the underlying debt subsequent to the making of an order for possession by the Circuit Court, but prior to the hearing of an appeal to the High Court, it is appropriate to substitute the transferee/assignee as plaintiff in lieu of the original plaintiff. I say in general because there will be cases where it will be appropriate to retain the assignor as a party to the proceedings, for example if there is a counterclaim against the original plaintiff, liability for which could not have been assigned. In such cases substitution will not be appropriate because the original party remains a necessary party and there is not an identity between the interests of the assignor and the assignee.

51. Applying the decision in Worldport, I would respectfully decline to follow the

decision of this Court in IBRC v Halpin. There was no requirement in Halpin that IBRC remain a plaintiff and there was no bar to substitution of Kenmare in place of IBRC merely because the assignment of the plaintiff’s interest occurred between the granting of the judgments under appeal and the hearing of an appeal. The continuance of the assignee in the proceedings is not required, save in the circumstances I have identified above, and usually substitution of the assignee rather than the addition of the assignee will be the appropriate order.”

73. In the circumstances of the applications before me, I do not consider, for the reasons set out in this judgment, that it is appropriate to retain the Bank as a plaintiff in these proceedings and having regard to the claims and allegations made by the first named defendant in his Affidavits.

74. As mentioned earlier, the first named defendant also sought to bring judicial review proceedings in relation to the orders made on 12th November 2024. I am informed that those judicial review proceedings were later struck out with no order as to costs. For completeness, whilst the appeals before me in relation to the possession order and the substitution application are a de novo hearing and I am not exercising a judicial review jurisdiction, the general theme of the first named defendant’s six complaints in the judicial review application relate to his submission that he was prejudiced by some of the following matters and his contention that the substitution application in the Circuit Court should have been adjourned.

75. The first issue in his judicial review application related to a fair procedures type point where the first named defendant submits that he did not have an adequate opportunity to reply to the second Affidavit of Stephen McKeever when the matter was before the Circuit Court and that it was served on him two working days before the trial before Her Honour Judge Fergus.

76. The second point in the judicial review application related to the wish of the first named defendant to cross examine Mr. McKeever as to his means of knowledge and he makes a general point about witness summonses also in this regard.

77. The third point in the judicial review application related to the first named defendant stating that he was not furnished with the paginated booklet used during the substitution application in the Circuit Court and, therefore, he could not follow the application.

78. Fourthly, the first named defendant states that he was furnished with only two pages of an Affidavit of the second named defendant which was being referred to and the matter should have been adjourned.

79. The first named defendant’s fifth point in his judicial review application is that the Circuit Court immediately determined the substitution application after having heard from counsel for Mars CFI DAC and he was not given an opportunity to be heard.

80. The sixth point in the first named defendant’s application for judicial review relates to what he says was counsel’s application to amend the original possession order and replace Bank of Ireland Mortgage Bank with Mars Capital Finance Ireland DAC to which he says that he had no prior notice.

81. Further, and also in his response to the possession application made by Mars CFI DAC, as referred to earlier, the first named defendant submits that because he has pleaded a counterclaim (and relied on his third Affidavit sworn on 11th April 2016), having regard to the judgment of the Court of Appeal in Pepper Finance Corporation (Ireland) DAC v O’Reilly [2025] IECA 140, the appropriate order is to add Mars CFI DAC to the proceedings rather than substitute it for the Bank.

82. In his Affidavit sworn on 11th April 2016, for example, the first named defendant raised a number of arguments in relation to (a) the Circuit Court jurisdiction at paras 6 to 19, the cancellation of the contract at paras 20 to 33, conditions precedent at paras 34 to 35, alleged fraud at paras 38 to 48, alleged unfair terms and conditions in consumer contracts at paras 49 to 54, original documentation at paras 55 to 56, cross-examination of the various deponents at paras 57 to 64 and alleged manipulation of interest rates at paras 68 to 75.

83. These matters are responded to inter alia in the fourth Affidavit sworn by Brendan Moriarty, Solicitor in Whitney Moore, on behalf of the Bank on 22nd November 2016 from his own knowledge and from instructions received from Amy O’Reilly in the Bank’s Mortgage Arrears legal case management unit. Mr. Moriarty objects that the first named defendant’s arguments amount to legal argument and bare assertions but nevertheless seeks to address them.

Jurisdiction

84. The issue in relation to the jurisdiction of the Circuit Court was dealt with previously by Mr. Moriarty. In his second Affidavit, sworn on 9th February 2016, on behalf of the Bank, Mr. Moriarty had addressed inter alia the description of the Bank and the description of the property in the Civil Bill and the jurisdiction of the Circuit Court (being the jurisdiction which I am exercising in this appeal). In this regard, Mr. Moriarty addresses matters of jurisdiction for applications for possession and refers inter alia to section 22 and the Third Schedule of the Courts (Supplemental Provisions) Act 1961, the fact that the first named defendant previously averred that the property was not rated and that, in any event, the Bank had made an application to the Valuation Office pursuant inter alia to s. 67 of the Valuation Act 2001 which was assessed at €37.95 well below the threshold of €253.95 and which certificate had been previously exhibited by Mr. Moriarty.

85. For completeness, insofar as any challenge to my jurisdiction is being maintained by the first named defendant, I am satisfied that these matters are correctly before this court, sitting as an appellate court from the Circuit Court and adopting the jurisdiction of the Circuit Court in addressing the applications for possession of the property and the substitution application. In summary, the subject property’s rateable valuation is €37.95, and no issue arises in the context of the jurisdiction of the Circuit Court, these proceedings and the Civil Bill for Possession and Special Indorsement of Claim issued on 8th June 2010.

Cancelation, request for preliminary reference and further copy of facility letter

86. Next, the alleged unilateral cancellation of the loan and mortgage contract is sought to be raised (and separately this also subtends the application by the first named defendant for a preliminary reference to the Court of Justice of the European Union (“CJEU”) pursuant to Article 267 of the Treaty on the Functioning of the European Union (“TFEU”)).

87. Mr. Moriarty states that the since-repealed Directive 85/577/EEC (the ‘Doorstep Selling Directive’) did not apply and he refers to the defendant’s Affidavit which he says confirms that there was no doorstep selling (and nor was this a contract as per Article 1 of the Directive which only applied to contracts concluded during an ‘excursion’ organised by the seller away from its business premises).

88. He states that the defendants, rather, chose and appointed an independent professional mortgage broker to advise them and to prepare and make their loan application to the Bank which resulted in a Loan Offer Letter in relation to which the defendants engaged a solicitor to advise them on the loan terms when they decided to accept, sign and return the Loan Offer Letter.

89. Further, the letter from the second named defendant dated 15th January 2016 to the Head of Compliance at the Bank in relation to her purported entitlement to cancel the contracts and her reference to Directive 85/577/EEC and the European Communities (Cancellation of Contracts Negotiated away from Business Premises) Regulations 1989 (S.I. 224/1989) also states that “It may also be beneficial for both parties to meet, to settle any outstanding matters between us. If a meeting is necessary, I may be contacted, in writing only, at the above address.”

90. In the application before me, it was submitted on behalf of Mars CFI DAC that at no point did the defendants deny receiving the loan and nor did they claim the entire of the moneys loaned plus the interest were ever repaid. It was submitted that this letter from the second named defendant exemplified an acknowledgement that the defendants’ liability was due and owing.

91. The Bank replied to the second named defendant by letter dated 20th January 2016 stating inter alia that Directive 85/577/EEC had been replaced by the Consumer Rights Directive 2011/83 and the European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004, as amended. The correspondence stated that as part of the mortgage approval process and prior to drawdown of the mortgage on or about 15th February 2008, the second named defendant received all information that the Bank was required to provide in compliance with their obligations in Irish and EU law. It was stated that the second named defendant was provided with information regarding distance contracts in accordance with the Distance Marketing Regulations and was also provided with details of all contractual terms and conditions and the total amount repayable under the mortgage loan and that she had the benefit of legal advice prior to signing the Mortgage Loan Offer Letter. The letter stated that as outlined in the Mortgage Loan Offer Letter, the second named defendant did not have any cancellation rights as the mortgage was a housing loan which was specifically excluded under Regulation 12(d) of the Distance Marketing Regulations and that the terms of the Mortgage Loan Offer Letter remained fully enforceable and the amount owing to the mortgage loan was fully repayable by her. The letter enclosed, for information purposes, a copy of the letter signed by the second named defendant and enclosures contained therein. The letter further stated that if the second named defendant was not satisfied with this response, she could refer her complaint to the Financial Services Ombudsman’s Bureau, and the address was set out. However, it appears that no such complaint was ever made.

92. The second named defendant replied on 29th February 2016 stating that her reply was not a complaint but a notice to the Bank that she had decided to exercise her right to cancel the agreement between them with immediate effect which was in turn responded to by the ASU Complaints Team of the Bank on 16th March 2016, which referred to the response dated 20th January 2016 which had been drawn up with the benefit of oversight from the Bank’s legal services who had confirmed that the second named defendant did not have a right to cancel the loan, as was set out previously and further referred to the fact that she had the benefit of legal advice from a firm of solicitors prior to the signing of the Mortgage Loan Offer Letter and suggested that she should contact her legal representatives/solicitor and seek independent legal advice. The first named defendant brought a motion dated 12th March 2018 in the Circuit Court seeking a referral to the CJEU for a preliminary reference as to the applicability of Directive 85/577/EEC in respect of the contracts and this was refused by order of Her Honour Judge Flanagan on 20th March 2018 and this is further addressed in the first named defendant’s fifth Affidavit sworn on 26th June 2018.

93. As can be seen from the aforementioned, a number of the points raised by the first named defendant are inter-related.

94. The first named defendant submits that after raising the issue of the cancellation of the contract, another facility letter was produced which had extra pages in relation to cancellation. However, the supplemental Affidavit of Brendan Moriarty, solicitor sworn on 29th April 2019, sets out the circumstances in which the original Loan Offer Letter which had gone missing was found, placed safely with the file in relation to these proceedings and made available for inspection by the defendants. Whilst there is a difference in the extent of documentation exhibited (in tab

22 compared to tab 66 of the Book of Pleadings), the actual loan documents dated 3rd October 2007 and signed by the defendants are the same and there is no basis to the first named defendant’s arguments in this regard.

95. Further, the front page of the Offer Letter dated 3rd October 2007 describes “Mr. Edmund Seery and Mrs. Ann Seery of Cloneyheigue Kilbeggan Co. Westmeath (the “Borrower”).”

96. In PART 5-THE GENERAL CONDITIONS, under para. 1 ‘Interpretation and General’, it states that “any reference to “Borrower” means the person or persons named as the Borrower on the front page of this Offer Letter and where there are two or more persons, each are jointly and severally liable to the Lender and any reference to “Borrower” shall include a reference to each and every such person and their personal representatives”.

97. In that part of the documentation referenced as ‘European Standardised Information Sheet’ “The Borrower” is described as “Mr. Edmund Seery and Mrs. Ann Seery of Cloneyheigue Kilbeggan Co. Westmeath (the “Borrower”)”. Further in the penultimate two pages (behind tab 66) under the sub-heading ‘Your right to cancel’, it is stated that “In accordance with Regulation 12(d) of the European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004 the Borrower does not have the option to cancel the Loan”.

98. In KBC Bank Ireland PLC v Brennan [2020] IEHC 247, the High Court (MacGrath J.) addressed this issue at paras 35 to 40 of his judgment as follows:

“Consumer Rights Directive 2011/83/EC, repealing Council Directive 85/577/EEC and Directive 97/7/EC

35. With regard to the contention that the defendant is entitled to cancel the agreement because it is prohibited by the distant marketing Directive i.e. the Consumer Rights Directive 2011/83/EC, which repealed Council Directive 85/577/EEC and Directive 97/7/EC (transposed through S.I. 224/89), Mr. Brennan submits that these provisions apply primarily because the agreement and mortgage were not signed in a building society office, rather he signed the documents in the brokers office after a meeting in a coffee shop in Dublin. He maintains, therefore, that he is entitled to exercise his rights under the Directive and has cancelled the contract. He submits that he was never advised of a cooling off period nor did he receive a letter informing him of the right to cancel the contract within seven days.

36. The Directive specifically applies to the supply of goods and services to a consumer. Article 3(2)(a) of the Directive provides that it shall not apply to any contract for the construction, sale and rental of immovable property or contracts concerning other rights relating to immovable property. There are a number of excluded categories provided for in Article 3. This provides in so far as is relevant:- “This Directive shall not apply to contracts:

(a) for social services, including social housing, childcare and support of families and persons permanently or temporarily in need, including long-term care; …

(e) for the creation, acquisition or transfer of immovable property or of rights in immovable property;

(f) for the construction of new buildings, the substantial conversion of existing buildings and for rental of accommodation for residential purposes.” (emphasis added) Thus, it does not appear to me that these Regulations are applicable.

Fair Procedures and Summary Proceedings

37. It is argued by the defendant that a process whereby a person’s home may be repossessed in a summary manner does not adequately vindicate his right to a fair hearing, is a disproportionate interference and would result in homelessness. The

decision in Connors v. UK [2004] ECHR 223 is called in aid. Implicit in the argument is that where an order for possession is sought in a summary manner the absence of a plenary hearing violates the rights of the homeowner because of the threat of homelessness.

38. In my view, the decisions relied upon are not authority for such a wide sweeping proposition. The procedures and legal principles applicable on an application for summary possession are such that if an arguable ground of defence is raised, then the matter must be transferred to plenary hearing. The threshold is low. It has been reiterated on many occasions, in the context of applications for summary orders, that the constitutional rights of the parties to litigate, prosecute and defend must be respected. Thus, the court must ensure that where such an application is brought if there are arguable grounds of defence, the case ought to be transferred to plenary hearing. The court must be satisfied on an application for summary possession that it is clear that there is no defence. See the principles outlined in decisions such as Harrisrange v. Duncan [2003] 4 I.R. 1.

39. This safety mechanism is consistent with the protection of the Constitutional rights of both parties. Procedurally, Mr. Brennan has been before the County Registrar, the Circuit Court (on two occasions) and this court. The procedures applied permitted him to advance every conceivable point of defence that might arise. I am not satisfied that any procedural unfairness has been established.

40. Further, to adopt the reasoning of McDermott J. in Davis [Permanent TSB Plc Formerly Irish Life and Permanent Plc v Davis and Davis [2019] IEHC 184], the proceedings concern inter partes litigation involving an application under s. 62(7) of the Act of 1964. That Act enjoys a presumption of constitutionality. In accordance with that provision the registered owner of a charge has the right to seek and obtain an order for possession if relevant proofs are established. The rights and obligations sought to be enforced are those enjoyed by and imposed upon the plaintiff and the defendant pursuant to an agreement freely entered into by them. As McDermott J. also observed, the court is not permitted to act solely on the basis of sympathetic factors.

That it is, may be, or has become apparent with the passage of time, that the monies advanced in truth exceeded the capacity of the borrower to repay is most unfortunate. It does not appear to me, however, on the basis of the arguments advanced and in the circumstances of this case, that this affects the rights of the parties under the loan agreement and mortgage”.

99. Further, the observations of McDermott J. in Permanent TSB Plc Formerly Irish Life and Permanent Plc v Davis and Davis [2019] IEHC 184 which were adopted by MacGrath J. in KBC Bank Ireland PLC v Brennan [2020] IEHC 247, particularly in para. 40 in the quoted extract above, are applicable to the arguments raised by the first named defendant. I consider that there is no basis to the first named defendant’s complaints in relation to these matters. There is, therefore, no basis for the making of a preliminary reference to the CJEU.

Conditions Precedent

100. In the Mortgage Loan Offer Letter dated 3rd October 2007, at Part 3 – Conditions precedent, para. (a)(i) which is referable to the first defendant refers to “All documentation must be to the satisfaction of the Lender” and para. (c)(ii) which is referable to conditions precedent applying to the load provides that “A valuation (including a photograph) of the Property for mortgage purposes (see Clause 2(c) of Part 5 – The General Conditions) showing the valuation in an amount of not less than EUR 600,000 and which must be on terms acceptable to the Lender. A final inspection will be required from properties under construction/undergoing significant repair. The Lender may raise further conditions after receipt of the valuation. To qualify for the Lender’s Quickstart 100 product, properties must have at least two bedrooms.”

101. The first named defendant seeks to rely on the conditions precedent at paras 34 to 37 of his Affidavit sworn on 11th April 2016 and makes reference to the decision of the High Court (Charleton J.) in IRBC v Cambourne Investments Incorporated and Others [2012] IEHC 262, [2014] 4 I.R. 54. In his fourth Affidavit sworn on 22nd November 2016, Mr. Moriarty states that the decision of the High Court in Cambourne is in fact an authority which is against the first named defendant’s proposition and that judgment in that case was ultimately entered for the plaintiff bank as against all of the defendants with the court confirming that conditions inserted into a contract exclusively for the benefit of one party can be waived by that party and further stating that once lent, money was repayable.

102. I do not consider that there is any basis for the first named defendant’s argument in this regard in response to the application for possession sought by Mars CFI DAC. The conditions apply to the defendants and not the lender. They date from 3rd October 2007. From in or around 2007/2008 the defendants received and had the benefit of the loan and in acquiring the property, the defendants executed charges over that property in favour of the lender, and the mortgage was registered as a charge in favour of the lender over the property. In so much as the first named defendant seeks to raise conditions precedent in an Affidavit sworn on 11th April 2016, he does so eight and a half years after the loan was advanced and when he was legally represented.

Allegation of fraud by the first named defendant

103. In his Affidavit sworn on 16th January 2016, at paragraph 7, the first named defendant alleges fraud and refers to addressing “the kernel of the matter between myself and the plaintiff [i.e., the Bank], namely the fraud perpetrated at the inception of this agreement by agents for the bank, which I believe vitiated the agreement that the bank are now trying to ground their claim for possession upon, at a later date.” At para. 24 of his Affidavit, the first named defendant alleges that the Bank did not come before the court with clean hands and the legal representatives were aware of it.

104. These allegations are addressed initially in the second Affidavit of Brendan Moriarty, solicitor of Whitney Moore solicitors, sworn on 9th February 2016, on behalf of the Bank. The allegations are described by Mr. Moriarty as very serious and neither particularised nor substantiated. He states and believes, having been informed by counsel that when the proceedings were before the Circuit Court on 20th January 2016, counsel and the Court had requested the first named defendant to inform the court what “fraud” had allegedly been perpetrated and having refused to do so, the Circuit Court (Her Honour Judge Flanagan) granted the first named defendant six weeks to swear, file and serve an Affidavit setting out full and particular details of the fraud alleged by him and three weeks thereafter for the Bank to reply. At the time of the swearing of Mr. Moriarty’s Affidavit on 9th February 2016, as the first named defendant had not at that time delivered an Affidavit, Mr. Moriarty did not propose to address what he described as “these wholly improper allegations, other than to say that they are rejected outright.”

105. In relation to those allegations of fraud which were subsequently set out at paras 38 to 48 of the first named defendant’s Affidavit sworn on 11th April 2016, Mr. Moriarty Solicitor, in his fourth Affidavit sworn on 22nd November 2016, states that these allegations show no wrongdoing on the part of the Bank and indicate, rather, that the defendants, at the urging of their mortgage broker, approached a number of Valuers until they could find one prepared to provide a sufficiently optimistic valuation on the subject property for them to convey to the Bank.

106. Despite being requested to particularise his allegations, which he is required to do, the first named defendant has set out no basis for the allegation that the second of three valuations (the first was for €450,000, the second was for €450,000 and the third was for €560,000) not being contained in his data access request, allegedly pointed to a named official intentionally withholding material information from the Bank and its underwriters (the official referred to by the first named defendant was an employee of the Governor and Company of the Bank of Ireland).

107. I do not consider that the allegation of fraud made by the first named defendant forms any basis for a defence or response to the possession application or the substitution application.

Alleged unfair terms and conditions in Consumer Contracts

108. The terms and conditions in the contractual documentation in this case reflect the standard documents used in such transactions. Further, the defendants were legally advised when they entered into these arrangements and there is no basis for the first named defendant’s complaints in this regard.

Alleged manipulation of interest rates

109. The first named defendant at paras 65 to 67 of his Affidavit of 11th April 2016 makes a generalised allegation against “the main retail banks in Europe” and “Libor base rates” in seeking to argue uncertainty in relation to what level of interest repayment may be due to the lender. This allegation has no relevance to the applications for possession and substitution.

CONCLUSION

110. For the reasons set out in this judgment, therefore, I do not consider that there is a basis to the claims alleged and assertions made by the first named defendant which would warrant not making an order substituting Mars CFI DAC as the plaintiff in these proceedings and granting Mars CFI DAC possession of the subject property. Further, having regard to the matters raised by the first named defendant, I do not consider that he has established any defence or any arguable grounds of defence which would warrant the application for possession being transferred to plenary hearing.

111. Insofar as any ancillary arguments are being maintained in this respect, I do not consider that it is necessary that the various deponents in both the possession application and the substitution application be made available for cross-examination in order to determine these applications.

112. The underlying proceedings seek to recover possession of the subject property. As set out earlier in this judgment, I am satisfied that Bank of Ireland Mortgage Bank as seller and Mars CFI DAC as buyer, executed a Deed of Transfer whereby Bank of Ireland Mortgage Bank transferred all its rights, legal rights, title, interest, estate, and entitlement, past and present, in and under the Underlying Loans, the Mortgage Assets, and the Finance Documents which included the facility and the security which are the subject of these proceedings to Mars CFI DAC and that the Transfer Deed was dated 2nd October 2023.

113. Similar arguments to those raised by the first named defendant were canvassed in AIB plc and Everyday Finance DAC v Doran [2025] IEHC 515. In that case, the High Court (Owens J.) reviewed the applicable case law, including the decision of the High Court (Charleton J.) in IRBC v Cambourne Investments Incorporated and Others [2012] IEHC 262, [2014] 4 I.R. 54, (referred to earlier) and the authorities referred to in that judgment and observed at para. 213 that “Non-satisfaction of a proof which the bank was contractually entitled to insist on as a pre-condition to permitting draw-down of Thomas Doran’s loans did not necessarily result in automatic termination of the contracts embodied in the facility letters: see O’Connor v Coady ([2004] IESC 54) [2004] 3 I.R. 271 per Geoghegan J. at p. 278 para. [11]” and, therefore, non-compliance with preconditions does not automatically terminate a contract.

114. In Lakeland Agri Ltd v Hand [2021] IEHC 13 the High Court (Simons J.) addressed, on the facts of that case, the question of the application of the subset of the jurisprudence on summary summons proceedings which addresses the distinction between a cross-claim which amounts to a defence, and one which is merely a counterclaim and referred to McGrath v O’Driscoll [2006] IEHC 195; [2007] 1 I.L.R.M. 203, and Moohan v S. & R. Motors (Donegal) Ltd v Bradley Construction [2007] IEHC 435; [2008] 3 I.R. 650.

115. At para. 18 of his judgment, Simons J. stated that the overall approach to be taken to a case involving a cross-claim was summarised by Clarke J. (as he then was) in Moohan v S. & R. Motors (Donegal) Ltd v Bradley Construction [2007] IEHC 435; [2008] 3 I.R. 650, at pp. 656/657, as follows:

“(a) it is firstly necessary to determine whether the defendant has established a defence as such to the plaintiff’s claim. In order for the asserted cross-claim to amount to a defence as such, it must arguably give rise to a set off in equity and must, thus, stem from the same set of circumstances as give rise to the claim but also arise in circumstances where, on the basis of the defendant’s case, it would not be inequitable to allow the asserted set off;

(b) if and to the extent that a prima facie case for such a set off arises, the defendant will be taken to have established a defence to the proceedings and should be given liberty to defend the entire (or an appropriate proportion of) the claim (or have same, in a case such as that with which I am concerned, referred to arbitration);

(c) if the cross-claim amounts to an independent claim, then judgment should be entered on the claim but the question of whether execution of such judgment should be stayed must be determined in the discretion of the court by reference to the principles set out by Kingsmill Moore J. in Prendergast v. Biddle (Unreported, Supreme Court, 31st July, 1957).”

116. On the facts of that case, Simons J. had further regard to the judgment of Kingsmill Moore J. in Prendergast v Biddle (Unreported, Supreme Court, 31st July 1957) and held that the nature of the counterclaim sought to be advanced by the defendant in that case was simply “too vague”. The Court granted judgment which order did not preclude the defendant from pursuing, in separate proceedings, any claim for damages arising out of the alleged breach of the haulage services contract which was at issue in that case, as it amounted to an independent claim. In AIB plc and Everyday Finance DAC v Doran [2025] IEHC 515, the High Court (Owens J.) observed at para. 69 that a contract may be treated by a party who is not in breach as terminated where that breach which is sufficiently serious to justify refusal of further performance. Where a contract has been substantially performed this is not possible and the remedy of the party not in breach is confined to damages.

117. A counterclaim is entirely independent of the actual claim, which in this case is a possession application in the circumstances set out in this judgment. In this case, there is no dispute but that the defendants received the loan in 2008, used the sums that were loaned and had a contractual obligation to repay those sums but that within a year of taking out the mortgage and receiving the loan, the defendants had defaulted. The claims now alleged by the first named defendant in response to the substitution and possession applications are not made out.

118. For a period of approximately 17 years, the defendants have had the benefit of moneys loaned to them and failed to make the contractual repayments as per the loan agreement. The loan was called-in on 11th March 2009 when the defendants were written to and informed that despite previous requests and reminders, they had failed to meet the instalment repayments due on their home loan. The letter called upon the defendants to repay the entire debt within 10 days of the letter and stated that in default of receipt of such payment together with the interest due, proceedings for recovery of the mortgaged property would be instituted against the defendants without further notice.

119. By letters dated 16th April 2009, sent to both defendants, reference was made to the previous correspondence dated 11th March 2009 demanding full repayment of the total amount due on foot of the mortgage and the defendants’ failure and refusal to discharge the said sums. The letter to the defendants dated 16th April 2009 demanded possession of the subject property. Thereafter, and at all material times, the defendants were written to and notified of the increasing level of indebtedness by reference to statements of account.

120. It has been established at the de novo hearing of these applications over two days in October 2025 that Mars CFI DAC, as the applicant and moving party, is the registered owner of the Mortgage and Charge over the property at Cloneyheigue, Kilbeggan, County Westmeath, comprised in Folio 21560F of the Register of Freeholders, County Westmeath and more particularly described as including a plot of ground being part of the Townland of CLONYHAGUE and barony of MOYCASHEL shown as Plan(s) A738W, edged RED on the Registry Map (OS MAP Ref(s) 32R/12, 32/16) as per the statement of the law set out in Bank of Ireland Mortgage Bank v Cody [2021] IESC 26, [2021] 2 I.R. 381 (the Supreme Court, Baker J.), ss. 62, 62(6), 62(7) of the Registration of Title Act 1964, s. 1 of the Land and Conveyancing Law Reform Act 2013 and the decision of the High Court (Woulfe J.) in Start Mortgages DAC v Ryan and Ryan [2021] IEHC 719.

121. The Civil Bill for Possession and Special Indorsement of Claim issued on 8th June 2010 is in compliance with the Rules of the Circuit Court (S.I. 261/2009), including O. 5B of the CCR.

122. The Register of Freeholders for the County of Westmeath confirms that Mars CFI DAC is the owner of the Mortgage and Charge on the Folio 21560F which at Entry No. (1) described “A plot of ground being part of the Townland of CLONYHAGUE and barony of MOYCASHEL shown as Plan(s) A738W, edged RED on the Registry Map (OS MAP Ref(s) 32R/12, 32/16…), at Entry No.(2) refers to 15-May-2008 D2008NL030462B-EDMUND SEERY of Cloneyheigue, Kilbeggan, County Westmeath and ANN SEERY of Cloneyheigue, Kilbeggan, County Westmeath are full owners, at Entry No. (4) refers to 04-APR-2008 D2008NL019972E Charge for present and future advances repayable with interest. BANK OF IRELAND MORTGAGE BANK is owner of this charge. Note: The ownership of this charge has been transferred. See Entry No.7, and at Entry No. (7) refers to 23-NOV-2023 D2023LR179965C MARS CAPITAL FINANCE IRELAND DESIGNATED ACTIVITY COMPANY is the owner of the charge registered at Enry No.4.”

123. Accordingly, s. 31 of the Registration of Title Act 1964 provides that the Register is conclusive evidence of any right, privilege, appurtenance or burden appearing on the register.

124. I am, therefore, satisfied that Mars CFI DAC, as the party moving the application for possession of the subject property, is the registered owner of the subject Mortgage and Charge, that its right to possession has arisen and has become exercisable and that it is the appropriate plaintiff who is entitled to maintain these proceedings and is thereby entitled to an order of possession of the subject property: see the decision of the Court of Appeal in Tanager DAC v Kane [2018] IECA 352 [2019] 1 I.R. 385, Start Mortgages DAC v Ryan and Ryan [2021] IEHC 719, Bank of Ireland Mortgage Bank v Cody [2021] IESC 26, [2021] 2 I.R. 381.

125. The defendants took out the initial loan in 2008 and went into default in their repayments in 2009 and the right to possession of the property vested in the owner of the Mortgage and Charge has arisen and has become exercisable. Extremely modest repayments were made and the indebtedness increased year on year over a 17-year period and including the period of these proceedings. The defendants have not in fact disputed that they are unable to address their indebtedness. As the owner of the loans, Mars CFI DAC are entitled to be substituted for the Bank and are further entitled to an order of possession of the subject property.

126. I therefore dismiss the first named defendant’s appeals against the order of the Circuit Court made on 6th July 2018 in Record No: 2018/269CA and the order of the Circuit Court made on 12th November 2024 in Record No: 2024/264CA.

127. I shall make orders substituting Mars Capital Finance Ireland Designated Activity Company as the plaintiff in the proceedings in Record No: 2018/269CA and Record No: 2024/264CA against the defendants and I shall further order that Mars Capital Finance Ireland Designated Activity Company do recover from the defendants possession of ALL THAT AND THOSE the property known as Clonyhague (otherwise Cloneyheigue), Kilbeggan, County Westmeath (“the property”) comprised in Folio 21560F of the Register of Freeholders for the County of Westmeath.

PROPOSED ORDERS

128. Accordingly, subject to discussing the precises terms of the orders with the parties, I propose to make the following orders:

(i) An order pursuant to O. 22, r. 4 of the Circuit Court Rules substituting Mars Capital Finance Ireland Designated Activity Company as the Plaintiff in the proceedings in Record No: 2018/269CA and (if required) Record No: 2024/264CA (and, insofar as is necessary, directing (and/or deeming) that the within applications are carried on (and/or were conducted) as between Mars Finance (Ireland) Designated Activity Company (in lieu of Bank of Ireland Mortgage Bank) as Plaintiff and against the Defendants);

(ii) An order that Mars Capital Finance Ireland Designated Activity Company do recover from the Defendants possession of ALL THAT AND THOSE the property known as Clonyhague (otherwise Cloneyheigue), Kilbeggan, County Westmeath (“the property”) comprised in Folio 21560F of the Register of Freeholders for the County of Westmeath.

129. I shall discuss with the parties the terms of these proposed orders (including the period of any stay on the possession order) and any ancillary or consequential matters which arise, (including whether an order is required pursuant to O. 36, r. 10 of the CCR) and the question of costs.

130. I shall put the matter in for mention on Wednesday 25th February 2026 at 10:30am.

CONLETH BRADLEY

13th February 2026