Pepper Finance Corporation (Ireland) DAC v. Meredith & Anor (No. 2)

Bank of Ireland Mortgage Bank v. Cody (No. 1) [2021] IESC 26 on proofs for order of possession applied:

1. ‘that the plaintiff is the owner of the charge’;
2. ‘that the right to seek possession has arisen and is exercisable on the facts.’ [31] Bank of Ireland Mortgage Bank v. Cody (No. 2) [2025] IEHC 419 applied [33].

Pepper Finance Corporation (Ireland) DAC v. Hayes & Hayes [2025] IEHC 692 applied: ‘GE Capital, Pepper Finance Corporation (Ireland) Ltd and Pepper Finance Corporation (Ireland) DAC are the same legal entity’ [109].

1. 2.1

   Sections 30(6) (change of name) and 63(12) (re-registration as designated activity company) of the Companies Act 2014 applied: ‘a change of name, or re-registration of an existing private company as a designated activity company, does not affect any rights or obligations of the company nor render defective any legal proceedings by or against it.’ [35] Name changed from GE Capital to Pepper in 2012 [87]; re-registered as a designated activity company in 2015 [91]. Pepper Finance Corporation (Ireland) DAC v. Moloney [2023] IECA 161 applied [36].

2. 2.2

   Section 63(12) self-executing: ‘legal entitlement to continue proceedings following the change in status of a company is expressly provided for under s.63(12) of the 2014 Act, and that this provision appeared to be self-executing’ [39]. Start Mortgages DAC v. Ryan [2021] IEHC 719, First Active Plc v. Cunningham [2018] IESC 11 and Start Mortgages Designated Activity Company v. Kavanagh [2019] IEHC 216 applied [39].

Section 31 of the Registration of Title Act 1964 on conclusiveness of register applied: ‘Its correctness cannot be challenged by way of defence to possession proceedings but only rectification proceedings which have not been brought.’ [111] ‘[T]he fact that it failed to [update the register] did not give rise to any doubt or issue as to the identity of the charge holder.’ [38] Tanager v. Kane [2018] IECA 352, [2019] 1 I.R. 385 [37] and Pepper Finance Corporation (Ireland) DAC v. Moloney [2023] IECA 161 [38] applied.

Legal title sufficient for possession: ‘where a plaintiff institution proves that it retains legal title to a loan and is the registered owner of the charge, questions concerning the beneficial ownership of the underlying debt do not deprive it of standing or the legal right to seek possession of a secured property.’ [59]

1. 4.1

   Section 28(6) of the Supreme Court of Judicature Act (Ireland) 1877 applied: ‘The absence of a written notice means only that any assignment of the beneficial interest was equitable and that legal title, and the correlative right of enforcement, remained vested in Pepper’ [49]. AIB Mortgage Bank v. Thompson [2018] 3 I.R. 172 and Pepper Finance Corporation Ireland DAC v. Farrelly & Murtagh [2022] IEHC 272 applied [49]–[51].

2. 4.2

   Section 64 of the Registration of Title Act 1964 inapplicable, held as in Pepper Finance Corporation (Ireland) DAC v. Moloney [2023] IECA 161 on same transaction: ‘Court of Appeal rejected the contention that the Windmill agreement was a transfer of the charge within the meaning of s. 64 of the 1964 Act’ [47].

3. 4.3

   Only Plaintiff/Respondent paid: ‘accepted that the Defendants had only ever made payments to Pepper’ and ‘confirmed that no entity, other than Pepper, had asked the Defendants to repay the money which was owed.’ [20]

4. 4.4

   Pepper Finance Corporation (Ireland) DAC v. Jenkins [2018] IEHC 485 on double suits applied: ‘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’ [48].

5. 4.5

   Tax treatment irrelevant: ‘The reference in the Defendants’ pleaded cases to an anonymised determination of the Tax Appeals Commission does not avail of the Defendants … the tax treatment of a transaction is not dispositive of the legal title to a registered charge in an application for possession.’ [100] Farrelly & Murtagh, Moloney and Hayes applied [100].

6. 4.6

   Pepper entitled to possession: ‘Pepper was entitled to enforce the loans and charges as the legal owner of the charges and the Defendants’ contentions that it was not the beneficial owner had no bearing on that issue.’ [57] Pepper Finance Corporation (Ireland) DAC v. Egan [2025] IEHC 31 [52]–[53] and O’Callaghan v. Pepper Finance Corporation (Ireland) DAC [2026] IEHC 189 [55]–[58] applied; Freeman & Freeman v. Bank of Scotland plc & Ors [2016] IESC 14 [41], Kearney v. KBC Bank Ireland plc [2014] IEHC 260 [52], Wellstead v. Judge White & Ors [2011] IEHC 438 [52], Start Mortgages v. Kavanagh [2023] IEHC 452 [52] and Pepper Finance Corporation (Ireland) DAC v. Hayes & Hayes [2025] IEHC 692 [54] applied.

Event of default proved: Clause 9 of the deed of mortgage ‘providing that the power to claim possession shall not be activated until a number of events of default occur’, including where ‘default is made in payment of any monthly or other periodic payment or in payment of any other of the secured monies hereunder’ [74]. ‘[A]n event of default had occurred within the meaning of clause 9 of the mortgage deed.’ [75]

1. 5.1

   Default admitted: First Defendant/Appellant ‘agreed that the money had been borrowed, the property had been mortgaged, that there had occurred a default in making the repayments of the mortgage and that the outstanding sums of money remained due and owing.’ [18]

2. 5.2

   No repayments: ‘no repayments have been made since 30th May 2019.’ [103]

3. 5.3

   Demands unmet: After demand of 20th April 2022, ‘the Defendants did not pay the sum which had been demanded’ [82]. After solicitors’ demand of 22nd July 2022, ‘the Defendants did not pay or deliver up possession of the property.’ [83]

Code of Conduct on Mortgage Arrears 2013 applied: Defendants/Appellants ‘had been classified as not cooperating within the meaning of the Code’ and, offered a right of appeal, ‘chose not to avail of that option and did not appeal at any time.’ [84]

Proof established: ‘It is the owner of the charge; the right to possession has arisen under the terms of the mortgage; the Defendants have not established any defence which disentitle Pepper to the relief which it seeks.’ [114]

Order made: ‘I propose to make an order for possession in favour of Pepper in relation to the property comprised in Folio 133167F of the Register of Freeholders, County Dublin’ [116].

Section 169 of the Legal Services Regulation Act 2015 on costs applied indicatively: ‘My provisional view is that the Plaintiff, having been entirely successful, is presumptively entitled to its costs, to be adjudicated upon in default of agreement.’ [117]