Start Mortgages DAC and Another v. Armstrong and Another

Section 37 of the Courts of Justice Act 1936, as interpreted in Pepper Finance Corporation (Ireland) DAC v. O’Reilly [2025] IECA 140, applied: ‘de novo rehearing, not an appeal for error … The High Court is not concerned with whether the Circuit Court was right or wrong but must decide afresh whether the party seeking relief is entitled to it on the evidence before the High Court at the date of the appeal hearing.’ [70]

1. 1.1

   Not confined to points pressed: ‘I must be satisfied that the Plaintiff is otherwise prima facie entitled to an order for possession on the evidence and having considered my ‘own motion’ obligations, such that my consideration of this application is not confined to two issues pressed.’ [70]

2. 1.2

   Weak points not addressed: ‘not necessary, however, to address each of the multiple arguments made on affidavit by the first Defendant/Appellant where they have been satisfactorily addressed in replying affidavits and submissions or are patently wholly unsubstantiated, unsustainable or lacking in merit such that no real or live issue requires to be determined. Indeed, while not abandoning any points previously advanced, there was a welcome implicit acknowledgment that many of the points articulated through the affidavit exchange on behalf of the Defendants were weak such that further substantive engagement with these issues would be an improper use of scarce court time and limited judicial resources.’ [71]

Bank of Ireland Mortgage Bank v. Cody [2021] IESC 26 test for order of possession applied:

1. ‘that it is the owner of the charge; and’
2. ‘that the right to seek possession has arisen and is exercisable.’ [75]

1. 2.1

   Broad assertions insufficient: ‘s.62 proceedings are genuine summary proceedings and are not intended to become plenary litigation unless a real issue arises. In consequence, a defendant must do more than make broad assertions to resist summary judgment.’ [76]

2. 2.2

   Start Mortgages DAC v. Ryan [2021] IEHC 719 applied: ‘proof of registered ownership of the charge together with proof of default are sufficient to ground an order for possession.’ [78]

Register conclusive; s.31 of the Registration of Title Act 1964, Tanager DAC v. Kane [2018] IECA 352 and Mars Capital Finance Ireland DAC v. Walshe [2025] IEHC 661 applied: ‘defendant cannot challenge the correctness of the Register in possession proceedings. Disputes about alleged registration errors must be brought in separate rectification proceedings.’ [77] ‘registration of Mars Capital Finance as owner of the charge is conclusive for the purposes of these proceedings.’ [99]

Sections 31 and 64 of the Registration of Title Act 1964 on transfer of charges applied: ‘once a transferee becomes registered as owner of a charge, it stands in the shoes of the transferor and enjoys the same enforcement rights.’ [79]

Freeman v. Bank of Scotland plc [2014] IEHC 284, as applied in Start Mortgages DAC v. Ryan [2021] IEHC 719, applied: ‘borrowers had expressly agreed in their mortgage documentation that the loans could be securitised, legal title to the loans and security remained with the lender, securitisation did not alter the borrowers’ repayment obligations, securitisation did not prevent enforcement of the mortgage and the borrowers failed to establish that securitisation affected liability on the loan.’ [92]

1. 5.1

   Securitisation agreed: ‘mortgage documentation itself provided for assignment and securitisation’ [11].

2. 5.2

   Only beneficial interests transferred: ‘securitisation occurred in 2006 and that at that time only beneficial interests were transferred with legal title remaining with Start Mortgages Limited until transfer to Mars Capital Finance DAC.’ [90]

Securitisation irrelevant: ‘In the normal course, therefore, securitisation is not a defence.’ [91]

1. 6.1

   Standing retained: ‘Start retained legal title notwithstanding securitisation when proceedings commenced and therefore Start could maintain possession proceedings.’ [100]

Beneficial ownership immaterial; Crowley v. Promontoria (Oyster) DAC [2020] IEHC 309 and Start Mortgages DAC and Another v. Curtis [2025] IEHC 684 applied: ‘once a plaintiff proves legal ownership of the charge, it need not identify the beneficial owner and it need not explain the ultimate beneficiary … whether Start Mortgages held or Mars Capital Finance now holds the charge solely for its own benefit or as trustee for another is immaterial.’ [99]

1. 7.1

   Not a Cody proof: ‘Establishing beneficial ownership of the underlying debt is not one of the Cody proofs.’ [97]

Charge not land: ‘argument advanced on behalf of the first Defendant/Appellant conflates ownership of land with ownership of a charge. … The statutory regime governing transfers of charges is found in ss. 64 and 31 of the 1964 Act, not in the provisions of the practice direction relied upon by the first Defendant/Appellant.’ [96]

Pepper Finance Corporation (Ireland) DAC v. O’Reilly [2025] IECA 140 on substitution applied; Irish Bank Resolution Corporation Ltd v. Comer [2014] IEHC 671 on evidence of assignment applied: ‘court in deciding on a possession application should be satisfied as to the evidence of assignment. … on a s.37 appeal where an assignment occurs after the Circuit Court order, substitution of the assignee is generally appropriate and the assignee steps into the shoes of the assignor. In such circumstances the assignor need not remain in the proceedings unless some special feature requires it.’ [82]

Transfer established: ‘Registration as owner of the charge is sufficient to establish legal ownership for possession purposes. In any event, the transfer documentation in this case independently establishes the transfer.’ [105]

1. 10.1

   Schedule redacted but sufficient: ‘schedule is heavily redacted to remove information relating to other borrowers but enough is retained to identify the Defendants’ account as one of the transferred loans.’ [102]

2. 10.2

   Notice of transfer: ‘hello and goodbye letters exhibited complete the evidential chain showing notice of the transfer being given by both the outgoing and incoming entities.’ [103]

3. 10.3

   Start Mortgages DAC and Another v. Corr [2026] IEHC 56 on same transfer applied: ‘very same transfer documents, the same redactions and substantially the same arguments were considered in Corr, where the Court held that the transfer from Start to Mars had been proved and that Mars was entitled to enforce the charge. … I see no basis for reaching a different conclusion in this case.’ [104]

4. 10.4

   Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, as in Pepper Finance v. Kenny [2023] IEHC 115, and KBC Bank Ireland plc v. Wilson [2019] IEHC 870 applied: ‘business records can now be admitted where statutory requirements are met. It is also established that affidavit evidence from servicing personnel in respect of transferred loan documentation and in reliance on account records derived from predecessor entities is acceptable’ [81].

   1. 10.4.1

      Notice under section 15: ‘formally giving notice of an intention to rely on the exhibited documentation pursuant to s. 15 of that Act.’ [37]

Core facts undisputed: ‘remarkably little dispute as to the core historical facts on this appeal. Most of the conflict is not factual but legal or inferential.’ [85]

1. 11.1

   Cody proofs undisputed: ‘traditional Cody proofs of (a) existence of a registered charge and (b) a longstanding payment default are not meaningfully disputed on the affidavits.’ [86]

2. 11.2

   Demands unmet: ‘Demand letters were issued in April, 2014, requiring repayment of the sums due. Further demands for possession followed. The demands were not complied with.’ [14]

3. 11.3

   Not co-operating under Code of Conduct on Mortgage Arrears: ‘Defendants were ultimately classified as not co-operating for the purposes of the Code.’ [16]

Quantum only: ‘controversy concerns quantum rather than the existence of the debt, the existence of the security and the entitlement to possession. The allegations do not undermine either of the two matters identified in Cody’ [106].

1. 12.1

   No causal link to default: ‘It is not contended that but for the alleged overcharge of interest and erroneous calculation of sums outstanding, the first Defendant would have continued to meet obligations to repay. It is recalled that this is a case in which no payments whatsoever have been made for more than twelve years. I am satisfied that even were the affidavits to be admitted, the ‘new’ evidence sought to be introduced is not material to possession in this case.’ [107]

Delay not standalone defence: ‘approach reflected in the jurisprudence is not to treat delay as a standalone defence in possession proceedings where ownership of the charge and default are established. Once ownership of the charge and default have been proved, delay is ordinarily relevant only as an equitable discretionary factor. It will rarely defeat a possession claim unless coupled with demonstrable prejudice or another recognised equitable defence which is of a degree which outweighs the competing interest of a legitimate plaintiff.’ [109]

1. 13.1

   Delay may benefit debtor: ‘delay may inure to the benefit of a defaulting debtor by affording an opportunity to regularise financial affairs and engage with the lender to address the debt, whilst maintaining a roof over the debtor’s head.’ [109]

2. 13.2

   Debtor’s contribution weighed: ‘the court must also have regard to the extent to which a defendant to possession proceedings contributed to or caused delay by resisting a claim which the court is ultimately satisfied is otherwise established.’ [109]

3. 13.3

   No distinct legal issue: ‘delay could become material on the facts of an individual case if it gives rise to some distinct legal issue (for example, prejudice affecting fair procedures, an evidential problem or another recognised defence) but no such issue is demonstrated in this case. It seems to me that in this case, discretionary factors weigh against the first Defendant/Appellant because of long-standing default with no payment since 2013, continuing indebtedness and multiple appeals and procedural steps over many years all serving to frustrate the finalisation and enforcement of a possession order.’ [110]

Delay no bar: ‘delay in question in this case and on the established facts cannot operate to preclude the making of an order for possession.’ [111]

Swearing before issue usual: ‘contention in this regard is difficult to understand and has not been substantiated by reference to any legal provision or practice requirement. There is nothing unusual in a grounding affidavit being sworn before proceedings issue or are allocated a record number. … Later essentially administrative or clerical additions associated with court filing do not alter the substance of the affidavit.’ [112]

1. 15.1

   Same Civil Bill: ‘Civil Bill for Possession had been drafted and was available to her when she swore her first grounding affidavit and was the same as the Civil Bill which issued. In the light of these averments, I do not understand why the complaint regarding the date of swearing of the affidavit is still being maintained.’ [113]

Objection without merit: ‘There is ample admissible evidence before me to ground the application for summary possession.’ [114]

EU own-motion obligation: ‘Where borrowers are consumers, the Court must consider whether contractual terms engage the Unfair Terms in Consumer Contracts regime, regardless of whether the issue is articulated. The EU own-motion obligation requires the court in possession proceedings to independently consider whether any consumer-protection issue arising from unfair contractual terms affects the entitlement to possession.’ [115]

No unfair term: ‘Assuming that the defendants are consumers, I have considered the facility letter, mortgage conditions and related documents. I have not identified any term that appears potentially unfair, nor has any such term been identified to me.’ [116]

Order for possession made: ‘Mars Capital Finance Ireland DAC, as registered owner of the charge and substituted Plaintiff/Respondent, is entitled to an order for possession.’ [120]

No remittal or cross-examination: ‘None of the issues raised concerning securitisation, beneficial ownership, assignment, delay, alleged overcharging or procedural irregularity displaces those conclusions or give rise to material conflicts of fact warranting the grant of leave to cross-examine. No proper basis for remitting this matter to plenary hearing has been established.’ [119]

Applications not pursued: ‘Neither the application to admit new evidence, nor the application to cross-examine the Plaintiffs’ deponents, nor the application to set aside the joinder of Mars Capital Finance DAC as Co-Plaintiff were separately pursued at the hearing before me’ [6].

1. 21.1

   New evidence considered: ‘Although this application has not been determined, the evidence sought to be adduced was before me at the hearing.’ [50]