Bank of Ireland wins appeal over quashing of possession order for woman’s home
Posted on 14th April 2021 at 21:09
Woman alleges mortgage fraud against estranged husband and bank, court told
A bank is entitled to a full hearing in the High Court of its claim for possession of a woman’s family home in Co Wexford, the Supreme Court has ruled.
Heather Cody, who alleges mortgage fraud against her estranged husband Peter Cody and against Bank of Ireland Mortgage Bank, won a High Court challenge last year over a possession order obtained by the bank for the home in Kilmurray where she lives with her two children.
The bank appealed after Mr Justice Garrett Simons set aside the Circuit Court possession order and refused to remit the matter for a full hearing.
On Wednesday, a five-judge Supreme Court allowed the appeal, which raised issues concerning the jurisdiction to grant summary judgment in possession cases.
Ms Justice Marie Baker, giving the judgment, said Ms Cody’s arguments and evidence were not sufficient to displace prima facie evidence of the Bank that the right to seek possession over default in payment of money secured by the registered charge over the property had arisen and become exercisable.
However, contrary to what the bank argued, Ms Cody had made more than generalised and bald assertions and her affidavits were sufficient to entitle her to a full trial in the High Court of the action for possession, the judge held.
Mr Justice Simons had found the bank was not entitled to the possession order because it had failed to prove Ms Cody was indebted to it under two loan agreements, said to have been entered into by the Codys in October 2005, with repayment secured against the Kilmurray property by a deed of mortgage and charge entered into by the Codys in January 2007.
Ms Cody had made “very serious” allegations against her husband, from whom she is separated, and the bank, he noted. She alleged Mr Cody was in collusion with the bank during the years 1990 to 2010 to attain money by way of loans and mortgages in the joint names of Peter Cody and Heather Cody, and the family home was being used as collateral, all without her knowledge and consent.
Mr Justice Simons said one of the “curious features” of the loan offer letters is they were addressed to “Mr Peter Cody and Ms Heather McMillan” [Ms Cody’s maiden name] at an address other than their family home which appeared to be the business address of James Cody & Sons, the law firm in which Mr Cody was then a partner.
A bank official had said on affidavit it had advanced a total €650,000 to the Codys but it was “not entirely clear” from the affidavit on what date those payments were said to have been made, he said.
While denying her allegations, the bank had not applied to cross-examine Ms Cody in the Circuit Court on her affidavits, he said. It had “specifically failed” to prove in this appeal she had executed the two loan agreements and this omission was “fatal” to the claim for possession, he held.
In the Supreme Court judgment, Ms Justice Baker said the matters averred to by Ms Cody cannot be said to have established the bank had not made out its proofs.
At best, Ms Cody raises questions which are not answered but the bank had established a prima facie case, the judge said. Ms Cody did not displace its evidence and her averments fall short of denying her signature on certain documents or that she received the money.
While Ms Cody had not established a legal and factual basis on which the High Court could have dismissed the bank’s action, she made a number of averments and assertions which threw sufficient doubt on the veracity or completeness of the facts leading to the making of the loans to require the action be adjourned to plenary hearing, the judge said.
At the least, Ms Cody’s averments provide some, “albeit not determinative”, evidence to support a general statement in her first affidavit the loans and securities were created without her knowledge and consent.
While she would not reverse the High Court conclusion that Ms Cody had made out a credible case she had a stateable defence to the possession claim, the High Court judge erred in finding he had finally determined the matter and thus had no jurisdiction to send it for plenary hearing in that court, Ms Justice Baker said.
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