Man loses High Court appeal over repossession of Dublin family home
Posted on 27th November 2019 at 20:20
Last mortgage payment made in 2013 as Tanager seeks possession of Clonsilla home
A man has lost his High Court appeal over an order for possession of his family home in west Dublin
The possession order was sought for the property at Elmwood, Clonsilla, by Tanager DAC after it acquired Rolf Kane’s €266,000 mortgage loan, originally made in 2006 by Bank of Scotland (Ireland) Ltd (BoSI).
In a judgment published this week, Mr Justice Seamus Noonan noted, following a cross-Border merger, the loan was assigned to Bank of Scotland plc (BoS) which in 2012 wrote to Mr Kane demanding repayment of then outstanding arrears of €27,000.
The last payment on the mortgage was made in 2013, the judge noted.
BoS later sold a portfolio of securities, including Mr Kane’s loan, to Tanager which in 2015 became registered as the sole owner of the charge on Mr Kane’s home previously registered in favour of BoSI.
It seemed, by August 2014, the arrears stood at more than €56,000 and Tanager’s solicitors wrote to Mr Kane demanding repayment of the total outstanding debt, some €290,000, within 10 days. Possession proceedings were initiated in January 2015 and the Circuit Court held Tanager was entitled to possession.
In his appeal, Mr Kane had raised an issue that BoS was not entitled to transfer or assign the charge because it never became registered of the owner of the charge. Mr Justice Noonan previously referred that issue, because of its potential impact for other cases, to the Court of Appeal.
Because that court had ruled Mr Kane was not entitled to raise that issue in these proceedings, that matter had been disposed of, he said.
Addressing additional claims by Mr Kane that an interest rate was applied to his loan of which he was neither notified about, nor consented to, the judge said the interest rate stipulated in his loan was 1.25 per cent over the European Central Bank (ECB) rate.
It was clear, from June 2007 and at Mr Kane’s own request, the ECB tracker rate no longer applied to the loan, the judge said.
Mr Kane had expressly agreed to the application of a different interest rate to his account since 2007 and the court could not accept he was never made aware of what interest rate applied to his account.
There was “absolutely no evidence” to support Mr Kane’s contention the arrears of interest on his loan had been improperly capitalised, he also held.
The judge dismissed further claims that the effect of the assignment from BoS to Tanager was to transfer Mr Kane’s loan to an unregulated entity, giving rise to an unfairness in the contract.
Mr Kane had failed to demonstrate anything approaching an “actual unfairness” in the contractual arrangements between him and Tanager, and “certainly none” that would have any bearing on the fact an event of default has occurred giving rise to a right to seek possession.
The judge rejected a further claim that Mr Kane was not given notice in writing of the assigment of his loan, with the effect it was unenforceable against him.
BoS had written “goodbye” letters to Mr Kane and, in April 2014, Tanager wrote a “hello letter” to him stating the mortgage had been transferred to it. The hello letter, even on its own, complies with the requirements of the section, he said.
Mr Kane had not established any defence to Tanager’s claim, the judge concluded.
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