Thursday 19 October 2017

High Court strikes out repossession proceedings against couple by sub-prime lender over mortgage debt which grew to €1.4m

Dublin's Four Courts.
Dublin's Four Courts.

THE High Court has struck out repossession proceedings against a couple by a sub-prime lender over a IR£40,000 mortgage debt which grew to €1.4m.

Ms Justice Isobel Kennedy said the balance of justice favoured striking out Home Funding Ltd's application to have the repossession application re-entered against John and Shelia Nolan, Tallaghan, Ballinagare, Castlerea, Co Roscommon.

She said a near-ten year delay, between 2004 and 2014, by the company in advancing the application was both inordinate and inexcusable.  The case should be dismissed for want of prosecution, she said.

The court heard the Nolans entered  into a mortgage agreement on their home in 1997 with the  Wise Mortgage Company Ltd and the mortgage was later transferred to Home Funding (now called Vivier Mortgages Ltd).

The IR£40,000 loan was to be repaid over 15 years via monthly repayments of IR£552, amounting to a total of IR£99,399.

It was alleged the couple stopped making repayments on the loan in 2000. Home Funding sought a possession order for their home in 2001.

When it sought to have the possession application re-entered, its lawyers wrote to the couple last year seeking €1.4m it claims it is now due.

The couple asked the court to dismiss the application due to want of prosecution.

Home Funding claimed the delay was due to an oversight, that a receiver being appointed to the company in 2007, and that there had been negotiations aimed at settling the matter.

It was accepted, while there was a delay in bringing the case, the balance of justice favoured its repossession application going ahead.

The Nolans rejected those reasons, and claimed they were prejudiced by the lengthy delay.

They also claimed Home Funding's explanations for the delay "lacked candour".

It had failed to disclose the real reasons for the delay,  including difficulties encountered by Home Funding founder Ian Leaf, including that he had a spell in prison.

Mr Leaf, was extradited to England from Switzerland in 2004, the court was told.

He was convicted of 13 counts of fraudulent trading. He was jailed for 10 years and released in 2008, the court heard.

Mr Leaf also had confiscation orders made against him after being convicted of fraud calculated as being Stg£99.8m.

The company denied there was a lack of candour or that Mr Leaf's difficulties had anything to do with the delay.

The incarceration of Mr Leaf, who is now called Ian Andrews, was not relevant, it was argued. He had nothing to do with the running of the company, it was claimed.

In her judgment, Ms Justice Kennedy said after taking all matters into consideration she was satisfied to dismiss the case for want of prosecution.

She noted repossession proceedings were entered in 2001.   Home Funding's statement of claim and the Nolan's defence and counterclaim were served in July 2004.

In February 2014, nine years and seven months later, the company sought to have the proceedings re entered, the judge said. 

The application for repossession should be struck out because of inordinate and inexcusable delay alone, she said.

There was no need to consider the issue of any alleged lack of candour shown by the company,  she said.

The judge struck out both the application for repossession and a counterclaim brought by the Nolans.

Costs were awarded in favour of the Nolans. The judge agreed to place a stay on the costs order in the event of an appeal.

A statement read out on behalf of John Nolan and Sheila Nolan today said:

“In the High Court this morning, before Ms. Justice Isobel Kennedy, proceedings by Home Funding Corporation Limited against our Clients were, dismissed with Costs in our Clients favour.

"This ordeal started in 1997 and, our Clients are relieved that it has finally come to a conclusion. They would first of all like to thank, the Court for its time and careful consideration of the matter. They also wish to thank their Legal Team, Kevin P Kilrane & Company, Peter Bland S.C and Rory Flynn B.L. for their perseverance on their behalf."

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