A woman is entitled to a full new hearing over a finance company’s moves to repossess her house after a judge said the company had provided the High Court with a mortgage deed that was three-quarters blacked out.
Mr Justice Garrett Simons said Pepper Finance Corporation (Ireland) DAC, trading as Pepper Asset Services, had provided a document with redactions that were “so extensive that this court cannot safely interpret the legal effect of the deed”.
Pepper had obtained a Circuit Court order that Liz (otherwise Elizabeth) Moynihan must deliver possession of the house at Bunting Road, Walkinstown, Dublin.
She appealed to the High Court and Mr Justice Simons ruled she was entitled to a full plenary hearing of her challenge to Pepper’s possession application.
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The judge said Ms Moynihan got a mortgage to buy the property in 2008 from GE Capital Woodchester Home Loans Ltd which, in 2012, changed its name Pepper Finance Corporation (Ireland).
Ms Moynihan failed to make monthly payments as due and this triggered Pepper’s entitlement to demand early repayment of the full mortgage plus interest. A formal demand for payment was made in August 2016. Payment was not made and Pepper brought proceedings resulting in the Circuit Court ordering in July 2019 that Ms Moynihan deliver up possession.
She appealed and the High Court ruled Pepper had not yet established its proofs. The matter will have to be remitted to plenary hearing.
In his decision, Mr Justice Simons said the distinguishing feature of the case was that the beneficial interest in the underlying debt appeared to have been transferred from Pepper to a company known as Windmill Funding Ltd.
It further appeared that the contractual intention had been that the legal interest would be held, temporarily, by Pepper as a “bare trustee”.
While Pepper’s counsel argued there was previous authority for the proposition that a bare trustee is entitled to pursue an application for an order for possession, the difficulty in this case was that the evidential foundation for advancing this proposition had not been established, he said.
“It is not apparent, from the limited evidence which has been put before the court, that Pepper Finance necessarily retains legal ownership”, he said.
Pepper had provided a “heavily redacted” mortgage sale deed, dated in September 2012. While the deed consists of 26 pages, 18 of them had been redacted entirely which meant “whole swathes” of operative clauses in the deed were omitted.
“In consequence, it is simply impossible for the court to interpret the deed or to determine its precise legal effect,” he said.
It was important to say that his judgment says no more than that Ms Moynihan had demonstrated, on the basis of the limited materials before the court to date, that there are credible grounds for defending the proceedings. It does not say the potential defence is a strong one, he said.
It will be for the High Court judge hearing the plenary hearing to decide the case on the basis of oral evidence and such further documentation as may be directed to be discovered, he said.
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