Dublin couple successfully halt bid to repossess home over disputed €1.15m mortgage
Ray Managh
A Co Dublin couple have successfully repelled a bid by Pepper Finance Corporation to repossess their Killiney home on which they allegedly owe €1.15 million, including arrears of just under €455,000.
Judge Geoffrey Shannon, in what has been described as a significant judgment relating, in particular, to mortgages that were sold on by banks to finance houses, said in the Circuit Civil Court he was not satisfied Pepper’s claim was suitable for summary disposal.
He put the case back for “closer scrutiny” in a full formal hearing involving direct evidence from witnesses who could face cross-examination.
Judge Shannon found that Pepper’s claim to legal title was complicated by a lack of clarity in sworn written evidence concerning the mortgage sale documentation in a series of transfers, initially in a cross-border Bank of Scotland transfer and thence to Pepper Finance Corporation Ireland.
The house, “Little Harrow” in Church Road, Killiney, Co Dublin, is owned by Philip and Venetia Corballis, who live there with two adult daughters, and whose 2008 €1 million Bank of Scotland mortgage was sold on to Pepper Finance 10 years later. Pepper now claims it is owed €1.15 million by the couple and wants them out of what it accepts is their principal private residence and family home.
The court heard they had not paid a penny off their mortgage since it had been transferred to Pepper six years ago.
Barrister Anne Fitzgerald, who appeared with Eoghan O’Reilly of F.H. O’Reilly Solicitors for the Corballises, told Judge Shannon during an initial summary hearing that the couple disputed the validity of the assignment to Pepper who, she submitted, was at most a servicer of the loan. She said they further contended that Pepper lacked title to bring the proceedings.
Ms Fitzgerald said her clients also raised concerns regarding data protection compliance, alleging that the processing of their personal data by Pepper and other parties to the mortgage transfer had been unlawful, lacked transparency and had been conducted without valid consent. They asserted that their data had been traded on international stock exchanges without appropriate safeguards.
Judge Shannon stated in his reserved judgment that the Corballises claimed any contract or loan agreement, which they denied, had been vitiated by misrepresentation, fraud, mistake, duress, undue influence, unconscionability, illegality, breach of duty of care and of their constitutional and European rights.
The judge said barrister Tomas Keys, counsel for Pepper Finance, had addressed and challenged 17 potential distinct arguments arising from the sworn written evidence of the Corballises who, Pepper claimed, had defaulted in their repayment obligations. No payments had been received since the loan had migrated to Pepper and demand letters calling in the full debt and requesting possession of the property had not been complied with.
Mr Keys, who appeared with Amoss solicitors, said Pepper Finance asserted it was the legal owner of the mortgage and was entitled to bring possession proceedings, denying that it was merely a servicer.
Judge Shannon found that material questions remained regarding the completeness of the chain of title and additional issues concerning data protection compliance and said the fairness of contractual terms further underscored the complexity of matters raised.
“The court is satisfied that the defendants have disclosed a fair and reasonable probability of a defence and it is not very clear that they have no case,” Judge Shannon said, adjourning the proceedings to a full formal hearing in which witnesses would have to give direct oral evidence to the court and face cross-examination.
