BOI Mortgage Bank v Cody & anor (Approved) [2021] IESC 26 (14 April 2021)

BOI Mortgage Bank v Cody & anor (Approved) [2021] IESC 26 (14 April 2021)

The Bank did not establish its entitlement to summary possession as the respondent raised sufficient factual disputes regarding her knowledge and consent to the loan and charge, and the Bank failed to adequately rebut these assertions. The appropriate course was to adjourn the proceedings to plenary hearing rather than dismiss the claim outright.

Citation
[2021] IESC 26
Parties
Plaintiff/appellant: Bank of Ireland Mortgage Bank; Defendant: Peter Cody; Defendant/respondent: Heather Cody
Jurisdiction
Ireland
Judgment Date
14 April 2021
Procedural Posture
Appeal From High Court (on Circuit) Decision in Summary Possession Proceedings / Supreme Court Judgment on Appeal
Outcome
Appeal allowed in part; order for possession set aside; proceedings to be adjourned to plenary hearing.
Legal Topics
Summary Possession Proceedings, Registered Land Charges, Family Home Protection Act 1976, Burden of Proof in Summary Proceedings, Adjournment to Plenary Hearing
Property Law Civil Procedure Banking Law Summary Possession Proceedings Registered Land Charges Family Home Protection Act 1976 Burden of Proof in Summary Proceedings Adjournment to Plenary Hearing

Case Brief

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Parties

Bank of Ireland Mortgage Bank

Plaintiff/appellant

Peter Cody

Defendant

Heather Cody

Defendant/respondent

Procedural Posture

Appeal From High Court (on Circuit) Decision in Summary Possession Proceedings / Supreme Court Judgment on Appeal

Legal Issues

  1. 1 Whether the Bank established its claim for summary possession under s. 62(7) of the Registration of Title Act 1964
  2. 2 Whether the respondent raised sufficient factual dispute to require plenary hearing
  3. 3 Whether the trial judge erred in refusing to adjourn to plenary hearing

Ratio Decidendi

The Bank did not establish its entitlement to summary possession as the respondent raised sufficient factual disputes regarding her knowledge and consent to the loan and charge, and the Bank failed to adequately rebut these assertions. The appropriate course was to adjourn the proceedings to plenary hearing rather than dismiss the claim outright.

Court Disposition

Appeal allowed in part; order for possession set aside; proceedings to be adjourned to plenary hearing.

Orders

  • Order for possession set aside
  • Proceedings to be adjourned to plenary hearing for determination of factual disputes