Financial ombudsman must reconsider ACC’s failure to return mortgage deed

The High Court has upheld a Galway couple's appeal against the Financial Services Ombudsman's decision not to uphold their complaint against ACCBank.

The president of the High Court, Mr Justice Nicholas Kearns, said he was remitting the matter back to the Ombudsman “for further consideration”.

Henry and Martina Haverty of Meelickbeg, Tuam, Co Galway, had complained to the ombudsman over ACC's failure to release to them the deed of charge, or mortgage deed, over the couple's family home. The ombudsman last year rejected the complaint.

While he accepted the Havertys had repaid some £50,000 advanced by ACC to build their family home, he agreed with ACC that the deed of charge covered not just money advanced for the family home but all future borrowings as well.

The ombudsman, noting that Mr Haverty currently owes €1.3 million to ACC, said he was satisfied that money was due and owing on the deed of charge. The Havertys appealed the ruling to the High Court.

The ombudsman had argued that the decision should remain undisturbed. ACC were notice parties to the proceedings.

In his judgment, Mr Justice Kearns said the matter should be reconsidered on the ground that the ombudsman had failed to have regard for provisions of the 1976 Family Home Protection Act.

The judge said his decision was in circumstances where the Havertys’ family home was provided as security for further loans “advanced to one of the parties to the mortgage deed”.

Mr Justice Kearns said the couple obtained a loan of £55,00 from ACC in 1997 to build their home. The loans was secured by way of a deed of charge on the property. The mortgage was repaid in full by 2007. However, despite several requests, the charge over their family home was not released by ACC.

The judge noted that Mr Haverty, a builder, also commercial dealings with ACC. Money had been advanced by ACC to companies in which Mr Haverty was a director and shareholder to purchase development lands.

In 2011, ACC maintained the deed of charge covered not only present but future advances due by the Havertys “either in their own names or as guarantors for another party”.

The charge it added remained validly in place.