Fund’s case against AIB ex-director Bernard Somers adjourned

A fund's application for €1.76 million judgment against former AIB and Central Bank director Bernard Somers over a loan secured on various assets, including his home in Foxrock, Dublin, has been adjourned to March next.

Launceston Property Finance DAC issued a demand on October 4th for repayment, within two days, of some €1.76 million allegedly outstanding on a €3.62 million loan. When that was not paid, it issued proceedings.

When lawyers for Launceston applied on Monday to have its summary judgment application entered into the Commercial Court, Mr Justice Brian McGovern adjourned it to March 12th, 2018.

Agreement

Noting Mr Somers had said he had an agreement under which he would meet his liability by March 1st, 2018, the judge said he did not want the court’s fast-track procedures being used in a way “oppressive” of someone not trying to avoid their responsibilities.

The fund would know by March 12th if Mr Somers was “as good as his word” and if there were any outstanding issues of dispute.

Apart from Mr Somers’s claims of overcharging of interest, he accepted liability and maintains he has a standstill agreement under which he would discharge the debt by March 1st, the judge said. While Launceston denied any such agreement, an email from its agent Pepper Assets Servicing agreed the loans would continue to the end of February 2018.

In these “unusual” circumstances, he wondered what was the fund’s “rush” and if this was an attempt to put “additional pressure” on. He also assumed the fund had bought the loan “at a discount”.

Launceston’s proceedings are for summary judgment against Mr Somers and his wife Marguerite, of Old Bawn, Kerrymount Avenue, Foxrock.

Counsel for Ms Somers said the fund accepted her liability under the loan was limited to her interest in the Foxrock property, the sole owner of which is Mr Somers. There was an issue whether the value of the claim against Ms Somers met the €1 million threshold for admission to the Commercial Court.

Dispute

Gary McCarthy SC, for Launceston, argued there was a dispute concerning the debt which he believed would extend beyond March 1st because Mr Somers alleges overcharging of interest over a long period. If Mr Somers was saying he would pay off the full sum claimed by March “we would not be here”.

Mr Somers wanted to defend the application on foot of a standstill agreement which the fund denies and on the claims of overcharging of interest, he said.

Bernard Dunleavy SC, for Mr Somers, said as his client had paid almost €10 million to Anglo Irish Bank arising from facilities, it was "at least likely" there would be issues about overcharging and he would pay the correct sum due and owing.

He was not asking the court to shut out the fund “forever” but it was not entitled to seek judgment now given Mr Somers’s agreement to repay the debt by March 1st. While there would be an issue as to the precise sums due, the fund might also accept by March next his client had been overcharged a “significant” sum.

In light of Mr Somers swearing to the existence of the standstill agreement and independent documentary evidence of that via the email from Pepper, there was no case for summary judgment before March 1st.

The case arises from a 2010 loan for €3.62 million made by Anglo Irish Bank Corporation Ltd to the couple. The fund accepts Ms Somers’s liability was limited to her interest in their home, described by the fund as a “very valuable” asset.

After Anglo's collapse the loan was transferred to Irish Bank Resolution Corporation and acquired by the fund in 2014.

Launceston claims the loan was not drawn down for purchasing a family home but that the couple’s home was security for it.

Repayments

The fund claims it had engaged with the couple over alleged failures to make repayments in line with the loan facility terms. It claims certain repayments were made and, following lengthy negotiations, a debt repayment strategy was agreed in July 2015 which involved the €1.54 million proceeds of sale of a property at Upper Mount Street being paid to the fund.

Because the loan security included the family home, the fund says the loan was referred to its mortgage arrears resolution process under the Central Bank’s code of conduct on mortgage arrears but the fund’s agent Pepper later classified the couple as not co-operating with the meaning of the code.

Pepper also informed Mr Somers of its intention to visit the family home between dates in August and September last but did not do so after Ms Somers wrote asking that no such visit take place, it said.