Solicitor denies conflict over Gerald Kean’s undertakings

A solicitor with Gerald Kean’s law firm has denied there was a conflict between undertakings given by Mr Kean to two banks concerning loans made to a woman for properties.

Sharyn Coghlan remains under cross-examination in the action by Educational Building Society against Mr Kean alleging he has failed to return to the society, in line with a signed undertaking, the title deeds for two properties of Dolores Corcoran's in Co Waterford.

Mr Kean denies the claims and has alleged various "systems failures" by EBS related to redemption of its loans concerning the two residential properties – at Portnahully, Carrigeen and Hunter's Way, Williamstown.

The court has heard the relevant title deeds are with Permanent TSB as a result of a June 2008 refinancing with that bank of three of Ms Corcoran's four loans with EBS.

On Thursday, Ms Coghlan agreed with Andrew Fitzpatrick SC, for EBS, that Mr Kean, as principal of the firm, had given an undertaking to EBS to hold, on trust for EBS, the title deeds for two properties

She agreed that undertaking meant Mr Kean had to return the deeds to EBS unless the bank’s loans on those properties were redeemed.

She also agreed Mr Kean was required, under the PTSB refinancing of Ms Corcoran’s EBS loans, to undertake to give PTSB a first legal charge over the two properties.

No breach

There was no breach of the undertaking to EBS because she – as conveyancing solicitor dealing with redemption of Ms Corcoran’s loans – sought and obtained redemption figures from EBS in June 2008 for loans concerning the two properties, she said.

She sent cheques to EBS based on those figures and it provided receipts for those cheques.

That meant the loans were redeemed and there was an entitlement to have the EBS mortgages concerning those properties vacated, she said.

Her view was not affected by EBS’s claim the two properties were subject to cross-charges arising from another loan made by EBS to Ms Corcoran concerning a third property.

A letter from EBS indicating the properties were subject to cross-charges was received only after the loans were redeemed, she said. The redemption was on foot of information given to the Kean firm by EBS at the time, that information was incorrect and the firm was entitled to have the EBS mortgages vacated.

She was not disputing the position that EBS still has a first charge over the three properties but said that is because EBS has failed to vacate those. “We paid off the mortgages and we’re looking for the vacates.”

Not vacate

Mr Fitzpatrick put to her Mr Kean’s undertakings to EBS and PTSB conflicted because EBS retains a first legal charge over the two properties and has “unequivocally” said it will not vacate its mortgages.

Ms Coghan disagreed with counsel it was not possible to satisfy the undertakings to EBS and PTSB.

The EBS undertaking was satisfied because the loans were redeemed and the mortgages paid off on foot of EBS’s own figures provided to the Kean firm, she said. “We paid what we were told.”

In those circumstances, both undertakings could be satisfied, she said.

The case continues before Mr Justice Michael Twomey.