A mother and daughter who returned to their former family home after a possession order was executed must leave there within weeks, the Court of Appeal has ruled.
The three-judge court rejected an appeal by Janette Simpson and her daughter Holly against a High Court order requiring them to leave the property near Clontibret, Co Monaghan.
Noting that Holly Simpson is preparing for school examinations, the court put a stay on the order until the end of July.
Giving the judgment this week, Judge Nuala Butler said the four-bedroom detached house was remortgaged as security for a commercial loan taken out in 2007 by Janette Simpson and her then husband.
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Repayments were in arrears by 2009, and when the High Court granted the injunction, €288,010 was due on the loan, including €118,490 arrears.
Start Mortgages DAC acquired the loan in 2015 and later transferred its interest in the property to Mars Capital Finance Ireland DAC.
In 2017, before taking possession proceedings, Start wrote to the borrowers offering them an alternative repayment arrangement (ARA) involving reduced payments for six months. It suggested they contact the Money Advice and Budgeting Service or a personal insolvency practitioner in respect of their indebtedness.
It seemed the ARA offer was refused and Start later informed the borrowers they were now outside the Mortgage Arrears Resolution Process, the judge said. It advised their other options included the mortgage-to-rent scheme, under which distressed properties can be bought by local authorities and leased to the former mortgagors.
In 2022, at a hearing in which the borrowers did not participate, a possession order was granted. It was executed in March 2023.
The mother and daughter re-entered the property sometime before April 11th, 2023, and resumed living there, the judge said.
In June 2023, Janette Simpson obtained a protective certificate, preventing creditors taking legal action while a debtor applies for a personal insolvency arrangement. In support of that, she listed her assets as a half share in her “principal private residence”, noted a possession order was made in favour of Start and put her income at about €1,300 monthly.
Start applied to have the certificate set aside on grounds including Janette Simpson was not lawfully in possession of the house and it was not her “principal private residence”.
In opposing that, Janette Simpson disclosed to Start, “apparently for the first time”, that her marriage had broken up in 2021, said Butler.
She alleged her husband was “controlling”, that she was a victim of financial abuse and had not appreciated the extent of the position in relation to the possession proceedings.
As she had no money for rent, and there were long waiting lists for social housing, Simpson said she felt she had no choice but to re-enter the house and was ready to engage to reach a solution.
However, the protective certificate was set aside for reasons including Janette Simpson’s failure to disclose that the possession order had been executed.
In September 2023, Start issued trespass proceedings and, pending a full hearing, sought an injunction requiring the Simpsons to leave the property.
In November 2023, Janette Simpson’s solicitor wrote to Start seeking to make a proposal for restructuring the underlying loan. It was argued that Start had a duty in that regard under implied terms in the loan/mortgage contract.
After the High Court found there was no basis for refusing the injunction, the Simpsons appealed on grounds including that they had raised a strong issue concerning the duty owed by Start.
In dismissing their appeal, Butler said they had put nothing before the court enabling it to disregard the fact Start had established a fair issue to be tried in its trespass case.
There was nothing to enable the court to conclude that the least injustice would be caused by permitting them to remain in the property, as trespassers, pending the full hearing, she held.
