A COUPLE evicted from their south Dublin home earlier this year have brought a High Court action against Irish Bank Resolution Corporation (IBRC) arising out of their removal.
In a widely publicised move last April, Brendan Kelly (71) and his wife Asta (63) were removed from their home at St Matthias Wood, Killiney, on foot of an eviction order granted to Irish Nationwide in June 2010.
The couple have launched a legal challenge against IBRC arising out of their eviction.
However, yesterday at the High Court lawyers for the bank asked Mr Justice Seán Ryan to strike out certain parts of the action on the basis that it amounted to “an abuse of process”.
Richard McGrath for IBRC said the Kellys had registered a notice that there was a legal action pending known as a lis pendens over the property.
This means that the bank, which has already found a buyer for the property at St Matthias, is unable to go ahead with the sale until the dispute is determined.
Mr McGrath said the Kellys were effectively seeking to have the 2010 Circuit Court order overturned. This, he submitted, they could not do as they were out of time to appeal the Circuit Court order. He also said that the couple had consented to that order.
Mr McGrath said the bank was fully within its rights to sell the house. The couple had no entitlement to the property, nor any right to register the lis pendens, which should be struck out by the court so the sale could proceed.
Tim Dixon for the Kellys rejected the claim that his client wished to impugn the 2010 Circuit Court order or that their action was an abuse of process. Their action was being brought in relation to the bank’s alleged conduct after the Circuit Court order was made, Mr Dixon said, adding that the bank’s application to have part of the proceedings struck out was “premature”.
He agreed with Mr Justice Ryan that the Kellys’ action could be classified as being a claim for alleged breach of contract by the bank.
Mr Dixon said his clients fully intended to progress the proceedings against the bank. However Mr Kelly was not in an advanced enough position at this point in time to particularise the full details of his claim. He had not been provided with information and documents, to which he believed he was entitled and which he had requested from IBRC.
Following the conclusion of legal submissions, Mr Justice Ryan said he would give his ruling later this month. Mr Kelly and his wife, who acquired a number of other properties, bought the house in 2004 with a €2.2 million mortgage from Irish Nationwide. At the time, the property was valued at €3.2 million. The outstanding mortgage on the house when the bank sought possession orders was in the region of €2 million.