By: Mark Tottenham BL, on May 29th, 2012

Stepstone Mortgage Funding Ltd v. Fitzell [2012] IEHC 142 (High Court, Laffoy J, 30 March 2012)

High Court finds, on appeal from Master of the High Court, that claim for possession should have been transferred to court list, but that the plaintiff bank was not entitled to possession of a dwelling house having failed to comply with code of conduct on mortgage arrears.

Mortgage - claim for order of possession - no appearance - application for transfer to Chancery Special Summons list before Master of High Court (Honahan) - alleged mistake in letter from plaintiff to defendant - failure to give borrower reasonable time to submit appeal - refusal of Master to transfer - adjournment of application - finding by Master that mortgagee had failed to comply with "Code of Conduct on Mortgage Arrears", Central Bank of Ireland, December 2010 - s. 117 of the Central Bank Act, 1989 - failure of borrower to comply with arrangement with bank - consequences of failure to comply with code of conduct - methods of enforcement.

Quotation from judgment (courtesy of the Courts Service of Ireland):

“... I find it impossible to agree with the proposition that, in proceedings for possession of a primary residence by way of enforcement of a mortgage or charge to which the Current Code applies, which comes before the court for hearing after the Current Code came into force, the plaintiff does not have to demonstrate to the Court compliance with the Current Code. To take what is perhaps the best known provision of the Current Code, the imposition of a moratorium on the initiation of proceedings, which is now contained in provision 47 of the Current Code (and which was also to be found in the earlier codes, although the moratorium period in the case of the earliest code was six months, rather than twelve months), surely a court which is being asked to make an order which will, in all probability, result in a person being evicted from his or her home, is entitled to know that the requirement in provision 47, which has been imposed pursuant to statutory authority, is complied with.”

Full Text on Court Services Website>

Key Cases Cited

Breslin on Banking Law (2nd Ed.) 3 - 56
Zurich Bank v McConnon [2011] IEHC 75