Judge ‘deplores’ couple’s effort to find legal loophole to keep family home

A Co Wexford couple who stopped making repayments on their €200,000 mortgage five years ago, claiming their family home was owned by a private trust, have failed to overturn a possession order in the High Court.

Ms Justice Úna Ní­ Raifeartaigh said Leonard and Leonora Dalton, representing themselves, had not engaged at all with Start Mortgages DAC or with any of the free services to help people in mortgage arrears, such as the Money Advice Budgeting Services or the Free Legal Advice Centres.

She said they seemed to have instead been “duped” into paying money to anonymous “advisers” with no legal expertise to advance “nonsense pseudo legal arguments” in challenging Start’s entitlement to possession.

The judge said she deplored such an approach which “only makes a bad situation worse” and exposes people to more costs.

Ms Justice Úna Ní­ Raifeartaigh on Thursday affirmed a possession order made by the Circuit Court in early 2017 for the family home at Dunsinane, The Leap, Enniscorthy. She also awarded costs to Start Mortgages.

Mrs Dalton, who had objected to the costs order, said there were five people in the family home and she wanted more time.

Tomás Keyes, for Start Mortgages, said he hoped the Daltons would agree to vacate their home. He said proceedings are due before Wexford Circuit Court in November for execution of the possession order and he did not anticipate any development before the new year.

The judge, noting the execution proceedings mean nothing will happen over the coming months, said she would not grant a stay on her orders.

Ceased repayments

The case concerned a €200,000 mortgage take out by the Daltons with Permanent TSB in 2008 and on which they ceased making repayments in July 2013. The outstanding balance was about €242,000, plus arrears of €104,000, last May.

Before the judgment was given, Mrs Dalton had raised an issue about the title of the proceedings. Mr Keyes said orders had previously been made that Start could be substituted for PTSB and that Start owned the charge on the Wexford property. The judge agreed Start is the appropriate plaintiff.

In her judgment, she said that after repayments on the mortgage stopped in 2013, unsuccessful efforts were made to try and get the Daltons to engage with the bank. Possession proceedings were later initiated and there were several adjournments before the Circuit Court made a possession order about 1½ years ago.

This High Court appeal did not actually proceed until last week and it could not be said this action was hurried, she said. The Daltons had raised some 29 technical legal objections and filed a very large number of affidavits in this case but never disputed they had taken out the mortgage loan and failed to engage with the bank and the relevant services, she said.

‘Loophole’

The entire thrust of their defence was to try and find a “legal loophole” as a means of escape from a loan they had voluntarily entered into.

“I deplore that approach,” she said.

During the hearing, she said Mrs Dalton made no attempt to engage with the points made by Start and seemed to have relied on “advice” given “behind closed doors” in a “scattergun” approach raising many issues, some of which did not even apply to this case and were “red herrings”.

She rejected all those points, including that the Circuit Court lacked jurisdiction to make the possession order and that the property is owned by a “private irrevocable trust”.

If people could simply get rid of a mortgage debt by putting it in a trust, she said she was sure hundreds of thousands of Irish people would do that.