Man wins appeal over lack of detail in mortgage debt demand
by By Ann O'LoughlinA man has won a Supreme Court appeal which centred on a claim he was entitled to more detail about how a €221,000 mortgage debt was calculated before a bank obtained judgment for the money against him.
The court ruled Joseph O'Malley was entitled to such detail when it allowed he appeal against a High Court judgment in favour of Bank of Ireland Mortgage Bank over a 2008 loan of €225,000 to him secured on a property at Inishcuttle, Kilmeena, Westport, Co Mayo.
He had experienced a change in his financial circumstances and monthly repayments ceased in November 2011.
A receiver was subsequently appointed over the property and it was sold.
Mr Gleeson had objected to the bank's application for summary judgment and wanted a hearing of his case because, he said, there was a lack of detail concerning the €221,795 outstanding debt.
The bank argued details of the debt were provided in a statement of account Mr O'Malley received.
In the High Court, Mr Justice Kevin Cross ruled the statement of account was sufficient for him to know the case he had to meet.
He granted judgment.
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Mr O'Malley appealed claiming, among other things, there was confusion and uncertainty on his part as to his liability over the calculation including in relation to the principal amount due and interest computation.
The bank said the burden of proof had been discharged having regard to the details in the documents provided.
Interest rates would be readily calculable by a competent professional, it said.
On Friday, a three-judge Supreme Court sent the matter back to the High Court for reconsideration.
Chief Justice Frank Clarke, on behalf of the court, said the bank should amend its claim to include such details as it may think appropriate and further evidence to "fill the evidential gap" which had been identified before the High Court reconsiders it.
Mr Justice Clarke considered the special indorsement of claim provided by the bank contained "insufficient detail" as to how the sum was calculated so as to meet the rules of the Superior Courts.
It was possible to rely on documentation such as statement of account to provide sufficient particulars but only where such documents are incorporated by reference to the text in the indorsement of claim, he said.
No such incorporation occurred here.
A plaintiff must establish the debt is due on its face before it is necessary for a defendant to establish a defence which meets the threshold for a plenary hearing over the judgment application, he said.
While the basis for there being a claim was fully set out by the bank in general terms, it did not seem to him the the evidence as to why the precise sum claimed was said to be owed “amounted to anything more than mere assertion.”
In particular, it was not clear what calculation led to the assertion that the sum claimed was the precise amount due, nor as to the amount of capital and interest or whether it included surcharges and/or penalties, he said.