1. Introduction

This High Court judgment of O’Donnell J in Start Mortgages DAC & Mars Capital Finance Ireland DAC v Curtis [2025] IEHC 684 is an important addition to the growing body of Irish case law dealing with mortgage possession proceedings following loan sales, particularly under s. 62(7) of the Registration of Title Act 1964 (“the 1964 Act”).

The case arose as an appeal from a Circuit Court decision which had refused a summary order for possession and had instead remitted the matter to plenary hearing. The plaintiffs/appellants were Start Mortgages DAC (“Start Mortgages”) and Mars Capital Finance Ireland DAC (“Mars Capital”), both well-known acquirers of residential mortgage loan portfolios. The original lender and charge holder was Permanent TSB plc (“Permanent TSB”). The defendants were the borrowers/homeowners, Thomas Curtis and Sarah Griffin Curtis.

The core background facts were largely uncontested:

• In 2008 the defendants obtained a home loan of €330,000 from Permanent TSB, repayable over 30 years at 4.9% interest.
• The loan was secured by a mortgage/charge over the defendants’ property comprised in Folio 52042F, County Meath.
• The loan terms provided for acceleration (the entire balance becoming immediately due) on default of two monthly repayments.
• No repayments had been made since September 2015 despite demands and compliance with the Central Bank’s Code of Conduct on Mortgage Arrears (CCMA).

What was disputed was not so much the existence of the loan or the arrears, but whether the plaintiffs had adequately proved:

1. That Start Mortgages (and later Mars Capital) had become the legal owners of the charge; and
2. Crucially, that they had also acquired the legal title to the underlying loan/debt itself, so as to be entitled to a summary possession order under s. 62(7) of the 1964 Act.

The defendants’ strategy on appeal was to rely on technical objections to the evidence of assignment – pointing to:

• the absence of the underlying mortgage sale agreement (to which the Deed of Transfer referred);
• a misdescription of the second defendant as “Sandra” instead of “Sarah” in the schedule to the Deed; and
• an alleged gap in the proof linking the loan offer to the registered charge.

The plaintiffs, for their part, advanced both:

• a conventional argument based on the need to show assignment of both loan and charge; and
• a novel argument based on s. 64(4) of the 1964 Act, contending that an assignee of the charge need not prove transfer of the underlying loan, but only that the principal sum had become due under the original mortgage or charge.

O’Donnell J ultimately:

• allowed the appeal,
• granted the summary possession order under s. 62(7),
• held that the plaintiffs had proved both ownership of the charge and transfer of the loan on the balance of probabilities, and
• declined to decide the novel argument under s. 64(4), flagging that it would require more extensive submissions and that it runs contrary to established authority.

The key practical significance of the decision is the clarification of the evidential threshold for proving assignment of loans and securities in summary possession proceedings, and the court’s firm rejection of speculative or purely technical defences where the borrowers do not controvert the factual narrative of the loan, security and default.

2. Summary of the Judgment

2.1 Outcome

The High Court allowed the appeal from the Circuit Court. It held that:

• The plaintiffs had satisfied the two “core proofs” required by the Supreme Court in Bank of Ireland v Cody [2021] IESC 26 for an order under s. 62(7): ownership of the charge, and the existence and exercisability of the right to possession.
• The documentary and affidavit evidence, including the Deed of Transfer from Permanent TSB to Start Mortgages, its Schedule 1, and the “hello/goodbye” letters, were sufficient to establish that legal title to the loan and associated security had passed to Start Mortgages, and that Mars Capital was the current registered owner of the charge.
• Minor clerical errors (such as misnaming “Sarah” as “Sandra” in the schedule) did not undermine the validity of the assignment or create any genuine doubt about the identity of the security.
• The absence of the referenced mortgage sale agreement did not prevent the court from understanding and giving effect to the Deed of Transfer, which was clear on its face as to the assignment of specified loans and securities.
• The Circuit Court’s concerns about proof of assignment were unfounded on the evidence; a plenary trial was not necessary, and summary relief was appropriate.

2.2 Treatment of the novel s. 64(4) argument

The plaintiffs contended that s. 64(4) of the 1964 Act, properly interpreted, meant they did not need to prove transfer of the underlying loan as such, provided they could show that the principal sum had become due under the charge.

O’Donnell J explicitly declined to decide this point, concluding that:

1. The argument was contrary to the “established approach” of the High Court and Court of Appeal to s. 62(7) applications.
2. The appeal could be fully resolved on orthodox principles, without resort to s. 64(4).
3. Given its novelty and potential to change the legal landscape, any determination would require far more detailed argument than was available in this case.

2.3 Costs and further directions

The court indicated a provisional view that the plaintiffs, having been fully successful, were entitled to their costs in the High Court and Circuit Court, subject to adjudication in default of agreement. The matter was listed for a further short hearing to finalise orders and consider any application for a stay on the possession order.

3. Legal and Factual Background

3.1 The loan and security

The original facility was a home loan from Permanent TSB to the defendants:

• Offer letter dated 25 June 2008, accepted on 3 July 2008.
• Principal: €330,000; term: 30 years; interest rate: 4.9%.
• Security: mortgage and charge over the defendants’ property at Muff, Nobber, Co. Meath, registered in Folio 52042F.
• Standard terms and conditions providing for:
  • acceleration of the entire debt on default of two monthly payments; and
  • the lender’s entitlement to possession to realise the security in such an event.

Affidavit evidence (not seriously controverted by the defendants) established:

• Multiple defaults over a protracted period,
• No repayments since September 2015, and
• Demand letters and a demand for vacant possession issued in June 2017.

3.2 Procedural history and parties’ status

• Civil Bill for possession issued in the Circuit Court on 4 August 2017 in the name of Permanent TSB.
• Start Mortgages claimed to have acquired the relevant loans and securities by assignment from Permanent TSB and was substituted as plaintiff in the Circuit Court.
• Subsequently, Mars Capital claimed to have acquired the same assets from Start Mortgages following a further assignment. This occurred before the Court of Appeal’s decision in Pepper Finance Corporation (Ireland) DAC v O’Reilly [2025] IECA 140 (which concerns the procedural treatment of such post-commencement transfers), so Mars Capital was joined as a co-plaintiff.
• At the appeal stage, Start Mortgages no longer had an interest in the proceedings; Mars Capital, as the current registered owner of the charge, prosecuted the appeal.

3.3 Evidence before the court

The main affidavits included:

• Jacqueline O’Brien (Permanent TSB) – setting out the original loan, security and default.
• Eva McCarthy (litigation manager, Start Mortgages) – dealing with the transfer from Permanent TSB to Start Mortgages.
• Gareth Kavanagh and Gráinne Dever – updating debt figures and dealing with Mars Capital’s position.
• Thomas Curtis (first defendant) – two affidavits focused largely on technical objections rather than denying indebtedness or default.

The defendants did not:

• deny receiving the loan,
• deny executing the mortgage/charge, or
• deny defaulting on repayments.

Their case centred on alleged insufficiencies in proof of assignment and linkage between the loan agreement and the charge.

4. Statutory and Doctrinal Framework

4.1 Section 62(7) of the Registration of Title Act 1964

Section 62(7) governs applications for possession based on registered charges created before 1 December 2009 (the date from which the Land and Conveyancing Law Reform Act 2009 altered the regime for mortgages).

In essence, s. 62(7) allows the registered owner of a charge to apply to the court for possession of the charged land “as if” the charge were a mortgage by deed. The courts have interpreted this as creating a statutory route for summary possession applications, subject to proof of specified criteria.

4.2 The Cody “two proofs”

The Supreme Court’s decision in Bank of Ireland v Cody [2021] IESC 26 is the leading authority. At para. 49, it held:

“The owner of a charge who seeks to obtain possession pursuant to s. 62(7) has to prove two facts:
(a) That the plaintiff is the owner of the charge;
(b) That the right to seek possession has arisen and is exercisable on the facts.”

The first proof (ownership of the charge) is usually straightforward where the plaintiff is the registered owner:

“The summary process is facilitated by the conclusiveness of the Register as proof that the plaintiff is the registered owner of the charge is a matter of production of the folio, and, as the Register is by reason of s. 31 of the Act of 1964 conclusive of ownership, sufficient evidence is shown by that means: see the discussion in the Court of Appeal in Tananger DAC v Kane [2018] IECA 352.” (para. 50)

4.3 Conclusiveness of the Register (s. 31 of the 1964 Act)

Section 31 of the 1964 Act provides that the register is conclusive evidence of title. The Court of Appeal in Tananger DAC v Kane confirmed that a defendant cannot use summary possession proceedings as a forum to challenge the correctness of the register. If the plaintiff is shown as the registered owner of the charge, that proof is sufficient for the first Cody requirement.

In this case, there was no dispute that:

• Permanent TSB was initially registered as owner of the charge,
• Start Mortgages became the registered owner following assignment, and
• Mars Capital was the registered owner by the time of the High Court appeal.

Thus, the first Cody proof was clearly satisfied.

4.4 Assignment of debts and securities: s. 28(6) of the 1877 Act

Section 28(6) of the Supreme Court of Judicature (Ireland) Act 1877 sets out the requirements for a statutory legal assignment of a debt (a “chose in action”). Broadly:

• The assignment must be in writing under the hand of the assignor;
• It must be absolute and not by way of charge only; and
• Express notice in writing must be given to the debtor.

Once these conditions are met, the assignee may sue in its own name. In mortgage cases, this principle is intertwined with the need to show that both:

• the loan (personal obligation to repay) and
• the charge/mortgage (security over land)

have been effectively transferred to the party seeking possession.

4.5 Section 64 of the 1964 Act

Section 64 deals with the effect of registered charges. Subsection (4) – invoked by the plaintiffs in a novel way – concerns the treatment of the principal money secured by the charge.

Although the exact text of s. 64(4) is not reproduced in the judgment, the plaintiffs argued that it could be read so that the assignee of the charge need not demonstrate assignment of the underlying loan, so long as it is shown that the principal sum has become due under the charge itself. This would, if correct, significantly reduce the evidential burden on purchasers of loan portfolios.

O’Donnell J expressly left this question open and decided the case on the conventional approach requiring proof of assignment of both the loan and the charge.

5. Precedents and their Influence on the Decision

5.1 Bank of Ireland v Cody [2021] IESC 26

As noted, Cody supplies the fundamental two-step test for s. 62(7) applications. In this case:

• The first requirement (ownership of the charge) was met by the production of the folio showing Mars Capital as registered owner; this could not be challenged in these proceedings.
• The second requirement (right to possession having arisen and being exercisable) required proof of:
  • the loan agreement and its terms (especially acceleration on default);
  • the creation of the charge over the relevant property; and
  • the borrowers’ default and proper demands.

O’Donnell J followed Cody closely, structuring his analysis around these two proofs and emphasising that once both are shown on the balance of probabilities, the court is entitled to grant an order for possession.

5.2 Tananger DAC v Kane [2018] IECA 352

Cited via Cody, Tananger is authority for the proposition that the correctness of the Land Registry’s entries cannot be challenged as a defence in summary possession proceedings under s. 62(7).

This principle was important because:

• It foreclosed any argument that Start Mortgages or Mars Capital were not in truth owners of the charge, once the register showed them as such.
• It confined the live issues to whether the right to possession had arisen and whether the underlying loan had also been effectively assigned.

5.3 Mars Capital Finance Ireland DAC v Phelan [2025] IECA 117

In Phelan, the Court of Appeal (Binchy J) addressed a common situation: a loan purchaser appears as legal owner, but another entity may have funded the purchase and be the beneficial owner. The Court held:

“At the very most, it may be the case that the respondent holds the assets assigned to it under the Deed of Transfer on trust for Panelview, in which case it is the legal owner of those assets while Panelview may be the beneficial owner. Even if that is the case, however, the appropriate party for the proceedings would be the trustee, and not the beneficiary of the assets.”

The key doctrinal point is that legal ownership of the loan and security is sufficient; the plaintiff need not prove beneficial ownership. The trustee is the correct plaintiff in possession proceedings, even if someone else is economically interested.

O’Donnell J adopted this analysis via the Court of Appeal’s decision in Permanent TSB v Donohoe.

5.4 Permanent TSB v Donohoe [2025] IECA 222

Donohoe is central to this judgment. Costello P, applying Phelan, emphasised that:

“it has been established that a party seeking an order for possession does not need to show that they are the beneficial owner of the underlying debt, but is entitled to rely on their legal title to the debt.”

At para. 52, the Court of Appeal stated:

“In my judgment, it was incumbent on the High Court to consider the documentary evidence and to consider whether legal title to the loan, as well as the legal title of the charge, had passed from the Bank to Start Mortgages. If that was shown to have occurred, on the balance of probabilities, then that was the end of the matter …”

This passage is binding on the High Court and frames O’Donnell J’s task: he had to consider whether the Deed of Transfer, its schedules, and associated documents showed – on the balance of probabilities – that:

• legal title to the loan, and
• legal title to the charge

had passed to Start Mortgages (and thence to Mars Capital).

5.5 Mars Capital Finance Ireland DAC v Temple [2023] IEHC 94

The defendants relied on Temple (Simons J), where summary possession was refused because the plaintiff’s evidence on assignment was not sufficiently clear. In that case:

• The deed of transfer was heavily redacted;
• There was no clear connection on the face of the exhibited documents between the operative transfer clause and the schedule identifying the subject loans; and
• As a result, the High Court could not be satisfied that the specific loan in suit had been assigned.

O’Donnell J distinguished Temple on factual grounds:

• In the present case, the operative part of the Deed of Transfer was unredacted and clear: Permanent TSB absolutely assigned to Start Mortgages its rights, title and interest in specified “Underlying Loans” and “Mortgage Assets”.
• Schedule 1 – though redacted in respect of other borrowers – unequivocally identified the defendants’ loan and charge by:
  • account number (ending xxx9),
  • date of the facility letter (25 June 2008), and
  • property address.
• The “hello/goodbye” letters confirmed that the defendants’ loan account had been assigned and that payments should be made to Start Mortgages.

Accordingly, Temple was not seen as authority for any general requirement to exhibit the entire mortgage sale agreement or to avoid redactions altogether; its outcome was driven by the specific evidential gaps in that case, which were not present here.

5.6 Pepper Finance Corporation (Ireland) DAC v O’Reilly [2025] IECA 140

Pepper Finance is mentioned mainly to explain why Mars Capital was joined as co-plaintiff. That decision addresses procedural issues where the loan is transferred after proceedings have commenced – particularly whether and how the new owner must be joined or substituted.

In this case, because the transfer to Mars Capital pre-dated Pepper Finance, Mars Capital was joined as co-plaintiff, and the appeal proceeded in its name as the party in interest.

6. The Court’s Legal Reasoning

6.1 First Cody proof – ownership of the charge

At the time of the Circuit Court hearing, Start Mortgages was the registered owner of the charge. By the time of the High Court appeal, the folio showed Mars Capital as the registered owner. The relevant folio extracts were exhibited.

Applying s. 31 of the 1964 Act and the authorities in Cody and Tananger, O’Donnell J held that:

• this conclusively proved ownership of the charge by Mars Capital for the purposes of s. 62(7); and
• the defendants could not challenge the correctness of the register in these proceedings.

6.2 Second Cody proof – has the right to possession arisen and become exercisable?

This proof requires examination of:

1. Existence and terms of the loan agreement.
2. Creation and scope of the security (mortgage/charge).
3. Borrowers’ default, acceleration and compliance with pre-possession requirements (e.g. CCMA).

6.2.1 Loan agreement and linkage to the charge

Ms O’Brien’s affidavit, with exhibits, showed:

• Offer letter of 25 June 2008 to Thomas and Sarah Griffin Curtis, for a €330,000 home loan, identified with an account number ending xxx9;
• Acceptance signed by both defendants on 3 July 2008;
• Mortgage/charge over the property in Folio 52042F, executed by the defendants and registered on 5 August 2008;
• Terms allowing acceleration of the entire debt after default in two monthly repayments; and
• Account statements for account xxx9 showing long-standing arrears and no payments since September 2015.

The defendants argued there was “uncertainty” as to whether:

• the property referred to in the loan offer, and
• the property described in the registered charge

were in fact the same, and whether the charge related to this particular loan at all. O’Donnell J found this suggestion “simply not credible”:

• The bank’s evidence consistently treated the loan offer, acceptance, and mortgage/charge as parts of a single transaction.
• The defendants provided no evidence that they had entered into two separate, parallel arrangements with Permanent TSB (which would be required to sustain their theory).
• They never asserted that Ms O’Brien’s narrative was wrong – they merely advanced technical arguments about proof.

On the balance of probabilities, the court was “fully satisfied” that:

“the loan offer, signed acceptance and mortgage/charge all form part of the same transaction.”

6.2.2 Default and demand

The court accepted the unchallenged evidence that:

• Multiple defaults had occurred; and
• No repayments had been made since September 2015 (a position unchanged up to the date of the appeal hearing).

Payment demands and a demand for vacant possession had been made in June 2017, and efforts had been made to comply with the CCMA.

Given the acceleration clause, these matters were sufficient to show that the right to possession had arisen and become exercisable, provided that legal title to the loan and charge were in the hands of the plaintiffs.

6.3 Proving assignment: from Permanent TSB to Start Mortgages

The core evidential task was to establish, in line with Donohoe, that legal title to the loan and charge had passed from Permanent TSB to Start Mortgages.

6.3.1 The Deed of Transfer and Schedule 1

Ms McCarthy’s evidence was that, as part of a sale of Permanent TSB’s loan book, the underlying facility, related security and causes of action in respect of the defendants’ loan were assigned to Start Mortgages. She exhibited the Deed of Transfer (1 February 2019).

Clause 2.1 of the Deed provided that the “Seller” (Permanent TSB):

“hereby grants, conveys, assigns, confirms, transfers and assures unto the Buyer absolutely, subject to the subsisting rights of redemption of the Borrowers… all its right, title, interest, estate, benefit and entitlement (past, present and future) in and under the Mortgage Assets, each Security, Underlying Loans, and each of the Finance Documents and the Seller’s right, title and interest as legal owner in and to the Ancillary Rights and Claims”.

Defined terms:

• “Underlying Loans” – loans and other credit facilities advanced to borrowers under “Underlying Loan Agreements”, with accounts and details “specifically set out in Schedule 1 … and which are transferred pursuant to this Deed”.
• “Underlying Loan Agreements” – the loan documents, facility letters and ancillary documents relating to each Underlying Loan.

Schedule 1 identified, inter alia, the defendants’:

• Mortgage/security – by reference to:
  • account number (ending xxx9),
  • date of the charge, and
  • property address at Muff, Nobber, Co. Meath.
• Loan/facility – by linking:
  • account xxx9, and
  • the facility letter dated 25 June 2008 addressed to “Sarah Griffin Curtis and Thomas Curtis”.

This matched the documentation exhibited by Ms O’Brien. O’Donnell J was satisfied that:

“the loan and security identified in Schedule 1 are the same as the loan and security exhibited by Ms O'Brien.”

6.3.2 “Hello” and “goodbye” letters

Ms McCarthy also exhibited the standard:

• “Goodbye” letters from Permanent TSB to the defendants, and
• “Hello” letters from Start Mortgages to the defendants,

which:

• identified the same account number ending xxx9,
• informed the defendants of the assignment of their loan, and
• directed that future repayments be made to Start Mortgages (which allocated a new account number).

These letters served as:

• evidence of actual notice to the debtors of the assignment (relevant under s. 28(6) of the 1877 Act), and
• practical confirmation linking the defendants' loan account to the assigned assets.

6.3.3 Compliance with the criteria for legal assignment

In light of the Deed of Transfer, its Schedule 1 and the notification letters, the court held that the transfer met the criteria of s. 28(6) of the 1877 Act: there was a written, absolute assignment of the loan and associated security, and notice had been given to the borrowers.

Therefore, Start Mortgages became the legal owner of the loan and charge. Its subsequent registration as owner of the charge on the folio reinforced this conclusion.

6.4 Addressing the defendants’ specific objections

6.4.1 The missing mortgage sale agreement

One of the defendants’ main arguments was that the Deed of Transfer referred to an underlying “mortgage sale agreement” which had not been exhibited. They speculated that this unseen agreement might contain provisions altering or limiting the transfer of the defendants’ loan and charge.

O’Donnell J rejected this argument as unfounded:

• In some cases, it may indeed be impossible to understand a deed of transfer without the underlying agreement, but this was not such a case.
• The operative part of the Deed of Transfer was unredacted and “clear on its face” in effecting an absolute assignment of the “Underlying Loans” and “Mortgage Assets” identified in Schedule 1.
• The only redactions were to parts of the schedule relating to other borrowers, which were properly redacted for confidentiality reasons and did not touch on the defendants’ entries.
• There was “no basis for considering that the mortgage sale agreement altered or impacted on the validity and extent of those transfers.”

Thus, unlike in Temple, where the redactions and lack of clarity gave rise to a genuine evidential gap, here the Deed could be given full effect without sight of the sale agreement.

6.4.2 The “Sandra” versus “Sarah” misdescription

In Schedule 1, the second defendant was described as “Sandra” rather than “Sarah” Griffin Curtis. The defendants sought to use this as a basis for arguing uncertainty about the identity of the transferred security.

The court considered this plainly a clerical error:

• All other identifying details – account number, property address, date of the facility letter – unambiguously connected the schedule entry to the defendants’ loan and charge.
• Start Mortgages was in any event registered as owner of the charge on the folio, which was conclusive of that fact.

O’Donnell J held that this error did not “in any sense” call into question the nature or efficacy of the transfer.

6.4.3 Alleged uncertainty linking loan offer and mortgage

As noted above, the defendants posited that there might be separate transactions – the loan offer and a separate mortgage for a different loan – such that the charge in the folio might not secure the specific loan at issue.

The court described this argument as “manifestly unfounded”:

• The bank’s evidence consistently treated them as one transaction;
• There was no evidence of any other loan facility or mortgage executed by the defendants with Permanent TSB; and
• The defendants never stated on oath that the bank’s description was wrong; they only argued about supposed gaps in proof.

This highlights the court’s unwillingness to allow borrowers to defeat summary applications by bare speculation not grounded in any positive, sworn factual case.

6.5 The novel s. 64(4) argument: why it was not decided

The plaintiffs argued that, properly construed, s. 64(4) meant that an assignee of the charge need only prove that the principal sum secured by the charge had become due under the original mortgage; proof of assignment of the underlying loan was allegedly unnecessary.

O’Donnell J’s approach was cautious:

1. He noted that this interpretation “runs contrary to the established approach” of both the High Court and Court of Appeal (especially in light of Donohoe).
2. He considered that the appeal could be satisfactorily resolved on orthodox principles – by examining the assignment evidence – without resorting to a re-interpretation of s. 64(4).
3. He emphasised that, given the novelty and potentially far-reaching implications of the argument, a “considered decision” would require far more extensive submissions and possibly higher court input.

Consequently, the judgment does not alter the existing rule: a party seeking possession after a loan sale should still expect to prove, on the balance of probabilities, transfer of both:

• the legal title to the loan; and
• the legal title to the charge.

7. Simplifying Key Legal Concepts

7.1 Legal vs beneficial ownership

In many loan sales, the entity registered as owner of the charge (and named as assignee in the Deed) is not the ultimate economic owner of the loan. The legal owner may hold the loans “on trust” for an investment vehicle.

The courts, particularly in Phelan and Donohoe, have made clear that:

• What matters in possession proceedings is legal ownership; the legal owner is entitled to sue.
• The beneficial owner (e.g. an SPV or fund) does not need to be a party, and its identity is immaterial to the borrower’s obligations.

7.2 Assignment of a loan

A loan is a “chose in action” – a right that can only be enforced by legal action. Historically, only the original lender could sue. Section 28(6) of the 1877 Act changed this by permitting a legal assignment:

• The assignment must be in writing and signed by the lender (assignor).
• It must be “absolute” – i.e. the entire interest is transferred, not just some limited security.
• The borrower must receive written notice of the assignment.

Once these steps are taken, the new lender can sue in its own name – and, in the context of mortgages, seek possession.

7.3 Charge vs loan

The “loan” and the “charge” are separate legal concepts:

• The loan is the contract between borrower and lender setting out how much was borrowed, the repayment schedule, the interest rate, and events of default.
• The charge is a proprietary interest in the land, granted to secure the loan. It gives the lender the right, ultimately, to take possession and sell the property if the borrower defaults.

After the decision in Donohoe, courts emphasise that an assignee seeking possession must prove that both:

• the loan; and
• the charge

have been transferred to it, unless and until a higher court adopts a different reading of s. 64(4).

7.4 Summary vs plenary proceedings

A summary application (such as under s. 62(7)) is intended to be faster and based on affidavit evidence. It is appropriate where:

• the facts are largely undisputed; and
• no substantial defence is shown that would justify a full trial.

If there is a genuine, material conflict of fact – or a complex legal issue requiring full argument – the court may remit the matter to plenary hearing (a full trial with oral evidence and cross-examination).

In this case, the Circuit Court had chosen the plenary route. The High Court disagreed, finding the alleged disputes to be speculative and technical rather than real, and therefore granted summary relief.

7.5 “Hello” and “goodbye” letters

These letters – standard in loan sales – serve dual functions:

• Consumer-facing: to inform borrowers that their loan has been sold and where to make payments.
• Legal: as evidence that the borrower has received notice of the assignment, satisfying the requirement under s. 28(6) of the 1877 Act.

8. Impact and Future Significance

8.1 For lenders and loan purchasers

The judgment provides a clear checklist for institutions seeking summary possession after acquiring loans:

• Folio evidence: produce the relevant folio showing the plaintiff as registered owner of the charge. This satisfies the first Cody proof.
• Original loan documentation: exhibit the facility letter, acceptance, and terms and conditions, clearly identifying:
  • the borrowers,
  • the property, and
  • the account number.
• Mortgage/charge instrument: show that the borrowers executed a charge over the same property, clearly connected to the loan account.
• Assignment evidence:
  • exhibit the Deed of Transfer with operative provisions unredacted;
  • include the relevant portion of the schedule identifying the specific loan and security (account number, facility letter date, property address, borrowers’ names);
  • exhibit “hello/goodbye” letters as proof of notice of assignment to the borrowers.
• Arrears and default: provide account statements and demand letters showing non-payment and triggering of acceleration clauses.

The decision also confirms that:

• Redactions made for confidentiality reasons in relation to other borrowers are permissible, provided they do not obscure the connection between the transfer clause and the schedule relating to the defendant’s loan.
• Minor clerical errors (e.g. a mis-spelt or mis-stated first name) are unlikely to be fatal where other identifiers are consistent and unambiguous.
• Courts will not insist on production of every upstream contractual document (such as the main mortgage sale agreement) if the Deed of Transfer itself is clear as to the nature and extent of the assignment.

8.2 For borrowers and respondents in possession cases

The judgment signals that:

• Bare, technical or speculative attacks on the lender’s documentation – unaccompanied by a positive, sworn account disputing the loan, security or default – are unlikely to prevent a summary possession order.
• To successfully resist summary proceedings, defendants must:
  • raise a concrete factual dispute (e.g. denying execution of the mortgage, disputing the amount claimed, pointing to inconsistent assignment documents); or
  • identify a genuine legal issue requiring full argument.
• Merely highlighting theoretical possibilities (“there might have been another loan” or “the unexhibited agreement might say something different”) will not normally suffice.

8.3 For the development of Irish mortgage law

The decision consolidates and refines, rather than revolutionises, existing law:

• It reinforces the approach in Cody, Tananger, Phelan and Donohoe on:
  • the conclusiveness of the register;
  • the sufficiency of legal (as opposed to beneficial) ownership; and
  • the need to prove transfer of both the loan and the charge.
• It clarifies the limited reach of Temple, confining that decision to its specific evidential context and preventing it being used as a broad weapon against redacted or partially exhibited deeds.
• It opens, but does not decide, the potential for a re-interpretation of s. 64(4) of the 1964 Act. The court’s cautious stance will likely dissuade lower courts from accepting the plaintiffs’ broader reading of s. 64(4) absent appellate endorsement.

In practice, this judgment will make it somewhat easier for purchasers of loan books to obtain summary possession orders where:

• their documentation is properly structured and exhibited; and
• the borrowers do not mount a substantive factual or legal defence.

9. Conclusion

Start Mortgages DAC & Mars Capital Finance Ireland DAC v Curtis [2025] IEHC 684 is a significant High Court decision in the ongoing evolution of Irish mortgage possession jurisprudence in the era of large-scale loan sales.

The key takeaways are:

• The two-part test in Bank of Ireland v Cody remains the governing framework for s. 62(7) applications: proof of ownership of the charge and proof that the right to possession has arisen and is exercisable.
• Being the registered owner of the charge, as shown on the folio, is conclusive proof of ownership for the first limb.
• Under Permanent TSB v Donohoe, a plaintiff must still prove that legal title to both the loan and the charge has been assigned to it, but not that it is the beneficial owner.
• Properly drafted and exhibited Deeds of Transfer, with clear schedules linking the loan and security by account number, facility letter and property address, will normally suffice to establish assignment on the balance of probabilities.
• Courts will distinguish between genuine evidential gaps (as in Temple) and mere speculation. Minor clerical errors or the non-production of every upstream document will not defeat an otherwise clear case.
• Technical or speculative defences, unsupported by positive evidence, will not justify remitting possession applications to plenary hearing.
• The novel, expansive reading of s. 64(4) of the 1964 Act remains unresolved and, for now, practitioners should continue to prepare assignment proofs in accordance with the established, more demanding standard.

In sum, the judgment strengthens the position of assignee lenders who present coherent and well-supported evidence of assignment, while also providing clarity on the limits of technical defences in summary mortgage possession proceedings.