Possession on Term-Expired Mortgages: No Discovery and No Oral Variation Against Written Loan Terms

1) Introduction

Mars Capital Finance Ireland DAC v O'Connor and Anor concerned a mortgagee’s claim for possession of a principal private residence at 72 Parkmore Drive (including the former laneway between Nos. 70 and 72), Terenure, Dublin 6W. The Plaintiff, Mars Capital Finance Ireland DAC, was the assignee/transferee of two AIB-originated loan facilities (initially €250,000 and €300,000) secured by a Mortgage/Charge dated 16 February 2009.

The matter came before the High Court by way of an appeal from the Circuit Court order of 18 March 2025. By virtue of the Courts of Justice Act 1936, the appeal proceeded as a de novo rehearing. The property was accepted to be a principal private residence engaging section 3 of the Land and Conveyancing Law Reform Act 2013.

The Defendants’ resistance focused less on denying the existence of the written loan and mortgage documents and more on (i) allegations of misallocation of repayments across what they said were three accounts (one of which had been redeemed), (ii) the contention that an “engineered” or “artificial” default had been created, (iii) reliance on alleged repayment arrangements, and (iv) a request that the Court either order discovery or direct the Plaintiff to file a further affidavit addressing those matters.

2) Summary of the Judgment

Mr Justice Conleth Bradley granted the Plaintiff an order for possession. The Court held that the Plaintiff had proved (a) its ownership of the two loans and the associated security, (b) the Defendants’ default and the making of demands for payment, (c) that the loan terms had expired (so the full sums were due), and (d) that possession had been demanded and refused.

The Court rejected the Defendants’ attempt to delay or derail the possession claim through discovery or further affidavit evidence, emphasising that disputes about quantum (how much is due) and collateral complaints about account administration did not displace the written contractual framework that grounded the power of sale and consequent entitlement to possession.

3) Analysis

3.1 Precedents Cited

• Anglo Irish Bank Corporation plc v. Fanning [2009] IEHC 141
  The Court relied on Dunne J.’s discussion of the mortgagee’s entitlement to possession where default is established, including the proposition (rooted in earlier authority) that historically there was no general right to refuse a mortgagee possession once the entitlement had accrued. Bradley J. used Fanning to support a practical point central to this case: where there is undeniable default and the loan term has passed, an order for possession may be necessary to enable realisation of the debt.
• Birmingham Citizens Permanent Building Society v. Caunt
  Quoted through Fanning, this authority was deployed for the classic statement that a court did not traditionally “deny a mortgagee” the appropriate order once the right to possession arose (subject only to limited case-management adjournments where there is a realistic prospect of redemption or satisfaction). The quotation reinforced the Court’s unwillingness to entertain delay tactics absent a legally relevant defence to the mortgagee’s accrued right.
• Promontoria (Arrow) Limited v. Mallon & Shanahan [2018] IEHC 145
  Used primarily for its articulation of the parol evidence rule and public-policy rationale: oral evidence is not admissible where introduced to contradict a written agreement. Bradley J. invoked Mallon by analogy to answer the Defendants’ reliance on alleged oral arrangements or informal understandings said to alter the written repayment obligations.
• Ulster Bank v Dean [2012] IEHC 248 (as referred to in Mallon)
  The passage cited in the judgment underscores the inadmissibility of attempting to alter clear facility terms by oral testimony. In this case, it supported the Court’s conclusion that alleged side arrangements (e.g., informal payment plans) did not displace the written terms underpinning default and enforceability.
• Macklin v. Graecen & Co. [1983] I.R. 61 and O'Neill v. Ryan [1992] 1 I.R. 166
  Cited (via Dean) as foundational Irish authorities for the parol evidence principle: a party cannot adduce oral evidence to contradict the reasonable construction of a written agreement. Their influence in this judgment is indirect but material: they supply the doctrinal basis for refusing to treat alleged verbal assurances as a defence to a possession claim founded on written mortgage instruments.
• Tennants Building Products Limited v O'Connell [2013] IEHC 197
  Cited (again via Mallon) for the modern approach to collateral contracts: they may in principle vary a written contract, but only on cogent evidence, often including written pre-contractual materials shown to have induced entry into the principal contract. This was relevant to the Defendants’ type of argument (verbal arrangements said to change repayment dynamics): generalised assertions were not enough to displace the written documentation.
• Danske Bank v Duggan [2018] IECA 203
  This authority was central to disposing of the Defendants’ request for discovery. The Court of Appeal’s statement that discovery is not available in summary summons proceedings was applied by analogy to reject discovery as a mechanism to expand or delay this possession claim. The judgment emphasised the broader procedural point: where a dispute truly requires discovery, the matter is generally unsuitable for summary-type resolution and must proceed in a way that permits pleadings and, if necessary, discovery.

3.2 Legal Reasoning

1. Standing/Title to Sue established by documentary transfer chain
   The Plaintiff proved ownership of the two loans and associated security through the Deed of Transfer and the Deed of Conveyance and Assignment, together with “goodbye” letters from AIB and “hello” letters from the Plaintiff. The Court accepted this as sufficient proof that Mars was the party entitled to enforce the mortgage security.
2. Contractual framework: written mortgage terms controlled
   The Court examined the Mortgage/Charge provisions on “Total Debt,” demand, events of default, and the lender’s powers. The judgment treats the written terms as clear and operative: once default occurs and demand is made (and/or the debt becomes due), the security becomes enforceable.
3. Default plus loan-term expiry meant the full sums were due
   Bradley J. treated two triggers as decisive: (i) default in agreed repayments and (ii) expiry of the contractual loan terms (20 years from 3 September 2002; 15 years from 18 March 2005). The Court rejected the suggestion that statements showing “€0.00” monthly repayments required clarification: by the relevant time, the loans had reached term and the total sums were due and owing.
4. Demand for payment and demand for possession were proved
   The Plaintiff demanded payment by letter dated 11 January 2022 and demanded possession by letter dated 18 May 2022. Possession was refused. On these facts, the Court found the entitlement to possession made out.
5. CCMA compliance supported the propriety of enforcement steps
   The Plaintiff’s evidence addressed the Code of Conduct on Mortgage Arrears (CCMA), including “not co-operating” classification and notification requirements. The Court noted the Defendants did not appeal the “not co-operating” decision when notified, supporting the Plaintiff’s position that proceedings were not procedurally barred by CCMA constraints.
6. “Engineered default,” third-loan redemption, and payment allocation did not answer the possession claim
   The Court treated the redemption of a third loan as irrelevant to enforceability of the two outstanding loans. Allegations about misallocation of repayments and “artificial default” were not supported by sufficient evidence to displace the accrued right to enforce; disputes about quantum were identified as matters capable of being addressed elsewhere (the judgment specifically points to separate summary proceedings).
7. No discovery (and no further affidavit direction) to reframe the case
   The Court held the Defendants’ discovery request was misconceived in these possession proceedings, noting that discovery was being pursued in separate proceedings (Mars Capital Finance DAC v Dolores O'Connor and David O'Shea (Record No. 2024 177S)) and was not relevant to the present application. Reliance on commentary and procedural rules concerning summary judgment practice was rejected as not applicable to this possession claim.
8. Alleged oral arrangements could not vary the written loan documents
   Applying the parol evidence line of authority (notably Promontoria (Arrow) Limited v. Mallon & Shanahan [2018] IEHC 145 and its cited jurisprudence), the Court concluded that any claimed oral agreement (e.g., repayment at €2,000) did not amend or displace the written contractual obligations in a way that could defeat possession.

3.3 Impact

The judgment consolidates a practical enforcement principle in Irish mortgage possession litigation (particularly for principal private residences under the 2013 Act): once the mortgagee proves assignment/title, default, demand, and (where applicable) term expiry, the Court is unlikely to allow the proceedings to be diverted into wider forensic disputes about account history, payment allocation, or alleged informal arrangements—especially where those disputes do not amount to a legally sustainable defence to the accrued enforcement right.

Procedurally, the decision signals a restrictive approach to using discovery (or directions for further affidavits) as a delaying mechanism in possession claims. Substantively, it reinforces that term expiry is a powerful and often underappreciated route to enforceability: even apart from monthly arrears, once the contractual term ends, the debt becomes payable in full, strengthening the mortgagee’s entitlement to enforce.

4) Complex Concepts Simplified

• De novo rehearing: the High Court hears the appeal afresh, considering the evidence as if for the first time, rather than merely reviewing the Circuit Court’s reasoning.
• Principal private residence (2013 Act): special statutory rules apply before a lender can recover possession of a borrower’s home, particularly for mortgages created before 1 December 2009.
• Power of sale / right to possession: once the borrower is in default and the contractual and statutory preconditions are met (including demand where required), the lender can enforce the security, typically requiring possession to sell the property.
• Parol evidence rule: where parties have reduced their agreement to writing, oral evidence cannot generally be used to contradict or vary the written terms (subject to limited exceptions, such as a properly proven collateral contract).
• Collateral contract: a separate binding promise said to induce entry into the main contract. Courts require strong (“cogent”) evidence—often documentary—to accept it.
• CCMA “not co-operating”: a classification with consequences for enforcement timing; borrowers are typically informed and given an opportunity to appeal. Failure to appeal may weaken later procedural objections.
• Registry of Deeds vs Land Registry: the Registry of Deeds records deeds affecting unregistered land; registration helps evidence title/transfer but is not the same as Land Registry title registration.

5) Conclusion

Mars Capital Finance Ireland DAC v O'Connor and Anor reaffirms that, in a possession claim grounded on a written mortgage, the Court’s focus is on whether the lender has proved entitlement: ownership of the debt and security, default (and/or term expiry), demand, and refusal to deliver possession. Attempts to introduce broader disputes—via discovery requests, alleged oral repayment arrangements, or complaints about payment allocation—will not generally prevent possession unless they establish a legally credible defence within the constraints of the written agreements and applicable procedure.