Redacted Global Transfer Deeds Are Insufficient Proof of Mortgage-Debt Ownership in Summary Possession Appeals: Remittal to Plenary Hearing

1) Introduction

Pepper Finance Corporation (Ireland) Designated Activity Company v O'Reilly [Otherwise O'Reilly] (Approved) ([2026] IEHC 16, High Court, Simons J., 15 January 2026) is a Circuit appeal arising from a possession order made under s. 62(7) of the Registration of Title Act 1964 (as applied).

The proceedings were originally taken by KBC Bank Ireland plc, later substituted (ex parte) by Pepper Finance Corporation (Ireland) DAC. The defendant, Ms O’Reilly, appeared in person and resisted enforcement on multiple grounds, including (centrally) that Pepper Finance had not adequately proved it owned the underlying debt said to be secured by the registered charge, given the form and redactions of the transfer documentation relied upon.

The key issues on appeal were:

whether Pepper Finance proved it was the registered owner of the charge;
whether Pepper Finance proved it was the owner/holder of the underlying debt so that the “principal money” had become due to it;
what the court should do where proof is incomplete in a summary-type possession process—i.e. whether to dispose of the case or remit it to a plenary hearing;
procedurally, how post-judgment assignments should be reflected in appellate proceedings (addressed earlier by the Court of Appeal on a consultative case stated).

2) Summary of the Judgment

The High Court held that Pepper Finance had proved, by the folio entry, that it was the registered owner of the charge. However, it had not yet proved—on the evidence presented—that it was the owner/holder of the underlying debt.

The decisive evidential deficiency was the reliance on a heavily redacted “Global Deed of Transfer (Excluding Property)” dated 4 February 2022, whose recitals were entirely blacked out and which appeared “parasitic” on other documents (including a “Mortgage Sale Agreement”) not exhibited. Without the definitions and recitals, the court could not determine the deed’s legal effect or whether it transferred the specific debt at issue.

The court therefore refused to affirm possession on a summary basis and exercised its discretion under Order 5B to remit the appeal to plenary hearing in the High Court, preserving all defences and counterclaim possibilities.

3) Analysis

3.1 Precedents Cited

(a) Pepper Finance Corporation (Ireland) DAC v. O'Reilly [2025] IECA 140

This Court of Appeal decision answered a consultative case stated on whether, where an assignment occurs after the Circuit Court possession order but before the High Court appeal, the assignee should be substituted or joined. The Court of Appeal stated that, in general, substitution is appropriate, subject to exceptions where the assignor remains a necessary party (e.g., a counterclaim against the original plaintiff).

In [2026] IEHC 16, substitution was already effected (with safeguards typical of ex parte substitution), but the practical significance of the Court of Appeal’s guidance is apparent: substitution solves the “correct party” problem procedurally, yet it does not relieve the substituted plaintiff of the burden of proving its substantive entitlement—especially proof that it owns the debt whose enforcement is sought.

(b) Bank of Ireland Mortgage Bank v. Cody [2021] IESC 26, [2021] 2 IR 381

This Supreme Court authority provided the controlling framework for how courts should approach affidavit-based, summary-style possession (and summary judgment generally), especially when facts or legal issues cannot fairly be resolved on affidavit. Simons J. applied the Cody spectrum: where proofs are clear, summary disposal may be possible; where proofs are incomplete or credible defences arise, remittal to plenary hearing is appropriate.

Crucially, Cody is invoked here not because the defendant established a complete defence, but because the plaintiff had not yet established its proofs (and the court could not adjudicate meaningfully on contested/incomplete material).

(c) Tanager DAC v. Kane [2018] IECA 352, [2019] 1 IR 385

Tanager DAC v. Kane (later approved in Bank of Ireland Mortgage Bank v. Cody) was used to draw a sharp distinction between:

the conclusiveness of the land register as to the charge ownership (s. 31 Registration of Title Act 1964), and
the separate question of entitlement to enforce because the secured debt is due and owing to the moving party.

The judgment reinforces that defendants generally cannot attack the correctness of the register as a defence in summary possession proceedings; rather, they must bring separate proceedings against the Property Registration Authority if challenging the register. Simons J. treated this as dispositive of the “charge ownership” limb, but not of the “debt ownership” limb.

(d) Pepper Finance Corporation (Ireland) Ltd v. Macken [2021] IECA 15

Simons J. quoted Pepper Finance Corporation (Ireland) Ltd v. Macken to emphasise that courts must be given a proper account of complex transactions: “a partial explanation” should not be tendered. Although Macken arose in a different context, its admonition was applied here to the presentation of mortgage-debt assignment evidence. The message is practical and evidential: where a party relies on a structured sale/assignment, it must exhibit (or adequately explain) the key documents and defined terms necessary to allow the court to determine legal effect.

(e) Farrell v. Everyday Finance DAC [2024] IECA 16

This was referenced as an example of redaction justified by commercial sensitivity. Simons J. distinguished the present case: there was no reasoned affidavit basis explaining what was redacted and why, nor a tailored approach balancing privacy/commercial sensitivity against the court’s need to understand the operative legal transaction. The citation serves to show that redaction is not per se impermissible, but must be justified and must not render the evidence unintelligible.

(f) Crailsheimer Volksbank, Case C‑229/04, EU:C:2005:640

The defendant invoked Council Directive 85/577/EEC (doorstep selling) and relied on Crailsheimer Volksbank for the proposition that the Directive may apply even if the trader was unaware that a third party concluded the contract in a doorstep situation. Simons J. did not decide this issue, holding it unsuitable for summary determination in circumstances where the case was being remitted to plenary hearing in any event.

Still, its inclusion signals that the plenary hearing may involve EU consumer protection doctrines and fact-sensitive inquiry into how the loans were negotiated and whether any statutory/Directive-based remedies are engaged.

3.2 Legal Reasoning

(i) The two essential proofs under s. 62(7)

The judgment separates, analytically and evidentially, the two proofs the moving party must establish:

Ownership of the registered charge (proved by the folio; register conclusive under s. 31); and
Entitlement to the “principal money” because the secured debt is due and owing to the plaintiff.

This structure is important: it prevents the common forensic slippage whereby a registered charge holder is assumed automatically to be entitled to the underlying debt in circumstances involving securitisation, portfolio sales, or other assignments.

(ii) Charge ownership proved; debt ownership not proved

Pepper Finance satisfied the first limb because the folio showed it as charge owner (entry dated 3 March 2022). In line with Tanager DAC v. Kane, the court treated the register as conclusive in the possession forum.

But the second limb failed at this stage. Although the affidavit evidence exhibited loan documents, default history, demand (17 September 2015), and arrears, those materials primarily established that a debt became due—not that the debt became due to Pepper Finance. Where the lending relationship has passed through multiple entities, the plaintiff must show the chain by which it became the entitled creditor.

(iii) The evidential problem with the “Global Deed of Transfer”

The “Global Deed of Transfer (Excluding Property)” was central and yet, as presented, unusable:

the recitals were entirely redacted;
key defined terms (e.g., “Underlying Loan”) were used but not defined in the exhibited document;
the deed referred to other instruments (e.g., “Mortgage Sale Agreement”) not exhibited;
no adequate affidavit explanation was offered describing the redactions or justifying them.

The result was not merely that the defendant raised doubts; rather, the court itself could not interpret the deed or determine whether it effected the relevant assignment. The judgment lays down a practical evidential rule: if a party relies on a deed as proof of a legal proposition, it must exhibit it (and any necessary supporting instruments) in a “meaningful” form; redactions must be justified and must not deprive the court of the ability to determine legal effect.

(iv) Alleged onward transfer and the duty of candour in motion practice

The court noted an additional complicating assertion (not properly substantiated on affidavit) that Pepper Finance notified the defendant of a further transfer to Penryn Funding 2004 DAC. The judgment’s concern here is systemic: possession proceedings are often affidavit-driven and must proceed on clear, candid evidence as to who currently owns the enforceable debt. Any suggestion of onward transfer heightens the need for complete documentation and clear sworn evidence.

(v) Why remittal to plenary hearing (instead of dismissal or allowing the appeal)

Applying Bank of Ireland Mortgage Bank v. Cody, Simons J. held:

the plaintiff had not proved entitlement on the current record;
the defendant had not yet proved, definitively, that Pepper Finance lacked entitlement (because the record was incomplete, not conclusive);
the fair and proportionate course was to remit to plenary hearing to allow proper evidence (documentary and oral) and testing by cross-examination.

This is a notable example of Cody in action: the court treats plenary hearing as the appropriate mechanism where the affidavit record is inadequate to resolve a materially determinative question (here, the legal effect of the purported assignment documentation).

(vi) Treatment of other defences

The defendant raised consumer-law and conduct-based defences (doorstep-selling Directive; unfair terms under the 1995 Regulations and Directive 93/13/EEC; alleged Consumer Credit Act 1995 non-compliance; occupancy/receiver conduct; potential counterclaim). The court deliberately refrained from ruling summarily, especially given:

the case was already being remitted; and
the fact-sensitive nature of these issues; and
the court’s noted “own motion” obligation regarding Council Directive 93/13/EEC (i.e., courts may have to consider unfair terms issues even if not perfectly pleaded).

3.3 Impact

(a) Evidential standards for debt assignments in possession litigation

The clearest practical impact is on how assignees/purchasers of mortgage portfolios must evidence standing: it will not suffice to produce a redacted, self-referential deed that cannot be interpreted without missing schedules, recitals, and defined terms. If the court cannot ascertain the deed’s legal effect, the plaintiff risks remittal (delay and cost) and possibly ultimate failure.

(b) Redaction discipline: privacy and commercial sensitivity vs. intelligibility

The judgment does not prohibit redactions; it requires justification and intelligibility. It indicates a judicial preference for:

minimal redactions limited to third-party privacy;
sworn explanations of what is redacted and why;
court-controlled approaches (e.g., unredacted production to the court, confidentiality rings, or tailored disclosure) where sensitivity is genuine.

This may influence practice among loan owners and servicers who have historically relied on global sale documentation not drafted for litigation use.

(c) Reinforcing the analytical separation between “charge ownership” and “debt ownership”

The case reinforces that conclusiveness of the register (charge ownership) does not automatically resolve entitlement to enforce the secured debt, particularly in multi-step transfers. Future litigants can expect courts to scrutinise the debt chain of title even where the charge is registered in the plaintiff’s name.

(d) Increased resort to plenary hearings in contested portfolio-transfer cases

Where documentation is incomplete or where there are credible consumer-law/counterclaim issues, the decision confirms the availability—and appropriateness— of remittal to plenary hearing under Order 5B, consistent with Cody. This may reduce the number of cases capable of being disposed of “peremptorily” where assignment evidence is not litigation-ready.

4) Complex Concepts Simplified

Registered charge: the mortgage/charge recorded on the land register. If you are the registered owner of the charge, the register is generally treated as conclusive proof of that status in possession proceedings.
Underlying debt: the actual loan obligation (the money owed). A party seeking possession must typically show not only that it holds the charge, but that the secured debt is due and owing to it.
s. 62(7) Registration of Title Act 1964: the statutory route used here to seek possession where a registered charge exists and the principal money has become due.
Summary (affidavit) procedure vs. plenary hearing: summary determination relies mainly on sworn written evidence (affidavits). A plenary hearing involves pleadings, fuller disclosure, and oral evidence with cross-examination—used where disputes cannot fairly be resolved on affidavit.
Assignment/transfer of debt: when a loan is sold to another entity. Courts need reliable documents to prove the transfer includes the specific loan and gives the buyer the right to enforce it.
Redactions: blacking out parts of documents. Courts may allow limited redactions (e.g., third-party privacy), but not where they prevent the court from understanding the legal effect of the document.
“Own motion” obligation (Directive 93/13/EEC): in consumer contracts, courts may have to consider unfair terms issues even if a consumer does not raise them perfectly, to ensure effective consumer protection.

5) Conclusion

[2026] IEHC 16 establishes a concrete, practice-shaping proposition in Irish possession litigation involving debt sales: a plaintiff who sues as an assignee must put before the court assignment documentation in an intelligible, meaningful form; an extensively redacted global transfer deed, lacking recitals, definitions, and linked instruments, will be insufficient to prove debt ownership on an affidavit record.

By remitting the case to plenary hearing under the principles in Bank of Ireland Mortgage Bank v. Cody, the High Court emphasised procedural fairness where decisive issues cannot be resolved on incomplete affidavit evidence—while also signalling that sophisticated commercial transfers must be proved with clarity when relied upon to obtain possession of a home.