“Co-Borrower Status ≠ Consent” – Everyday Finance Ltd v Marsh [2025] IEHC 326

Introduction

Everyday Finance Ltd v Marsh is a multi-faceted High Court appeal that touches nearly every fault line in contemporary Irish mortgage litigation: defective proof of title, aggressive redaction of transfer deeds, stamping and up-stamping of “all-sums-due” mortgages, statutory limitation periods, and the reach of the Family Home Protection Act 1976 (FHPA) when further advances are made after marriage.

The plaintiff (Everyday) sought summary possession of unregistered freehold property in Kilbane, Broadford, Co Clare (“the Property”), claiming it was entitled as successor to National Irish Bank under a 1999 “all sums due” mortgage. Three sets of loans were involved:

1. First Facility Letter – €63,500 (2003) to Mr Marsh alone;
2. Second Facility Letter – €64,000 (2005) to both spouses;
3. Third Facility Letter – €80,000 (2005) to both spouses, ostensibly secured on a different property (O’Brien’s Bridge).

Ms Justice Stack dismissed summary relief on multiple grounds, reserved one discrete issue for further affidavit exchange, and, crucially, ruled that a spouse’s status as co-borrower does not in itself constitute the “prior written consent” demanded by s 3 FHPA. The case therefore entrenches an important doctrinal point and raises the bar on documentary proof for loan-book purchasers.

Summary of the Judgment

• Family Home Protection Act (FHPA) finding: The Second and Third Facility Letters are not secured on the family home because Mrs Marsh never furnished written FHPA consent. Merely signing as co-borrower is insufficient.
• Proof of title: Everyday failed to produce an admissible, minimally-redacted chain of assignment from National Irish Bank → Danske Bank → Promontoria (Pluto) Ltd → Everyday. The redactions offended the principles laid down in Farrell v Everyday Finance DAC (CA, 2024).
• Stamp duty / “up-stamping”: The 1999 mortgage must be re-stamped to cover the 2003 advance before it can be relied on in any final order, per s 127 Stamp Duties Consolidation Act 1999.
• Statute of Limitations & particulars: Onus shifts to the defendant to prove the passage of 12-year limitation; but plaintiff still must supply adequate account details under Bank of Ireland v O’Malley.
• Disposition: Application for possession dismissed in so far as it is grounded on the Second and Third Facility Letters; further affidavit stage ordered on the First Facility Letter only. Directions listed for stamping, further proof of title, and any defence of limitation.

Analysis

1. Precedents Cited

• Bank of Ireland v Purcell [1989] IR 327 – additional advances are “conveyances” requiring FHPA consent.
• Nestor v Murphy [1979] IR 326 – purposive reading of FHPA; distinguished because there both spouses were joint owners.
• Farrell v Everyday Finance DAC [2024] IECA 16 – sets strict standard for justifying redactions in assignment deeds.
• Bank of Ireland v Cody [2021] 2 IR 381 – Supreme Court guidance on when to remit/adjourn summary possession under O 5B.
• Bank of Ireland v O’Malley [2019] IESC 84 – level of loan particulars needed for liquidated claims, applied by analogy.
• Start Mortgages DAC v Gawley [2020] IECA 335 – significance of particulars at execution stage (obiter).
• Flynn v NALM [2014] IEHC – validity of demand letters; distinguished.

2. Legal Reasoning

a) Family Home Protection Act 1976 – “Co-Borrower ≠ Consent”

The court begins from Purcell: each post-marriage advance secured on a pre-existing mortgage is itself a “conveyance” requiring prior written consent of the non-owning spouse. Everyday argued that because Mrs Marsh became a co-borrower in 2005 her participation amounted to consent, analogising Nestor v Murphy.

Stack J rejected this:

• Mrs Marsh owns no legal or beneficial interest in the Property, unlike the joint-tenants in Nestor.
• Accepting a loan is not the same as charging the family home; borrowers frequently take unsecured loans.
• FHPA’s policy is to require explicit spousal acknowledgement of the very fact that the family home is at risk; implied or buried “small-print” is insufficient.

Accordingly, the Second and Third Facility Letters cannot be enforced against the Property. This clarifies – arguably for the first time at High Court level – that spousal co-borrowing does not displace the statutory need for a separate written consent.

b) Proof of Title & Redaction

In line with Farrell, the judge scrutinised a heavily redacted 2016 Deed of Assignment and a 2022 Global Deed. Missing recitals, omitted schedules and blacked-out definitions meant the court could not verify whether Mr Marsh’s loan and mortgage were actually transferred. With commercial-sensitivity claims cursorily asserted, the redactions were inadmissible. Without an unbroken chain of title Everyday lacked standing to seek summary possession.

c) Stamping (“Up-Stamping”) of All-Sums-Due Mortgages

Because s 58 Stamp Duties Consolidation Act 1999 treats each further advance as a new instrument, the mortgage deed must be stamped for each new exposure. The 2003 advance was never up-stamped. Under s 127, an unstamped deed is inadmissible until duty is paid; Everyday, as “accountable person”, must now regularise the stamping before proceeding.

d) Limitation Periods & Particularisation

Everyday’s statements begin only in 2016. While Stack J accepts that burden tends to fall on defendants to prove limitation, she emphasises O’Malley values: defendants must have enough data “to pay or resist.” The gap in transactional history will be revisited at the next affidavit stage.

e) Exercise of Discretion under Order 5B

Borrowing heavily from Bank of Ireland v Cody, the judge uses her discretion to bifurcate: claims founded on the defective Second and Third Facility Letters are finally dismissed; the narrow First Facility Letter issue is adjourned for focused affidavit exchange because, if adequately proven and stamped, it could found a legitimate security.

3. Impact of the Judgment

• Family-Home Lending: Lenders will have to obtain and retain explicit FHPA consents whenever a further advance or refinancing occurs, even where the non-owning spouse signs as co-borrower. Expect new compliance checklists at draw-down.
• Loan-book Purchasers: The decision amplifies Farrell; purchasers must deliver near-full (“Peruvian Guano-compliant”) copies of assignment deeds or risk losing summary remedies.
• Stamp Duty Vigilance: Up-stamping lapses can now derail possession even for the original lender; assignees may find themselves liable for historical duty plus penalties.
• Procedural Road-Map: The judgment gives Circuit and High Court practitioners a granular template of “what proofs are needed” under Order 5B to survive summary scrutiny.
• Consumer-protection Lens: By refusing to treat co-borrowing as implied consent and by highlighting “small-print” dangers, the court re-invigorates the protective ethos of the FHPA.

Complex Concepts Simplified

All-Sums-Due Mortgage

A deed stating that any present or future debt owed by the borrower to the bank is automatically secured on the property.

Up-Stamping

Paying additional stamp duty when further advances are made under an existing mortgage, so that the deed remains admissible in court.

Redacted Deed

A document with certain passages blacked-out. Courts now insist that only genuinely confidential, irrelevant portions may be redacted, and reasons must be sworn on affidavit.

Family Home Protection Act Consent

Under s 3 FHPA, where one spouse alone owns the family home, any mortgage, charge or sale needs the prior written consent of the non-owning spouse; failure renders the transaction void.

Order 5B (Circuit Court Rules)

Fast-track procedure for possession of land, akin to summary judgment. The court may dismiss, grant, or adjourn to plenary hearing if proofs/defences warrant.

Peruvian Guano Test

Discovery rule requiring disclosure of any document that will “either advance one’s own case or damage the opponent’s case.” Applied here to redactions.

Conclusion

Everyday Finance Ltd v Marsh cements three distinct principles:

1. Spousal co-borrowing does not dispense with the statutory requirement for prior written FHPA consent;
2. Loan-book assignees must produce minimally-redacted, complete deeds showing an unbroken chain of title;
3. Historical stamping defects and up-stamping obligations can render a mortgage deed temporarily inadmissible, even decades later.

Beyond its immediate outcome, the judgment is a procedural road-sign: lenders seeking summary possession must approach the court with clean, complete paperwork and a meticulous respect for statutory consumer protections. Borrowers, meanwhile, are reminded that FHPA rights remain potent even when they sign as co-debtors. Practitioners can expect its reasoning to be cited frequently in future possession and enforcement litigation.