Pepper Finance Corporation (Ireland) LTD T/A Pepper Asset Servicing v Tighe & Anor (Approved)

Factual and Procedural Background

This judgment concerns an appeal by the defendants against an order of the Circuit Court made on 10th March 2020, granting the plaintiff an order for possession of a residential property owned by the first named defendant. The proceedings originated from a civil bill issued in November 2014, wherein the plaintiff sought possession based on a loan made to the defendants in May 2007, secured by a mortgage over the property. The defendants resisted, primarily contesting the plaintiff's locus standi and the jurisdiction of the Circuit Court, in light of a securitisation transaction involving the loan portfolio.

Legal Issues Presented

1. Whether the plaintiff had locus standi to bring possession proceedings following a securitisation transaction whereby legal title was held as bare trustee.
2. Whether the Circuit Court had jurisdiction to hear the possession proceedings given the monetary limits and statutory provisions applicable to mortgages created prior to 1st December 2009.
3. Whether the securitisation agreement required the beneficial owner of the loan portfolio to be joined as a party in possession proceedings.
4. Whether the procedural requirements, including proof of assignment or name change, were satisfied in the context of the possession proceedings.
5. Whether any ancillary submissions, including requests for legal aid or referral to the Court of Justice of the European Union, were appropriate in the context of the appeal.

Arguments of the Parties

Plaintiff's Arguments

• The plaintiff was originally GE Capital Woodchester Home Loans Limited, which changed its name and corporate form to Pepper Finance Corporation (Ireland) DAC, retaining all rights and liabilities.
• The loan facility was properly granted to the defendants, secured by a registered charge over the property.
• The plaintiff retained legal title to the loan and mortgage security as a bare trustee pursuant to a securitisation agreement with Windmill Funding Limited but remained entitled to enforce the loan and seek possession.
• Default by the defendants in repayment triggered the plaintiff’s right to demand repayment and possession, which was properly exercised through notices and letters compliant with the Code of Conduct on Mortgage Arrears (CCMA).
• The plaintiff complied with all procedural requirements, including proof of the change of name and retention of legal title, and was entitled to bring proceedings in its own name without joining the beneficial owner.

Defendants' Arguments

• The Circuit Court lacked jurisdiction because the monetary value of the property exceeded the court’s limit, and the defendants did not consent to the proceedings in that court.
• The plaintiff lacked locus standi as the mortgage and legal title had been transferred to Windmill Funding Limited, and thus the plaintiff held only a bare trust without independent enforcement rights.
• The securitisation agreement and mortgage sale deed demonstrated that the plaintiff was not the beneficial owner and could not enforce the mortgage without Windmill being a party to the proceedings.
• Practice direction CC17 required proof of assignment or transfer instruments, which the plaintiff allegedly failed to provide.
• The defendants requested a referral to the Court of Justice of the European Union on the issue of the plaintiff’s standing as bare trustee.
• Requests for legal aid were made but were not a defence to the possession proceedings and were outside the jurisdiction of the courts hearing the matter.
• The defendants contended the civil bill was flawed and that the matter should be remitted to plenary hearing.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by confirming the statutory framework governing possession proceedings under s.62(7) of the Registration of Title Act 1964, as saved by the Land and Conveyancing Law Reform Act 2013 for mortgages created before 1st December 2009. The plaintiff was required to prove ownership of the charge and that the right to possession had arisen due to default. The court accepted the plaintiff’s evidence, particularly the affidavits of the operations manager, establishing the loan agreement, mortgage charge, registration, default, and proper demands for repayment and possession.

The court rejected the defendants’ jurisdictional argument, holding that the 2013 Act extended the Circuit Court’s jurisdiction to such mortgages, and the proceedings commenced after the Act’s commencement.

Regarding locus standi and the impact of the securitisation transaction, the court relied heavily on established case law, especially the Jenkins decision, which held that a plaintiff holding legal title as bare trustee need not join the beneficial owner in possession proceedings. The court found that the securitisation agreement did not deprive the plaintiff of its right to bring the proceedings, nor require joinder of Windmill Funding Limited. The plaintiff’s retention of legal title and enforcement rights was sufficient.

The court distinguished the present case from Moloney, where the absence of exhibited securitisation documents invalidated the claim. Here, all relevant agreements had been properly exhibited.

The court also dismissed the defendants’ reliance on practice direction CC17, noting it did not apply to proceedings commenced before its effect date, and that the plaintiff had furnished adequate proof of name change and title retention.

Requests for legal aid and for a reference to the Court of Justice of the European Union were declined on jurisdictional and substantive grounds, as no European law issues arose.

The court further found that a document handed in by the defendants relating to a separate deed of charge had no bearing on the proceedings and did not raise a defence.

Holding and Implications

The court’s final decision was to DISMISS THE DEFENDANTS' APPEAL and to AFFIRM THE ORDER OF THE CIRCUIT COURT granting possession of the property to the plaintiff, without any stay on the order for possession.

The direct consequence is that the plaintiff may take possession of the property. The judgment clarifies that in possession proceedings following securitisation, the party holding legal title as bare trustee may proceed without joining the beneficial owner, provided relevant documents are exhibited. No new legal precedent was established beyond reaffirming existing principles.