EBS Mortgage Finance & Anor v Bedford & Anor [No.3] (Approved)

Factual and Procedural Background

This summary application concerns an order for possession of a principal private residence ("the Property"). The Plaintiffs claim ownership of loans secured by registered charges on the Property, with the main Plaintiff having purchased these loans through a chain of title involving several entities. The Defendants, litigants in person, purchased the Property in 2004 and challenge the Plaintiffs' right to possession, particularly disputing the sufficiency of information regarding the transfer or sale of the loans. The Circuit Court made an order for possession on 7th May 2019, which the Defendants appeal. The appeal requires a full re-hearing but may proceed by summary summons procedure on affidavit.

The main Plaintiff, Company B, seeks possession, having acquired the loans from Company A entities through a series of assignments. The Defendants concede borrowing sums and defaulting but maintain they dealt only with the original lender, Company A, and not with the Plaintiffs or their successors. The Court obtained further evidence regarding the chain of title, including oral evidence, due to deficiencies in affidavits filed by the Plaintiffs.

Legal Issues Presented

1. Whether the main Plaintiff, Company B, has valid title to the loans secured on the Property, entitling it to possession.
2. Whether the affidavit evidence provided by the Plaintiffs, particularly regarding the chain of title and notification to the Defendants, is reliable and admissible.
3. Whether the Civil and Criminal Law (Miscellaneous Provisions) Act 2020 ("the 2020 Act") applies to the admissibility of business records evidence in this case.
4. Whether the Defendants have a bona fide defence sufficient to resist a summary order for possession.

Arguments of the Parties

Appellants' Arguments

• The Defendants challenge the Plaintiffs' right to possession on the basis that they did not have sufficient information about the transfer or sale of the loans to various entities.
• They assert they dealt only with the original lender, Company A (EBS Building Society), and not with the Plaintiffs or their successors.
• The Defendants contend they did not receive notification letters regarding the transfer of their loans to subsequent entities.
• They argue that the 2020 Act cannot apply retrospectively to affect their rights and that the Plaintiffs' evidence is inadmissible hearsay if the Act does not apply.

Respondents' Arguments

• The Plaintiffs assert ownership of the loans through a clear chain of title involving multiple transfers from Company A to Company B.
• The main Plaintiff filed affidavits, including from a senior manager, to clarify the chain of title and the transfer of loans and security.
• They rely on exhibited standard letters and annual statements to show that notification of loan transfers was sent to the Defendants.
• They argue that the 2020 Act applies as a procedural change and supports admissibility of business records, but even absent the Act, the evidence is admissible as prima facie proof.
• The Plaintiffs maintain the Defendants have no bona fide defence and that default events triggered the right to possession.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first established the factual chain of title from the original lender, Company A (EBS Building Society), through its successors, to the main Plaintiff, Company B (Mars Capital Finance DAC). It found that the Defendants had borrowed money secured on the Property and that default events occurred, triggering the right to possession.

The Court examined the affidavits filed by the Plaintiffs, noting a critical error in the affidavit sworn by the senior manager, Mr. Carter, who mistakenly referred to previous affidavits he had not sworn. This error raised concerns about the care taken in preparing evidence. Nonetheless, after cross-examination, the Court was satisfied that Mr. Carter had reviewed the relevant records and that his evidence was reliable.

Regarding the Defendants' assertion that they did not receive notification of loan transfers, the Court found it more probable that they did receive such letters, supported by exhibited standard letters and annual statements addressed to the Defendants. The Court noted no evidence of any payment attempts being frustrated by lack of knowledge of the loan holders.

On the admissibility of evidence under the 2020 Act, the Court treated the Act as procedural rather than substantive, allowing for the admission of business records if reliable. It relied on the precedent in Feniton Property Finance DAC v McCool to hold that the evidence was admissible as prima facie proof, even if hearsay, given the deponent's position and access to records.

The Defendants' argument that the 2020 Act could not apply retrospectively was addressed, with the Court confirming that even if the Act did not apply, the evidence would still be admissible under common law principles.

Ultimately, the Court concluded there was no reasonable probability of a bona fide defence by the Defendants. The Plaintiffs demonstrated entitlement to possession through evidence of loans, defaults, and the chain of title. The Defendants did not successfully contest these facts or undermine the Plaintiffs' evidence.

Holding and Implications

The Court's final decision is IN FAVOUR OF THE PLAINTIFFS, granting the order for possession of the Property to the main Plaintiff, Company B.

The direct effect is that the Plaintiffs are entitled to possession based on the valid chain of title, the occurrence of default events, and the reliability of their evidence. No new legal precedent was established; the decision applies existing principles regarding possession orders, affidavit evidence, and the admissibility of business records under the 2020 Act and common law.

The Court allowed the parties to make submissions on costs within 14 days, limited to 1,000 words.