Pepper Finance Corporation (Ireland) DAC v Matthews & Anor (Approved)

Factual and Procedural Background

The Plaintiff commenced possession proceedings by Civil Bill on 26 July 2019 under section 62(7) of the Registration of Title Act 1964. A summary order for possession was granted by the Circuit Court on 23 July 2025. The first named defendant filed a notice of appeal on 29 July 2025. The appeal was heard de novo before Judge O'Donnell on 4 June 2026. The underlying loan transaction was a €322,000 mortgage drawn down in July 2007, secured by a deed of charge registered on the folio. The defendants defaulted from about October 2013, and by 9 June 2025 arrears were €244,818.63 with a total debt of €476,726.27. The appeal was limited by the defendant (with later legal representation) to a single point concerning the application of the Central Bank Code of Conduct on Mortgage Arrears 2013 ("the Code") and correspondence during the currency of proceedings; in all other respects the defendant accepted the plaintiff's proofs.

Legal Issues Presented

1. Whether, in a de novo appeal from a Circuit Court possession order, a defendant may raise a new legal issue concerning the adequacy of the plaintiff's proofs (specifically, compliance with the Code).
2. Whether the plaintiff's conduct and correspondence during the currency of proceedings (including a letter stating the borrower's situation was being treated under the Mortgage Arrears Resolution Process (MARP)) required the court to adjourn to plenary hearing or to refuse possession, by reason of non‑compliance with the Code (including Provision 59 and the moratorium provisions of the Code).

Arguments of the Parties

Defendant's Arguments

• The defendant contended that the plaintiff's correspondence during the proceedings (notably a July 2023 letter stating the defendant was being treated under MARP) raised a real issue of Code compliance such that the matter should be adjourned to a plenary hearing with oral evidence and discovery.
• The defendant relied on the contention that continued engagement or representations by the lender during proceedings could, in substance, engage the protections of the Code (including the moratorium/Provision 59) and thereby defeat a summary possession application.

Plaintiff's Arguments

• The plaintiff maintained it had complied with the Code's pre‑commencement requirements and, in any event, there was no agreed alternative repayment arrangement (ARA) after commencement that would have triggered the Provision 59 mandatory pause.
• The plaintiff relied on the documentary evidence already before the Circuit Court (including pre‑commencement correspondence and later letters) to demonstrate compliance and entitlement to possession under section 62(7).

Table of Precedents Cited

Court's Reasoning and Analysis

The appeal was treated de novo but confined to the evidence before the Circuit Court. Applying Case A (Cody), the court required proof of (a) registered ownership of the charge and (b) that the right to possession had arisen. On (a) the court accepted the Register and evidence that the registered name change did not constitute an assignment, citing Case B and Case C. On (b) the court found the loan documentation, deed of charge, defaults from October 2013, and the quantified arrears satisfied the right to seek possession.

The court allowed the defendant to raise the new Code issue on appeal pursuant to Case D. It examined the documentary evidence relied on by the defendant: plaintiff affidavits and three key letters (including a 20 July 2023 letter stating the defendant was being treated under MARP and a 26 July 2023 letter invoking Provision 59 and stating proceedings had commenced). The court analysed the 2013 Code provisions (including the definitions of "non‑cooperating borrower", Provision 45 on MARP appeals, Provisions 56–58 on pre‑commencement conditions, and Provision 59 on conduct after commencement).

The court concluded the plaintiff had complied with pre‑commencement Code obligations and that no agreed alternative repayment arrangement arose after commencement that would have triggered the mandatory hold under Provision 59. The court distinguished Stepstone (Case E) and applied the Supreme Court's reasoning in Dunne (Case F) to hold that the court's supervisory role is confined principally to ensuring no moratorium breach pre‑commencement and to enforcing Provision 59 where an ARA after commencement requires a stay. The court reasoned that a lender's unilateral or voluntary communication during proceedings describing the borrower as being in MARP, where not mandated by the Code and not giving rise to an ARA or a Provision 59 pause, should not defeat a properly supported possession application; requiring otherwise would deter engagement and exceed the Code's mandated protections.

Holding and Implications

APPEAL REFUSED; POSSESSION ORDER GRANTED

Direct effect: The court refused the defendant's appeal and upheld the Circuit Court's summary possession order. The court indicated a provisional view that the plaintiff should obtain costs against the defendant and listed the matter for final argument (including any application for a stay of execution) at 10:30am on 7 July 2026.

No broader extension of precedent was declared; the decision applies the existing authorities (notably Dunne and Stepstone) to the facts and emphasizes that absent an agreed alternative repayment arrangement after commencement (engaging Provision 59) or a pre‑commencement moratorium breach, correspondence during proceedings stating a borrower is being treated under MARP does not, by itself, require refusal of a possession order.