Ruling may affect hundreds of repo cases; Court to decide legal issues of ‘considerable public importance’

A High Court judge wants the Court of Appeal to decide significant legal issues “clearly of considerable public importance” and potentially affecting hundreds of repossession cases.

The issues, raised in an appeal by Tanager Designated Activity Company over being refused a repossession order for Rolf Kane’s family home in Clonsilla, Dublin, concern the potential consequences of Bank of Scotland’s transfer of a charge on the property to Tanager when Bank of Scotland had not registered itself as the owner of the charge.

The issues could directly affect hundreds of cases and he would like them to be determined by the Court of Appeal before he decides Tanager’s appeal, said Mr Justice Seamus Noonan.

The core point is whether Bank of Scotland, as unregistered owner of a charge registered by Bank of Scotland Ireland on Mr Kane’s home, was entitled to transfer that charge to Tanager without first itself becoming registered.

Other key issues are whether the Property Registration Authority was subsequently entitled to register the fund as registered owner of the charge, whether Mr Kane can challenge that registration, and the consequences of any successful challenge by him.

Noting the High Court cannot of itself refer legal issues for determination by the Court of Appeal unless asked to do so by a party to a case, Mr Justice Noonan invited Tanager or Mr Kane, of Elmwood, Clonsilla, Dublin, to apply to him for a referral.

He issued the invitation yesterday in an interim ruling on Tanager’s appeal and adjourned the matter to next month to allow the sides time to consider that.

The case arises from a March 2006 mortgage granted to Mr Kane by Bank of Scotland Ireland arising from which it became registered on March 21, 2006, as owner of the charge on the family home.

Bank of Scotland Ireland merged on December 31, 2010, into Bank of Scotland plc, which later sold a portfolio of securities to Tanager, including Mr Kane’s mortgage. Tanager became registered on April 25, 2014, as the owner of the charge previously registered in favour of Bank of Scotland Ireland.

The fund alleged Mr Kane had fallen into arrears on mortgage repayments and in early 2015 moved for repossession of his home.

Mr Kane argued that because Bank of Scotland never became registered as owner of the charge, it was not entitled to transfer the charge to the fund, the fund never acquired title to the charge, and was therefore not entitled to enforce it against him.

He also argued the registration of the fund as owner of the charge was a mistake on the part of the Property Registration Authority.

The fund argued the register of titles is “conclusive” evidence of its title and Mr Kane could not challenge its title.

After the Circuit Court refused a possession order, the fund appealed to the High Court.

In his interim ruling, Mr Justice Noonan said that following the Bank of Scotland Ireland/Bank of Scotland merger, Mr Kane’s charge transferred to Bank of Scotland by operation of law but Bank of Scotland Ireland was the registered owner of the charge on the folio.

When the merger took effect, Bank of Scotland was the legal owner of a registered charge on Mr Kane’s folio that was not registered in Bank of Scotland’s name.


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