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Lender restrained from selling family home

By: James Cross BL

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High Court grants an interlocutory injunction restraining a lender from selling or interfering with a property which was the family home of the borrower, on the grounds that an arguable issue arose as to whether, at the date of the registration of the mortgage there was a registrable interest within that mortgage.

Injunctions – application for an interlocutory injunction – restraining the defendants from selling the property – directing the defendants to vacate the property and not to trespass into the property – carpenter sought an overdraft facility of €95,000 - Bank wrote seeking execution and registration of a mortgage in favour of the bank in respect to the borrowings - bank did not issue any proceedings on foot of the €95,000 - no suggestion that the monies were not discharged in full – bank offered a loan of €2,000,000 – terms of the agreement – carpenter executed a personal guarantee in respect of the company for a sum not exceeding €2,000,000 – sought repayment of sum €1,760,000 pursuant to the guarantee – letter of demand – no default - queried the linkage of a personal mortgage from 2003 to a 2005 personal guarantee - criteria for the grant of interlocutory relief - defendants assert that the registration of the legal charge is conclusive evidence of its title - validity of the appointment of a receiver - enforceability of the registered interest - an arguable issue arises as to whether, at the date of the registration of the 2003 mortgage in 2005 there was at that point a registrable interest within that mortgage – no lodgement of any mortgage with the mortgagee prior to 2009 - very difficult to see how any security was in place before the draw down of these facilities - adequacy of damages - balance of convenience also favours the maintenance of the status quo -injunction granted

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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