High Court asked to remove mortgage charge on home of widow defrauded by daughter

The High Court has been asked to remove a mortgage charge in favour of a financial fund over the home of an elderly widow who was defrauded by one of her daughters.

The charge has been placed over the home of Marie Gibson, who has sued parties including her daughter Pauline Gibson, as well as a solicitor who allegedly advised the parties regarding a loan agreement relating to the plaintiff’s home.

She has also sued the holder of the mortgage charge, Promontoria Oyster DAC, and a receiver it appointed over Marie Gibson’s home at Castletymon Green, Coolock, Dublin 5.

In his judgment last year, Mr Justice Brian Cregan set aside a purported transfer of the property between Marie and her late husband John Gibson and Pauline, that occurred in 2003 but was not discovered until 2017, on the grounds that it was fraudulent.

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The court also found that the solicitor Kevin O’Gorman had been negligent in the performance of his duties towards Marie Gibson in 2003.

When the matter returned before the court Hugh O’Flaherty BL, instructed by Gaffney Halligan solicitors, asked the court for several orders including one removing a mortgage charge registered in the name of Promontoria over the property from the Property Registration Authority (PRA) and the removal of the receiver.

The court has also been asked to consider awarding damages against Pauline Gibson and Mr O’Gorman, but Mr O’Flaherty accepts that any such award could be nominal.

Promontoria, which claims it is owed some €350,000 on the mortgage, has opposed the application to remove the charge from the PRA.

Represented by Eoghan Casey BL, the fund accepts the court’s earlier findings that Mrs Gibson was the victim of wrongdoing.

It has made offers to Mrs Gibson, including that she may continue to reside in the property until she either redeems the mortgage or allows the fund to take possession until her voluntary departure from the house or her death.

The fund’s offers have all been rejected by Ms Gibson.

The fund’s lawyers also say that it would be willing to accept the assignment of any damages award, that would reflect the amount outstanding on the mortgage, made by the court against Pauline Gibson and Mr O’Gorman in favour of the plaintiff.

Eugene Gleeson SC, for Mr O’Gorman, said his client agrees the charge should be removed but argued this was not a case where damages should be awarded against his client.

Pauline Gleeson has not taken part in the proceedings.

Following the conclusion of submissions from the sides, Mr Justice Cregan, who noted that the issues raised in the case were complex, reserved his decision.

The judge said he hoped to give judgment on this aspect of the action in the coming weeks.