A woman who alleges mortgage fraud against her husband and a bank has won her High Court appeal over a possession order for her family home in Co Wexford.
Bank of Ireland Mortgage Bank had failed to prove Heather Cody was indebted to it under two loan agreements and therefore was not entitled to a possession order for the home where she lives with her children in Gorey, Mr Justice Garrett Simons ruled on Friday.
He overturned the possession order granted by the Circuit Court in February 2019 with a stay of 15 months.
Ms Cody, representing herself, told him: “I’m very grateful.”
In his judgment, the judge noted Ms Cody had made "very serious" allegations against Peter Cody, her husband from whom she is separated, and the bank.
She alleged Mr Cody was in collusion with the bank during the years 1990 to 2010 to attain money by way of loans and mortgages in the joint names of Peter Cody and Heather Cody, and that the family home was being used as collateral, all without her knowledge and consent.
In seeking possession, the bank argued monies were due to it under two loan agreements said to have been entered into by the Codys in October 2005, with repayment secured against the family home by a deed of mortage and charge entered into by the Codys on January 12th, 2007.
The bank claimed the principal monies became due when, arising from alleged default on repayments, it demanded repayment in June 2016.
‘Curious features’
The judge said one of the “curious features” of the loan offer letters is they were addressed to “Mr Peter Cody and Mr Heather McMillan” [Ms Cody’s maiden name] at an address other than their family home and which appeared to be the business address of James Cody & Sons, the law firm in which Mr Cody was then a partner.
Ms Cody also complained documents, particularly subsequent bank statements, were not sent to her home address.
The judge said the loan agreement appears to bear a signature commencing with the name “Heather” but it was not possible to make out the surname.
In an affidavit, a bank official had said it had advanced a total €650,000 to the Codys but it was “not entirely clear” from the affidavit on what date those payments were said to have been made. It might be inferred the monies were advanced in January 2006.
The bank had chosen not to engage in detail with the allegations made by Ms Cody and argued she had not made out a defence to the possession order, he said.
Given the nature of her claims in her sworn affidavits, the bank cannot simply rely on it having exhibited copies of the disputed loan agreements as discharging the onus of proof which lies on it as plaintiff, he said.
While the bank denied her allegations, it had not applied to cross-examine Ms Cody in the Circuit Court on her affidavits.
That failure meant the High Court could not, in this appeal, make a definitive finding she is indebted to the bank under the two loan agreements.
The bank had “specifically failed” to prove she had executed the two loan agreements which it sought to rely upon and this omission was “fatal” to the claim for possession, he held.
Ms Cody, the judge noted, has instituted separate plenary proceedings against her husband, his former law firm, and the Bank.
Her allegations in those proceedings are very serious and that case, if it proceeds, may have implications for her remaining in the family home and should be heard at an early date, he said.
The matter was adjourned to February 21st to allow the sides consider the judgment.
