A financial fund has obtained a court order clearing the way for intended proceedings against the estate of a deceased man to recover alleged debt secured on three properties.
Pepper Finance Corporation (Ireland) DAC sought the High Court order concerning the estate of Joseph Kelly, late of The Avenue, Mulhuddart, Dublin 15, who died six years ago.
The order permits a nominated solicitor to extract letters of administration in the estate limited to the purposes of receiving letters of demand from Pepper and notices of appointment of receivers, and, if necessary, being served with proceedings.
the application, arising from three loans made in 2007 to the deceased and another man, may lead to proceedings to recover possession of the properties on which those loans were secured.
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In her judgment on the application, Ms Justice Siobhán Stack noted Kelly died in August 2016 but no representation to his estate has been extracted in the years since.
It is a fundamental aspect of any fair hearing that anyone who might be disadvantaged by the making of the order sought would have notice of the application, she said. However, institutional lenders such as Pepper may have difficulties in identifying when a borrower has died, whether they died testate or intestate, and who might be entitled to extract representation in their estate.
While this can make it difficult to notify relevant family members, she did not think it would be appropriate to make such an order without requiring a lender to take some reasonable steps to identify family members entitled to take out a grant.
Because she had not been satisfied with steps taken by Pepper in that regard, she had made directions for the purposes of notifying the family of the intended application. That led to a daughter of the deceased appearing in person on one occasion but not taking any further part in the application. There was also some apparent contact from his brother.
However, there has been no indication an application for representation will be made, the judge said.
The situation, she was satisfied, amounted to the “special circumstances” which seemed to warrant making the order sought by Pepper. She then addressed whether the order should be made where the intended proceedings by Pepper may be statute barred, brought outside applicable time limits.
For reasons including it appeared the repayment date for the loans was in September and October 2017, after Kelly’s death, that was sufficient, for the purposes of this application, to find it could not be said the intended proceedings are hopelessly statute-barred, she ruled.
There are “special circumstances” making it either necessary or expedient to allow Pepper to extract a grant in the estate of the deceased, she concluded.
In coming to that view, she stressed she was not making any final determination on issues considered by her, including whether the intended proceedings were statute-barred. If the estate thinks it appropriate to raise those issues, then they should be determined in the intended proceedings to recover monies due and owing on foot of the loan agreements, and any proceedings to recover possession of the three properties involved, she said.
Pepper’s nominated solicitor is not obliged to raise those issues but it will be open to a relevant family member to extract a grant of administration so as to allow them raise those issues if they wished, she said.
The order is subject to the usual condition that Pepper would not take any steps in the proceedings for a six month period after they had issued.
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