Woman's appeal aimed at overturning refusal to annul bankruptcy dismissed by court

Aodhan O'Faolain

Reporter:

Aodhan O'Faolain

Mayo Woman's appeal aimed at overturning refusal to annul bankruptcy dismissed by Court of Appeal

An Appeal Court has dismissed a woman's appeal against the High Court's refusal to annul the bankruptcy she claimed was she forced into due to being overcharged on her mortgage by Bank of Ireland (BOI).

Last year the High Court ruled that Deirdre Dennis' application to annul her bankruptcy was not a matter in which that court had the jurisdiction to rule in Ms Dennis' favour.

Ms Justice Teresa Pilkington, who expressed considerable sympathy for Ms Dennis, said the reasons for seeking to set aside the bankruptcy, including that the bank had wrongly overcharged her on her mortgage repayments, were matters outside of the bankruptcy process.

BOI, which was not a party to the proceedings, only admitted its error after Ms Dennis' discharge as a bankrupt. 

The court heard that in 2019 BOI, after carrying out a review of her account, unreservedly apologised to Ms Dennis for its failure to provide her with a tracker rate on her mortgage at a time she was entitled to one. 

BOI also withdrew its claim in her bankruptcy of amounts totalling €115,000.

Ms Dennis, who lives at Killala Road, Ballina County Mayo, said when she sought to be adjudicated a bankrupt in October 2017, she believed she owed BOI some €171,000 on foot of loans taken out with the bank. 

Her then home was valued as being worth €73,000. She also had additional debts of €66,000 owed to Revenue and another bank. 

She claims that had she all the relevant information in 2017 from BOI, she would not have sought to be adjudicated a bankrupt. She was discharged from bankruptcy in 2018.

Following its review, BOI accepted Ms Dennis was entitled to compensation, redress and a refund of interest charged.

It also acknowledged its error was a factor in her losing her family home at Seaview Terrace, Killala, Co Mayo.

Ms Dennis, represented by solicitor Evan O'Dwyer, applied to the court to have her bankruptcy annulled.

In what was an unopposed application, it was argued that the High Cout judgement was flawed and that the judge had erred in her approach to the application. 

In its decision, Ms Justice Caroline Costello, Mr Justice Brian Murray and Mr Justice Donald Binchy dismissed the appeal.

Given the court's decision ,Ms Justice Costello said that the court does have a discretion to annul a bankruptcy, but only for extremely compelling reasons.  

The fact that in 2017 Ms Dennis was misled by BOI to the extent of her indebtedness did not mean that she ought not to have been adjudicated a bankrupt, the judge said.

However, in this case even making allowances for BOI overstating Ms Dennis's liabilities, she was clearly insolvent in October 2017.

It could not be said that once the petition was validly presented that she ought not to have been adjudicated as a bankrupt, Ms Justice Costello said.

The judge added that the Court of Appeal did not accept Ms Dennis' argument that despite her insolvency she could have met her repayments due to BOI had they been correctly calculated.

"On the evidence in this case, she would not have been able to do so," Ms Justice Costello said. 

The judge added that the court must also take into account that insolvency proceedings are collective proceedings, and it must have regard for the implications for all creditors of the bankrupt.

The court said that on the facts of this case, it would not be just and equitable to annul the adjudication.

Previously the court heard Ms Dennis lost her family home and was left financially crippled and personally devastated after being charged over twice what was due on her monthly mortgage repayments between June 2012 and December 2017 to BOI.

In 2015, BOI sought an order from the Circuit Court seeking repossession of her home, after she went into arrears and was unable to make repayments sought by BOI, so it could sell the property.