(1) an affidavit sworn by a bank manager and stating that she is a bank manager in fact contains no evidence that she is a bank manager . This is to misconstrue the nature of affidavit evidence: the averment by the bank manager that she is a bank manager is the evidence that she is a bank manager, and that she is a bank manager is accepted by the court.
(2) the bank manager exhibits bank records but has no first-hand knowledge as to who prepared them, and must produce only original documents . The evidence supplied by the bank in this regard is precisely the type of evidence contemplated by Clarke J. in Moorview Developments Ltd v. First Active plc & ors [2010] IEHC 275, para. 4.8, as approved by the Supreme Court in Ulster Bank Ireland v. O'Brien & ors [2015] IESC 96.
(3) the bank manager is factually incorrect when she avers " that the entry of the said account details into the computer records was made in the ordinary and usual course of business of the Plaintiff " . There is no reason to believe that the bank manager is factually incorrect in this regard; the defendants merely assert that this is so.
(4) the bank has not produced perfected deeds of charge from the land registry as none, it is claimed, exist . This is an issue that goes to the enforcement of security; it is irrelevant to the issue of liability for debt, being the issue at hand.
(5) each of the defendants, it is claimed, is a consumer . The loans relate to the financing of multiple property investments and it is clear from the evidence that the defendants were engaged in the business of property investment in taking out the loans. Although the court accepts that not every acquisition of a property additional to one's family home would necessarily suffice to mean that one was engaged in the business of property investment, the defendants have clearly ‘crossed the Rubicon' from consumer to non-consumer in this regard.
(6) the sums sought are incorrectly stated in the pleadings . They are. However, the bank has sought to amend its claim to seek the amount actually owing and the court will acquiesce to that application
(7) the defendants " have not received letters of demand relating to the amounts claimed by the Plaintiff " . Before the hearing the plaintiff apparently understood the just-quoted text to mean that the amounts demanded were in error (and the quoted text falls naturally to be read that way). At hearing, it became clear that what was actually being alleged in this regard was that the letters of demand had never been received at all. The court accepts that it was not clear that this was the defence raised and will allow an affidavit to be filed by the bank as to the question of service, albeit that it would have expected proof of service to be included as standard in the material before it.
(8) the loan accounts are the subject of a tracker rate investigation by the bank . They were. However, that investigation has ended and no error has been found by the bank in this regard.
(9) there is confusion as to whether the plaintiff bank is the correct plaintiff . There is no such confusion. It is clear from the pleadings and the evidence that AIB Mortgage Bank is the correct plaintiff.
(10) AIB owed a duty of care to ensure that neither defendant signed up to the loans without taking legal advice . It is trite law that absent an express assumption of responsibility (and there is no evidence of any such assumption of responsibility here) a bank is not under a duty to advise, or to see to it that a customer is advised, as to the prudence or otherwise of a lending transaction (see e.g., Lloyds Bank plc v. Cobb [1991] 12 WLUK 199, Kennedy v. AIB [1998] 2 IR 48, and Frost v. James Finlay Bank Ltd [2002] EWCA Civ 667).
