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Elstree Mortgages Limited (Ireland)


Country Ireland
City Dublin
Address Equity House, Fourth Floor, Upper Ormond Quay, Dublin 7
Website viviermortgages.com

Elstree Mortgages Limited (Ireland) Reviews

Most Useful Comment
  • Feb 12, 2020

HFC to Vivier to Elstree Mortgages Ltd

This article is taken from THE PHOENIX MAGAZINE, IRELAND - OCTOBER 9, 2015

In courts across the country, a lender called Vivier Mortgages Ltd (VML) has been keeping plenty of lawyers busy, as it steps up repossession cases against punters who took out loans years ago and who have been whacked with exorbitant interest rates. VML is the new name for lender, Home Funding Corporation Ltd (HFC), where the principal was convicted British fraudster, Ian Leaf. The VML boss is Italian-born South African, Luigi Wewege (30), who spent some time in New Zealand, where he made an impact through a racy political scandal in 2013.

VML says that the new directors and owner of the company are "entirely distinct" from its previous owner. How did an urbane South African end up as the managing director of a subprime lender in Ireland? The story of HFC involves a web of characters and companies in the UK, New Zealand and elsewhere, but it begins in Ireland in 1997 when HFC was set up.

Most of its clients were cash-strapped farmers with poor credit ratings. As an unregulated entity, not subject to the Central Bank's code of conduct, HFC could impose penal interest rates on borrowers if they had missed a payment. In a repossession case heard in Clare earlier this year, the County Registrar described as "immoral" the interest rates imposed on a farmer, whose 26-acre farm the company was seeking to repossess. Since 2013, the company has issued around a dozen High Court actions against borrowers, in addition to various taking various Circuit Court cases.

Ian Leaf was the initial owner of HFC. He lived in Switzerland but was convicted in the UK in 2005 of defrauding the Taxman out of £54m, for which he was sent to prison. He was released in 2008 (and later changed his name to Ian Andrews) and his assets, including HFC, were subject to a UK confiscation order to be implemented by a UK receiver. In 2011, the company was sold by the receiver to another entity, City Corporation Ltd. One of the principals in City Corporation was Laurence Hamilton, a business associate of Leaf's, while the other was UK businessman Richard Ashken, also a Leaf associate.

Wewege entered the picture in March 2014, when he joined the HFC board. Two Irish directors — Thomas Daly and Joan Donnelly, both from Dublin — joined the VHF board later that year. The Dublin law firm, Crowley Millar, had been on record for VML in the various repossession cases. (The firm's partner, John Carroll, told Goldhawk it ceased to act for the company after a programme from RTE's Investigations Unit was broadcast in February.) At some stage after September 2013, shares in HFC were transferred from City Corporation into Wewege's name and in August 2014, HFC changed its name to VML. Leafs involvement in HFC was the subject of the RTE programme.

Shortly after the programme was broadcast, Wewege and VML lodged proceedings in the High Court against RTE. The company says that the "proceedings are for defamation, procuring a breach of confidence, malicious falsehood and other wrongs. VML says "the true position... ignored by RTE" was that in 2004, the company effectively came "under the control of the British government." It said that in 2011, the British government (ie. the UK receiver) then sold the company to an "English private company." (This is a reference to City Corporation.) It also stated that in 2014, that English entity sold the company "to its present owner" which is "entirely distinct from the previous owners and directors."

Wewege told RTE. that Leaf acted as a "consultant" for City Corporation after it took over HFC in 2011. But court documents obtained by Goldhawk, as part of a case in 2013 in which HFC was suing its former solicitors, Lyons Kenny, suggest Leaf had a much more active role in the company. (The case against Lyons Kenny concerned a dispute over fees and was later struck out.) In an affidavit, solicitor Barry Lyons of Lyons Kenny referred to Ian Andrews (Leaf s new name) as "the principal behind" HFC. Lyons also exhibited emails sent around September/October 2012 showing that at that stage, Leaf/Andrews was involved in the management of the company, through discussions with solicitors at Lyons Kenny concerning legal fees, invoices, etc.

One of the unsatisfied charges against the company's assets (registered in May 2012) is in favour of Swiss resident Caroline Naylor, Leaf's second wife. (He has since remarried.) Another unsatisfied charge registered at the time is in favour of a UK company, Sons of Cursitor Ltd, which is owned by Laurence Hamilton, who also served on the HFC board from 2013 until last January. Wewege declined to tell Goldhawk how he first came into contact with City Corporation. However, Richard Ashken and Leaf/Andrews were active in Auckland, New Zealand, for a spell around 2011, the same year Wewege arrived in that city. Records with the New Zealand Companies Office show that in that year, Ashken set up a company called City Savings Institution Ltd in Auckland. (City Corporation owns this company's shares). The presenter of a company document to the Companies Office that year is listed as "Ian Andrews."

While Ashken and Leaf/Andrews were setting up shop in Auckland, Wewege was making a name for himself in political scenes as a mover and a shaker. The smooth talking South African was quite a networker and became campaign organiser for a politician named John Palino, of the right-leaning National Party, who was seeking election as Mayor of Auckland in 2013. In the course of the campaign, a story emerged about Palino's rival, incumbent Mayor Len Brown of Labour, having a two-year affair with a much younger woman, Bevan Chuang, an associate of Wewege's. Chuang claimed that Wewege had pressurised her into going public with the Brown affair, a claim he denies. Wewege left New Zealand after the Len Brown scandal in October 2013 and spent some time in the US, but re-emerged in New Zealand last year when he joined the board of a New Zealand company, Vivier & Co, which is related to VML. A New Zealand businessman, Michael Hart (72) —who worked with Wewege on John Palino's failed mayoral election bid — holds all the shares in Vivier & Co.

Wewege didn't respond to a query from Goldhawk about how he funded his purchase of HFC in 2014. ("The insinuations behind your questions are defamatory," he said. "If you repeat any of them, my company and I will not hesitate to sue.") Perhaps a fuller explanation might become apparent in the course of his defamation action against RTE?

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Most Useful Comment
  • Jan 30, 2020

This company was first set up as "home funding corporation" by a very popular british tax thief "ian andrew leaf" who is now known as "ian andrews". Later the name was changed to "vivier mortgages limited" and subsequently to "elstree mortgages limited". The central bank of ireland has still not allowed the registration of this company as a mortgage provider.

Watch the documentary by rte here - https://www.Rte.Ie/news/player/2015/0205/20723428-rte-investigations-unit-the-loot-the-loans/

This is what the irish journalist "conor ryan" wrote about ian leaf in 2015, when it cam to light that ian leaf was still controlling the company. In 2019 it was again exposed that ian leaf Now ian andrews) was managing elstree mortgages along with kevin macleod who was also a famous fraudster and changed his name from kevin james steele to kevin macleod.

Ian leaf has a new name and is out of prison, but a convicted fraudster who cheated british taxpayers out of £76m is back and doing business in ireland, says investigative correspondent conor ryan

Out of jail and with a new name, a playboy tax cheat, ian leaf, is back working with the subprime lender he established here at the height of his international fraud business.

Fifteen years ago, from a mansion in the swiss alps, leaf Pictured left) ran a sophisticated scam, juggling money across the world and using it to cheat british taxpayers out of stg£76m.

His funding involved fraudulent documents drawn from a bank he set up on a pacific island that is smaller than killarney’s lough leane and where less than 10,000 people live.

During the 1990s, leaf, 59, lived an extraordinarily lavish lifestyle. His complex business model took years for the tax authorities to unravel.

They delved into dozens of companies: he used 13 firms to falsely declare losses and reclaim corporation tax he was not due.

When he was convicted, in 2005, the cost of his crimes was stg£76m; £55m in lost taxes and £22m in reclaimed taxes.

Leaf has since served his time and changed his name to ian andrews.

Leaf/andrews’ empire began to dissolve five years before his conviction, when his private jet stopped for a shopping trip in rome and he was arrested on an international warrant.

This was not before he had spread his tentacles across the world. His enterprise involved setting up an irish company with an eye on the unlicensed, subprime lending market.

Home funding corporation was established in 1997 by leaf/andrews. It was funded through an investment vehicle based in the bahamas. The firm had different directors, but the company accounts noted that these people did not know the controlling party.

Home funding corporation has changed hands, but is still in operation. It has acquired high-interest, subprime loans, mostly linked to farm land, from other unlicensed lenders in ireland.

When it last filed accounts, the company had €17.7m worth of loans on its books, including the outstanding interest due. The value of the loans had grown from €14.4m in 2010.

But the firm has made provisions for €12m worth of possible bad debts within its loan book. It did €3.3m worth of business in ireland in 2011.

The company is involved in a number of cases in the irish courts, where it is seeking to take ownership of farms that were offered as security for the subprime loans.

But home funding corporation is also defending actions in which borrowers are disputing the claims the company has made to the title. Home funding corporation, which is under a new owner, said it has numerous clients and is not at liberty to discuss their accounts.

The irish examiner has spoken to a number of the borrowers involved.

At the start of last year, home funding corporation had two directors, who were paid €60,000.

Neither of these were leaf/andrews.

According to the accounts, the controlling party for home funding corporation was london-based accountant and director, richard ashken, 60. According to company records, he joined the board in 2011.

Mr ashken is also the chairman of home funding corporation’s parent group, city corporation. It runs financial institutions in britain, ireland, and new zealand.

The fact that leaf/andrews is back working with home funding corporation has not been known. When he was contacted this week, he said the person named ian leaf did not exist.

Leaf/andrews’ low-key presence is a marked difference from the lifestyle he enjoyed before his arrest.

Playboy fraudster

Leaf/andrews developed an outwardly successful business as a specialist car salesman, after he qualified as a chartered accountant. He sold his dealership in the early 1980s and used the profits to move to other ventures.

With his first wife, he had a son and a daughter.

In 1987, he and his second wife relocated to a mansion in geneva. From there, he built up an empire crowned with two private jets and a garage of luxury cars.

After one of his court appearances, the daily mirror newspaper reported that his jets were used to keep hair appointments in britain.

Another article noted that he secured a phone number beginning with james bond’s signature code, 007.

Leaf/andrews was first arrested on an interpol warrant, in 2000, when he landed his private jet in rome and produced an out-of-date passport. The warrant was triggered and he spent the next nine months in jail, awaiting a ruling. Before this was delivered, he was allowed a temporary release.

He took a train to northern italy, hired a guide, hiked across the alps, and returned to switzerland, where he moved to a secluded mansion at verbier, in the alps.

From the alpine tax-haven, he fought extradition back to britain. The authorities succeeded in repatriating him when fraud charges were also tabled. While a warrant was out for his arrest, leaf/andrews was living in his lavish mansion and was married to his third wife, dominique forsberg.

Ms forsberg was sweden’s miss universe entrant in 1994.

Leaf/andrews eventually returned to britain, in 2004, and was convicted the following year.

He was sentenced to 12.5 years in jail, but this was reduced to 10 years on appeal. He had served time awaiting his trial and he was also entitled to early release, under licence.

The crimes he was charged with covered a date range in the early 1990s. This was before the home funding corporation was set up in ireland.

The crimes involved the purchase of loss-making companies and the transference of their tax liabilities from other firms that he owned. Corporation tax could be claimed back from the then inland revenue.

The scam was facilitated through fictitious documents generated from a bank registered in the pacific island of nauru. The bank was controlled by leaf/andrews and it loaned huge sums of money to his other companies.

In 2005, the revenue compliance director, dave hartnett, said it was a very complex scheme that leaf/andrews hoped to operate, without detection, from switzerland.

“leaf Andrews) believed that by leaving the uk he could escape justice, but he was wrong. We will seek to bring to justice anyone who sets out to line their own pockets at the expense of honest taxpayers.

“this was a multimillion-pound crime and the sentence reflects the seriousness of his offences,” he said.

Setting up in ireland

The home funding corporation was established in ireland in 1997, when leaf/andrews secured the assistance of another subprime lender, ronald weisz.

Mr weisz was living between britain and ireland, at the time.

However, two years earlier he had pleaded guilty to a fraud charge in new york, for which he was fined and placed on probation. Mr weisz said he was never a shareholder or investor in the home funding corporation.

Mr weisz said when the englishman wanted to set up in ireland he helped him, and his son jarrod, to get established.

Mr weisz said he also sold mortgages, which had been taken out with his own wise mortgage company ltd, to home funding corporation.

Mr weisz said this practice, securitisation, was routine among financial institutions. He also sold loans to other companies.

Mr weisz’s fraud conviction was on a smaller scale.

An arrest warrant had existed for a long time and, in 1995, he struck a deal with the fbi to return to america, where he could be arrested at jfk airport.

He pleaded guilty to one of five charges that had been brought against him.

These related to the supply of fraudulent information to secure a loan from a bank in the late 1970s. A statement from the home funding corporation said that it was no longer connected to the wise group of companies.

“mr weisz acted for the company when it was established in the 1990s, but his involvement with it ceased well over a decade ago,” it said.

Mr weisz said he has had not dealings with the home funding corporation for a number of years and had only worked with leaf/andrews.

Mr weisz said he did not know any of its current directors or owners.

The irish business

At the end of 2011, there were more than €17m worth of loans booked with the home funding corporation. It has been established, through the customers themselves or from court filings, that a number of these were acquired from mr weisz.

Documents filed with the companies registration office list more than 40 individual mortgages held by home funding corporation. Most of these were taken out between 1997 and 2000.

These were all the subject of charges held by a swiss-based private lender and another private financier in britain.

The charges covered all the loans and all the interest due on the loans.

One of the loans involves a tipperary farmer who borrowed €80,000 from wise finance company in 1997; security was given on three associated properties. One of these properties was seized four years later; another loan was given to clear the balance. This loan was then sold to home finance corporation.

Before that, an agreement was struck for the borrower to sell his land to cancel out the debt, which by then had risen to €165,000.

However, the borrower subsequently took separate proceedings and claimed that the 2001 agreement was struck under duress and undue influence.

This case is still before the courts. The wise finance company and the home funding corporation are co-defendants.

Documents from another borrower, which are tied to land in north cork, were also seen by the irish examiner.

These show that a disputed loan, with a principal of less than ir£40,000, now stands at more than €500,000.

Interest statements show that the balance has grown by more than €100,000 in the last year.

Home funding corporation used to share the same solicitor as mr weisz, but this is no longer the case.

Home funding corporation is currently represented by lyons kenny solicitors in dublin. Its office, at no 57, fitzwilliam square, is also the registered address and contact point for debtors of home funding corporation.

A statement from lyons kenny partner barry lyons said it could not comment on leaf/andrews’ past. “as you are aware, we are a firm of solicitors. We provide commercial legal services for home funding corporation limited, and over 3,000 other clients. You will appreciate we are not at liberty to discuss the business of individual clients. Any queries in relation to the trade of home funding corporation should be addressed to the company directly,” it said.

Reacquainted with the company

On dec 16, 2008, leaf changed his name by deed poll. A acknowledgement of this appears in the london gazette.

It said ian andrew leaf, of no 6, allerton court, turnberry close, london, abandoned his old name and assumed the name of ian andrews. Leaf/andrews’ return to normal life was not easy. After his release from prison, he was subjected to a travel ban, although he appealed this through the courts.

He told the court he had been a model convict, who used his expertise to help the authorities improve their systems.

Leaf/andrews described his time in brixton as akin to the experience of the main character in the shawshank redemption, where the inmate worked as a private accountant for his jailers.

In recent years, leaf/andrews fought attempts by the revenue to have him repay up to stg£100m in taxes it believed he owed.

A hearing took place in 2007 and the court was told leaf/andrews had no money left from his fraudulent activities, that his family trust was in debt, and his investments had lost money.

At some point in the recent past, leaf/andrews also returned to work at the home funding corporation, but he is not a shareholder or director.

Mr ashken, the new owner of the company, said andrews is a consultant for home funding corporation, but he has no other connection to it. Mr ashken’s co-director at the company, sophie leighton, has other business links to the convicted fraudster.

Ms leighton, 23, is a director of good morning hotels ltd and eunoia ltd. Both of these are owned by leaf/andrews. He was a director of them. Company records show that eunoia is a consultancy company owned by leaf/andrews, but he joined it under the name ian leaf.

Ms leighton became a director of eunoia in november 2009.

She did not become a director of the home funding corporation until may last year.

Separately, eunoia had its address at the same office suite, on waterloo road, london, as home funding corporation’s uk parent company, city corporation. It relocated last month.

Earlier this week, the irish examiner contacted leaf/andrews through the phone number provided to customers of the home funding corporation.

Although it was a dublin number, it was automatically redirected to an office in england.

Leaf/andrews was also contactable through the phone number for the firm’s parent company, city corporation ltd.

Leaf/andrews did not make a statement. He said a person called ian leaf “did not exist” and all questions related to the company should be sent to its director, mr ashken.

Mr ashken said he and ms leighton are the only directors of the company and leaf/andrews was only hired as a consultant.

He said, as directors, they operate without any external interference.

“hfc is properly established and operates entirely within the law,” he said.

Mr ashken said it takes its reputation seriously and would vigorously prosecute anybody who sought to undermine that with “inaccurate, incomplete or otherwise defamatory details”.

The subprime sector

Home funding corporation, and a company it bought loans from, wise finance, operate in a legal, but unregulated, space in the irish financial sector.

Because they are not licensed, their conduct is not subject to policing by the central bank.

Subprime customers who have complained about their plight to the central bank have been told there is nothing that can be done, because if a company is not licensed it is not bound by the industry rules.

In one letter from the office of the financial regulator, a customer was told there was little that could be done.

“firms that hold no authorisation or licence from the central bank are not subject to the provisions contained in the consumer protection code, which the majority of entities/firms that are authorised/licenced by the central bank adhere to,” it said.

The lack of regulation in the subprime sector has been raised in the dáil on a number of occasions by sinn féin td martin ferris.

He has pointed to the high interest rates being charged of customers of wise mortgages and the wise finance company, as well as other, similar businesses.

And he said the government needed to act to close the loophole in which subprime lenders operate.

“some of the borrowers who have contacted me are under extreme stress and, indeed, duress. In some cases, the lender’s immediate family do not even know of the difficulties involved, and that isolation, along with the burden of often huge repayments, along with the threat of losing their home, can place an intolerable pressure on some people,” he said.

Mr ashken, the director of the home funding corporation, said it operates within the law and although it has opted not to be licensed, it sticks to the rules.

“although unobliged to do so because it is not a regulated entity, the company adheres fully to the marp,” he said.

Https://www.Irishexaminer.com/lifestyle/features/humaninterest/return-of-the-playboy-fraudster-222847.Html

Https://www.Mirror.Co.Uk/news/uk-news/fraudster-back-business-after-stealing-18999815

Mark as Useful [2 votes]
  • Mar 19, 2020

Lender set up to launder cash By John McCarthy

Friday, February 06, 2015--- https://www.irishexaminer.com/ireland/lender-set-up-to-launder-cash-311018.html

At least 30 homeowners are facing repossession despite learning their mortgages were funded through the proceeds of crime.

It has emerged a subprime lender that was set up here in 1997 was part of a complex international structure that was used to launder the proceeds of a £55m tax fraud.

Home Funding Corporation Ltd, which changed its name to Vivier Mortgages Ltd, was set up and funded by English accountant Ian Leaf to invest money he stole from the UK Inland Revenue.

Records from the Crown Court and High Court in England said Mr Leaf used 165 entities around the world, including the Home Funding Corporation, to hide his money and his criminality. Since 2013, 19 fresh repossession actions have been initiated against borrowers whose mortgages were funded by Mr Leaf.

High interest rates have seen borrowers who drew down less than €100,000 confronted with demands in excess of €1m.

The Home Funding Corporation was confiscated from Mr Leaf by the Crown Court in 2007. And, according to company records, it is now owned by a New Zealand businessman.

Under its new name it has been lobbying the Department of Finance not to extend regulation to previously unregulated entities. This was ahead of a draft bill Michael Noonan introduced to the Dáil on Wednesday.

Prior to the confiscation of Mr Leaf’s assets in 2007 more than €7m of his profits were used to fund approximately 150 mortgages in Ireland.

In 2007 the company was part of a list of assets taken over by a court appointed receiver. However, in 2011 the receiver sold the Irish firm to an English buyer who got control of the Irish loanbook.

In 2013 it was first revealed in the Irish Examiner that Mr Leaf, who had changed his name to Ian Andrews, was back working at that English company. In 2014 shares were transferred to a New Zealand businessman.

In correspondence to RTÉ Mr Leaf accepted he established the Home Funding Corporation but denied that it was funded through the proceeds of crime.

© Irish Examiner Ltd. All rights reserved

Mark as Useful [1 vote]
  • Apr 2, 2020

List of scammers

People involve in this scam

1. Luigi Wewege. Luigi left Elstree Mortgages in 2016 when it was called Vivier Mortgages. Luigi Wewege now works with Caye International Bank - Belize.

2. Ian Leaf. Now know as Ian Andrews. He is the one who invested his ill-gotten money in Elstree Mortgages. He is the one who is now the owner of Elstree Mortgages.

3. Richard Andrews. Richard works with Ian Leaf and uses his name as the director and shareholder to conceal the identity of Ian Leaf / Ian Andrews.

4. Richard Laurence Ashken. He was the one performing the role of Richard Andrews before he was exposed by RTE Ireland.

5. Laurence Russel Hamilton. Laurence was exposed by Phoenix magazine Ireland and he left after that. He is a good friend of Ian Leaf and Richard Andrews.

6. Kevin Steele. Kevin is now know as Kevin Macleod and many other names. He is an ex-solicitor caught for a bank fraud in the UK. He is the one who helps Ian Andrews in his legal matters.

7. Thomas Daly. Tom was a previous proxy shareholder and director

8. Joan Donnelly. She was also a proxy shareholder and director

List of Solicitors involved in this scam

1. Hanlon and Company, Dublin, Ireland (http://www.hanlonandco.com/)

2. Crowley Miller Solicitors, Dublin, Ireland (https://www.crowleymillar.com/

3. Dockery Solicitors, Dublin, Ireland (http://dockerysolicitors.ie/index.htm)

4. O'Malley, Cunneen & McCarthy Solicitors, Dublin, Ireland (https://cmlaw.ie)

  • Apr 2, 2020

Ian F****** Andrews

What this bastard Ian F****** Andrews currently lives? He will continue robbing people if he is not stopped.

  • Apr 1, 2020

Fraudster back in business after stealing £54m and not paying back a penny

Ian Andrews (aka Ian Leaf) and Kevin Macleod (aka Kevin James Steele) are in news again

https://www.mirror.co.uk/news/uk-news/fraudster-back-business-after-stealing-18999815

Fraudster back in business after stealing £54m and not paying back a penny

One of Britain’s biggest fraudsters is back in business – even though he stole £54million from the taxman and never paid back a penny.

Conman Ian Leaf, nicknamed ‘The Tea Leaf” has changed his name and now allegedly runs an offshore company with another ex-convict.

Leaf was sentenced to 12-and-a-half years jail in 2006. On top of the £54m he stole through tax refunds, Inland Revenue investigators found he had amassed an extra £43m in profit.

The ex-car salesman lived the high life in a chateau on Lake Geneva, but when he was told to pay back some of the cash he claimed it had vanished.

But Leaf, 65 – now called Ian Andrews – was this week unmasked in court as the man behind Consult Partners.

The court heard that Kevin MacLeod, 59, helps to run the company as a consultant.

MacLeod was called Kevin Steele in 2008 when he was kicked out of Mishcon de Reya – the legal firm used by Princess Diana in

her divorce.

He was later jailed for five years for helping steal £18.4million.

The former director at Queens Park Rangers football club helped forge documents as part of a dodgy bid to buy luxury property on a resort where footballer Wayne Rooney owned a villa.

Despite their fraud convictions, neither Andrews or MacLeod were ever barred from running businesses.

And now they stand accused of sharp practice again by their former business partner Arpit Ahuja.

Consult Partners are suing Mr Ahuja for £75,000 for allegedly stealing business ideas and taking clients. But Mr Ahuja denies the allegations – and is now counter-suing for £18,250. He says they parted ways after he found out about Andrews’ past.

The Central London County Court heard this week that Mr Ahuja also claims Andrews siphoned off £55,000 that was owed to creditors and ploughed it into other companies.

Mr Ahuja also claims he was kept in the dark about MacLeod’s fraud conviction and previous name.

Andrews, who caught the bus home after this week’s disclosure hearing, is also accused of moving business to a Seychelles tax haven to conceal his involvement. The court heard Andrews denied claims Mr Ahuja was threatened, abused and blackmailed.

As the Tea Leaf in 2006, Andrews was given a confiscation order to pay back £16.25million.

But he told Southwark Crown Court he was in debt, blaming 9/11 and the burst of the dotcom bubble.

Last night he told the Sunday Mirror he had disclosed his involvement in all firms in accordance with the law and said MacLeod was not operating any businesses.

He said: “To allege or imply I have registered new businesses in the Seychelles in order to mask my involvement in these or other businesses is untrue.”

He claimed the only wrongdoing in the case was committed by Mr Ahuja and his wife and said Mr Ahuja’s “bare assertions have been made without any supporting evidence”.

He said all of his assets were passed to an official receiver after his conviction and no business was being run as a result of failure to seize his assets.

  • Feb 21, 2020

Vivier Mortgages Ltd - v - Lehane

JUDGMENT of Ms. Justice Baker delivered on the 12th day of October, 2017.

1. This judgment is given in the appeal of the plaintiff against the decision of the Circuit Court of 21st March, 2017 where His Honour Judge O’Donnabháin refused to grant an order for possession of certain lands held by the defendant subject to a charge made on 28th August, 1997 with the Wise Mortgage Company Limited. The plaintiff is the successor in title of the mortgagee and the charge is registered as a charge on Folio 67556F Co. Cork.

2. The parties have agreed that, as the application is one for summary judgment for possession, the test identified in the Supreme Court decision of Aer Rianta c.p.t. v Ryanair Ltd [2001] IESC 94, [2001] 4 IR 607 is applicable, and that the test to be applied is whether the defendant has disclosed an arguable defence.

3. The facts of the case are quite unusual. The civil bill for possession dated 21st October, 2013 was grounded on an affidavit of Richard Laurence Ashken a director of the plaintiff, the successor in title of the original mortgagee. The original loan of £21,000 was advanced on 1st September, 1997 by the Wise Mortgage Company Limited to the defendant. The loan is not denied. The loan agreement provided for the making of equal monthly payments, the last of which payments was made on 1st August, 2011. The mortgage was for the term of fifteen years and equal instalments of £431.67 were to be made, making a total amount repayable of €77,700.60 and showing an APR of 29.2%.

4. The plaintiff avers that as of 1st September, 2013 the redemption figure on the mortgage loan was the sum of €90,622.44, and that following demand of that sum, the plaintiff sought to exercise its statutory powers contained in s. 19 of the Conveyancing Act 1881. Thus far the matter is not contentious.

5. The defendant seeks to defend on a number of grounds, which I will deal with in sequence.

Interest rate

6. The defendant argues that the interest rate of 29.2% APR is “oppressive and unconscionable” and that he has in those circumstances an arguable defence. Certainly, seen in the context of current very low interest rates in the Irish market the APR of 29.2% does seem high, and perhaps very high. The plaintiff has conceded the point relating to the interest rate and has agreed to limit its claim out of the proceeds of sale of the secured property to the sum of €40,952.64 plus interest at 18% per annum from 1st September, 2012. That concession will reduce the amount now said to be owed to €155,653.12 as of 1st April, 2016.

7. The borrower states that he did have legal advice at the time of entering into the agreement, and that the monies were borrowed to buy livestock, and not to purchase the property itself which he owned in his sole name, free from encumbrances.

8. An amount of affidavit evidence has been adduced relating to the correct calculation of the interest and the defendant argues that the calculations of the plaintiff are in consequence unclear and not in accordance with the payment provisions contained in the loan documentation or in the “commitment letter” of 16th April, 1997 which provides for 180 fixed regular instalments. Clause 8 of the “commitment letter” provides for a different and reduced monthly payment of £289.92 to be applied “provided that payments are made on or before the due date each month”, and the borrower argues that accounts exhibited by the plaintiff do not adequately show how the plaintiff and his predecessors in title properly applied the reduced payment amount to take account of payments made early or on time.

9. Clause 11 of the “commitment letter” provides that the loan would be in default 30 days after failure to pay a monthly instalment, and provides in bold terms that 18% is the interest rate applicable to “all monies collected due” should default arise. The clause expressly refers to the “Rule of 78” now explained as being a “statutory rebate mechanism in the UK Consumer Credit Act”. The relevant provisions have not been exhibited on affidavit, and I accept as a matter of principle that the “Rule of 78”, if it does provide a means by which interest could be calculated is capable of applying to a loan in the jurisdiction of Ireland, if the reference to “the Rule of 78” is clear, and if there is no impediment to the incorporation by reference by a drafting device of a mechanism adapted from another jurisdiction. However, Mr. Lehane, even at this juncture, says he cannot identify the “Rule of 78”, nor can his financial adviser, and John Vaughan, a chartered accountant engaged by the defendant, has stated in a letter of 11th March, 2015 which has been exhibited before me that he does not understand how the interest is calculated, and that he does not understand on “what basis these rates of interest were to be calculated or applied”.

10. A court hearing an application for summary judgment may in a suitable case, and does in almost all cases, determine the question of interest if such can be ascertained on a calculation, whether that be a simple calculation or one requiring some further engagement and explanation by the parties. I am satisfied however that on the evidence before me that in the present case the basis on which interest can be calculated is opaque and obscure and, while the plaintiff has made a significant concession, it is not possible on the affidavit evidence to ascertain with any degree of certainty the amount of interest, or indeed the extent to which the defendant was in arrears at the date of the demand letter.

11. On that ground alone, it seems to me that the matter is not one suitable for summary judgment.

12. The defendant accepts that he borrowed the principal sum, that he fell into arrears, and that the charge was validly created. He says however, that at the date of demand the amount due by him was a sum of approximately €8,000 and that if that calculation is correct, he would have been in a position to repay the full amount of capital and interest due at that date.

13. The difference between the parties with regard to the amount due is at such a level that it makes it impossible to reconcile on affidavit evidence. This is not a case where the defendant has made a calculation by way of a mere assertion, and the calculation proffered by him, supported by a letter from his chartered accountant, raises sufficient doubts with regard to the true figure owed in respect of the loan for me to conclude that the matter is not one in respect of which an order for summary possession should be granted.

14. In the absence of clarity with regard to the figures, and having regard to the ambiguity in the loan documentation, it is at least arguable that the claim of the plaintiff could fail, either on the grounds that the loan documentation is void for uncertainty, or that the interest rate was not agreed, or amounts to a penalty.

Invalid letter of demand

15. The defendant relies on an argument that the amount stated in the letter of demand is incorrect and the claim was flawed, as the letter of the demand is not sufficient to enable the plaintiff to argue that the loan amount has become due for the purposes of an application under s. 62(7) of the Registration of Title Act 1964.

16. This question has been conclusively determined by Cregan J. in Flynn v. Nation Asset Loan Management Ltd. & Ors. [2014] IEHC 408, where he held that a letter of demand even if it did overstate the amount due “was still a valid letter of demand” (para. 233). The letter of demand in the present case is not a statutory notice such as is found s. 8 of the Bankruptcy Act 1998, but is rather akin to what Cregan J. called a “contractual demand”. The notice therefore, in accordance with that authority does not require to be exact, provided it is clear what is to be done by the borrower. This point cannot succeed.

Unlawful or illegal transaction

17. This is the most unusual aspect of this case. In his supplemental affidavit sworn on 16th March, 2015, the defendant complains that monies advanced by Wise Mortgage Company Limited were “the fruits of crimes”, and “the laundered proceeds of crime”. His affidavit evidence is to the effect that one Ian Leaf, also known as “Ian Andrews” is a “convicted fraudster”, who engaged in a “complex web of transactions” inter alia, through the unregulated sub-prime lending market. Confiscation proceedings, similar to those that might be instituted by the Criminal Assets Bureau (“CAB”) in this jurisdiction, were taken against Mr. Leaf/Andrews in the jurisdiction of England and Wales. It is arguable that the original mortgagee, the Wise Mortgage Company Limited transferred its assets to Home Funding Corporation Limited of which the present plaintiff is a direct successor in title.

18. Apart from his averment on affidavit, the defendant exhibits a newspaper article from the Irish Examiner newspaper dated 16th February, 2013 and a copy of an RTE News report of 6th February 2015 which refer to the establishment by Mr. Leaf/Andrews of a company, Home Funding Corporation Limited, which was funded through an “investment vehicle” basis in the Bahamas. Richard Ashken was identified as a “controlling party” of that company and it is he who swore the grounding affidavit in the present proceedings. Mr. Leaf/Andrews was sentenced to twelve and a half years in jail, reduced to ten years on appeal, for money laundering and tax offences. The exhibited documents are in no sense evidence, but they do elevate the averments of Mr. Lehane in his supplemental affidavit to more than “mere assertions”, and do in my mind raise a sufficient basis on which a court might be concerned to investigate the providence of the funds.

19. The affidavit of Joan Donnelly on behalf of the plaintiff does not deny that Home Funding Corporation Limited was one of the assets confiscated from Mr. Leaf/Andrews, nor does she deny any of the so-called “money laundering” activities of Mr. Leaf/Andrews. She says however, that as a matter of English law the purchase by Home Funding Corporation Limited of the confiscated assets cured “any taint that could possibly have affected any aspect of the plaintiff’s business” and as such, the monies advanced to the plaintiff were not in any way tainted by illegality.

20. That is an argument which requires evidence of foreign laws and none was adduced before me. While the proposition that a sale by CAB of confiscated assets can pass an unencumbered title is one that could be readily be accepted, the agreement by analogy with foreign legislation is not one that I can accept without evidence.

21. Accordingly, I consider that the defendant has shown he has an arguable defence on the ground of illegality, and sufficient to defend an application for summary judgment.

22. In all of the circumstances, the appeal from the Circuit Court is dismissed. The matter cannot be determined on affidavit.

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