Possible defences
This content applies to England only.
Housing laws vary between England and Scotland. Get advice relating to Scotland
If you are a homeowner and you're facing repossession, you may be able to show the court that you have a defence.
It is important to remember that it may be possible to stop the process at any stage. You should speak to an adviser as soon as you can if you're facing court action. Use our directory to find face-to-face advice services in your area.
Is there a dispute over the amount of arrears?
If you do not agree on how much your lender says you owe, the judge may adjourn the case and set a new hearing date. This gives both you and your lender time to get more information to prove what the amount of arrears is. For example, your lender should provide details of payments they claim you have missed and you can show proof of the payments you have made.
In the meantime, you can continue to negotiate with your lender and make payments to reduce the arrears.
Can you pay off the arrears before the court hearing?
If all the arrears have been cleared by the time of the court hearing, the case is likely to be adjourned. Your lender can apply to restart the possession claim if you fall into arrears again, and you will still have to pay the lender's legal costs for bringing the case to court which will be added to your loan.
Is the 'particulars of claim' incomplete or incorrect?
A particulars of claim form sets out the details of your lender’s claim against you. If the lender doesn't complete the particulars of claim correctly, the judge may not allow them to present any new information at the hearing. In some circumstances, the claim may be dismissed and the lender or freeholder will have to re-apply to the court to evict you. In this situation you should not have to pay your lender's legal costs. However, it is more likely that the court will allow the lender to amend the particulars of claim or simply allow the hearing to proceed despite the errors.
Will your lender be able to prove the claim?
If your lender cannot show any basis for evicting you, the court will dismiss their claim for possession. You should not have to pay their legal costs in this situation.
Were you given bad advice?
If you believe that you entered into the mortgage agreement because the lender had misrepresented the terms or the effect of the mortgage, or that the lender put you undue pressure to do so, you may have a defence open to you. These defences are called undue influence, and misrepresentation. These are complex areas of law, so get advice if you think either could apply to you. If either undue influence or misrepresentation can be proved, the case may be dismissed.
Do I have another defence?
The court may decide to adjourn a case, delay an eviction or suspend a possession order if you:
- have an outstanding benefit claim that will clear or significantly reduce the arrears
- are selling your home and the proceeds from the sale will clear the arrears, but you need more time to complete the sale
- are arranging to clear the arrears soon
- are having difficulty finding somewhere else to live
- can show that you are able to resume making regular payments as they become due under the mortgage and clear the arrears within a reasonable period of time – generally, the ‘reasonable period’ of time will be the full term of the mortgage, though other factors may be relevant.
