What to do if your mortgage lender starts court action
Decisions the court can make
The judge makes a decision at the hearing based on the evidence they have.
They can allow you to stay in your home if you can show you can repay the arrears within a reasonable time.
They could make a:
outright possession order
suspended possession order
The judge could also decide to adjourn or dismiss your case in some situations.
Outright possession order
An outright possession order has a date for possession on it.
The judge is likely to make an order for outright possession if either you:
don’t attend the hearing
can't afford to repay the arrears by the end of your mortgage term
The date for possession
This is normally 28 days after the hearing.
It's not an eviction date but if you don't leave by this date, your lender can apply for a bailiff's warrant for eviction.
The date for possession could be set for around 3 months time if there's a good chance that your situation will improve but you don't have a precise date for this.
For example if you:
have a job offer but don’t yet know your start date
are due to get a lump sum payment but aren’t sure exactly when
If your circumstances do improve before the date for possession, you can apply back to court to have the order changed to a suspended order. You may be able to get it discharged completely if you can clear the arrears.
Suspended possession order
A suspended possession order means you can stay in your home if you keep to a repayment plan to clear the arrears within a reasonable period of time.
A reasonable time could be until the end of the mortgage term.
The court order says how the arrears must be repaid. For example: £50 a month on top of your normal mortgage payments.
The amount you have to pay may go up if your normal mortgage payments increase. This may happen if you had a payment holiday or break because of coronavirus. Get advice if you're in this situation.
If you miss a payment or are late, the lender can apply for bailiffs to evict you.
Once you've cleared all the arrears you'll need to apply to court to discharge the order. Otherwise your lender could apply for a warrant for eviction straight away if you fall into arrears in future.
An adjournment means the judge delays the hearing. It's common for this to be around 28 days but it can be for however long they think is necessary.
Adjournments for more time
The most common reason for an adjournment is to allow you or the lender more time to do something. For example if you:
need more time to seek legal advice
are waiting for a benefits claim to come through
don't have enough information about the arrears from your lender
need to delay because you’re waiting for a lump sum payment or for a sale to go through
The judge can also adjourn your case if you’ve made a complaint about your lender to the Financial Ombudsman Service (FOS). The case is often adjourned for around 3 months in this situation.
If you have agreed the sale of your home or you're due to receive a lump sum, the judge will usually want to see evidence of this
Adjournments on terms
The judge may adjourn your case on the basis that you keep to an agreed repayment plan to clear the arrears.
You shouldn’t need to go back to court if you stick to the repayment plan.
Adjournments on terms are normally only used if you have less than 2 months of arrears at the time of the hearing.
When your case could be dismissed
Dismissal usually means there won’t be any further court action, but you may still have to pay court costs and the lender’s legal costs.
Your case could be dismissed if there are no arrears at the time of the hearing or your lender started court action without a good reason.
When you can get a court order changed
You could apply to have your possession order changed if you:
had a good reason for not attending – for example, you were in hospital
clear all your arrears and want to remove a suspended order
have a change in financial circumstances
Costs of court action
Court fees and your lender’s legal costs are usually added to your mortgage debt. This can apply even if your court order doesn’t say anything about costs.
Last updated: 27 May 2021