What to do if your mortgage lender starts court action
What to say to the judge
Coronavirus update: repossessions are on hold
The Financial Conduct Authority has said that mortgage lenders shouldn't start or continue court action for repossession until at least 31 October.
That means they must not go to court for a repossession order or ask bailiffs to evict you.
You can ask your lender for support if you're struggling because of coronavirus.
The hearing is your chance to explain to the judge why your home shouldn't be repossessed.
Who can speak
You can speak for yourself or your solicitor can speak for you.
If your adviser is not a solicitor, they can speak for you if they are part of the court's duty scheme or work under the supervision of a solicitor.
Otherwise they must ask the judge for permission.
Who speaks first
Normally the lender's representative speaks first. They have to explain to the judge how the lender has followed the correct rules on repossession.
They will tell the judge:
- how much is owed
- when you last made a payment
- what they are asking the court to do
The representative should also tell the judge if you have made a payment arrangement with the lender.
You can then respond and give your arguments against repossession. If you are there with another joint owner, try and agree what you want to say beforehand.
The judge may have questions for you or the lender's representative.
How to speak to the judge
You should call the judge ‘sir’ or ‘madam’. Ask the court usher if you are not sure what to call them.
Be polite and listen carefully to what is said. Try not to interrupt the judge or the lender's representative. You should have an opportunity to speak if you disagree with something.
Ask for things to be repeated if you need to. If an order is made you may not get a copy for several weeks, so write down what you are asked to pay and when.
It can be helpful to have notes of what you want to say, as well as copies of your paperwork.
If a payment was made recently the lenders records may not have been updated, so have evidence to show the judge.
What to say
You need to give reasons why your home should not be repossessed.
Make an offer
You need to show the judge that you can afford to pay the arrears.
You’ll need evidence if you are offering a lump sum to clear the arrears immediately. For example, a bank statement showing you have the money.
If you are offering to make regular payments, you’ll need to show that you can afford:
- your monthly mortgage payment
- a set amount towards the arrears every month.
You can use the income and expenditure sheet sent with the defence form or a financial statement prepared with a debt adviser.
However, any evidence of income and outgoings is better than none.
Ask for time
You can ask the court for more time if you can prove that you:
- are going to sell the property
- will be able to clear the arrears in the near future
The court will normally only allow you time to sell the property if you can provide evidence that you have a buyer and the sale is going ahead. For example, if you have exchanged contracts.
If a change of circumstances mean you will be able to clear the arrears in the near future you will also need evidence. For example, proof of an inheritance, or the date when you will be starting a new job.
The judge may decide to adjourn the case to allow you time. This will increase your court costs.
Alternatively, they may make a possession order that will not be enforced if you meet certain conditions.
Raise other issues
The repossession can sometimes be stopped if the lender has not followed the correct steps.
If the lender has made mistakes in the claim form, then the court might dismiss the case or allow the lender time to correct the mistake. For example, if the level of arrears is incorrect.
You can ask the court to delay the proceedings while you make a complaint to the Financial Ombudsman Service (FOS) if:
- your lender hasn't followed the rules
- you were misled about the terms of the mortgage
The FOS can look at the way the lender has dealt with your case. Sometimes the FOS will tell the lender to stop repossession proceedings and come to a reasonable repayment arrangement out of court.
Last updated 31 October 2019 | © Shelter
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