How borrowers defend mortgage possession claims

Borrowers should complete the defence form and return it to the court, collect evidence and attend the hearing to get advice from a duty solicitor if not already represented.

This content applies to England & Wales

Before court action

Mortgage lenders should comply with the required steps before court action before issuing claims for possession. The protocol requires lenders to contact borrowers in arrears and take all reasonable steps to discuss the reason for the arrears and proposals for repayment. Lenders do not normally issue claims for possession if the borrower is paying the contractual monthly instalment and an amount towards the arrears. 

See Negotiating with mortgage lenders if paying is difficult.

The possession case

Possession proceedings must be brought in the County Court, unless there are exceptional circumstances, such as complex factual or legal issues, in which case the High Court may be the appropriate court.[1] Proceedings generally have to be issued in the County Court district where the property is located. 

Completing the N11M defence form

Following receipt of the letter of claim from the lender's solicitors, if the borrower does not respond or is unsuccessful in negotiating with the lender, they are likely to receive a claim form from the local County Court hearing centre giving a date and time for the possession hearing. 

The borrower should complete the defence form (N11M). The form does not ask the borrower specifically to give the reasons for the arrears, although the borrower may state what the reasons are. The form asks for details of income and expenditure. The most important element in the defence form is likely to be the borrower's proposals for repayment of the arrears. A witness statement is the correct way to submit detailed information to the court if the borrower seeks to rely on detailed information about their circumstances, for example in a case where the borrower is asking the court for a time order. See evidence in civil claims for more information about witness statements. 

The form asks the borrower to make an offer. The borrower can attach a financial statement prepared with the help of a debt adviser if one is available. 

If no defence is filed, the borrower may attend the hearing and the court may still consider any defence or proposal to pay.[2] The borrower should retain copies of evidence of means or any other documents they seek to rely on to bring to the hearing.

The borrower should return the defence form to the court within 14 days. If that is not possible, the borrower should try to return it as soon as possible. If the defence is sent in late, a copy should be sent directly to the lender or their representative so they have sight of it before the hearing. 

Complex and substantive defences

The court may adjourn the case if further time is needed to consider the defence or the lender needs time to respond to the defence. Directions may be issued by the court for the filing of further documents such as witness statements.[3] The costs incurred by the lender of adjourned hearings are likely to be added to the borrower's mortgage debt so adjournments should be avoided unless there is a good reason

If the borrower has a substantive defence to the lender’s claim (that the money is not owed, or that they have been a victim of undue influence or fraud for example) a properly drafted defence should be filed at court with the help of a solicitor or experienced lay advocate. The court may grant a short adjournment to allow a borrower to obtain legal advice. The borrower should be prepared to give reasons for the adjournment and should be aware they may have to bear the lender’s additional costs. 

Going to the hearing

The borrower may be able to obtain advice and representation from the County Court duty representative for housing possessions. Contact the court for details of the scheme.

Within five days of receiving notification of the hearing date from the court, the lender must send a notice to the property addressed to 'the tenant or the occupier' advising whoever is residing in the property of the date of the hearing.[4]

It is essential for the borrower to attend the court hearing. 

Where possible, the borrower should take to the court:

  • evidence of household income such as wage slips

  • proof of a claim for support for mortgage interest (if applicable)

  • details of any lump sum payment they are due to receive such as a tax rebate, insurance pay out or arrears of benefits

  • an up-to-date valuation of the property and evidence that the property is on the market if the borrower is seeking time to sell

  • details of, and receipts or other evidence for, any payments they have made since the possession claim was issued to help establish the exact level of the arrears

  • correspondence with the lender

Before the hearing, the borrower should consider whether or not it is realistic to remain in the home or whether to request time to sell. The court will normally only grant an adjournment if the property is already on the market, so the borrower should take steps to advertise the property as soon as possible.[5] The court may defer possession as long as there is sufficient equity to cover the mortgage debt and costs.[6]

Any proposal to pay should be accompanied by a statement of income and expenditure. For the court to exercise the power to suspend possession under the Administration of Justice Acts the proposal should clear the arrears within a reasonable period.[7] The starting point for deciding a reasonable period could be the remaining term of the loan.[8]

If the borrower cannot make a proposal which will clear the arrears and any other amounts that fall due in the meantime within a reasonable period, they may request a time order if the agreement is a Regulated Mortgage Contract. 

Hearing procedure

Possession hearings for mortgage arrears take place in the district judge's chambers, which is the private office of the district judge and not open to the public. 

The following people will usually be at the hearing:

  • the district judge hearing the case

  • a representative from the lender

  • the borrower

  • the borrower’s representative, if there is one

The lender's solicitor will begin by outlining the history of the case. The borrower or their representative will then be asked to comment on the lender's case and explain why an outright possession order should not be granted. It is good practice to state the order requested and then give the reasons for doing so. The judge will consider whether the relevant test to interfere with the lender's right to possession has been met.

The hearing will normally last for about 10 minutes. If there are complex legal or factual issues or the lender has not complied with the Pre-action protocol for mortgage arrears then the court should be asked to adjourn and to give directions for a further hearing. The court may order that relevant documents be exchanged and that witness statements be filed with the court and exchanged.

Most possession claims are decided on the day. Unless directions are given for a trial or the claim is dismissed, a date for possession will be given or payment terms will be set by the court. It can take time for the court to send out a copy of the court order, so borrowers should ensure they know when to make a payment and how much to pay. Borrowers can ask the district judge to expedite the order if it is needed for a homeless application to the local authority.

Coronavirus guidance

HM Courts & Tribunals Service has published guidance for those attending court or tribunal hearings during the coronavirus (Covid-19) outbreak. The guidance will be updated when new advice is available.

Last updated: 22 March 2021

Footnotes

  • [1]

    CPR PD 55.3.1.1(1).

  • [2]

    Cheltenham & Gloucester Building Society v Grant, The Times, 9 May 1994.

  • [3]

    CPR 55.8(1)(b).

  • [4]

    CPR 55.10(2).

  • [5]

    Bristol West Building Society v Ellis [1996] 29 HLR 282; Mortgage Service Funding plc v Steele [1996] 72 PCR D40.

  • [6]

    Target Home Loans v Clothier [1994] 1 All ER 439 CA; Cheltenham & Gloucester Building Society v Krausz [1997] 1 All ER 21 CA.

  • [7]

    s.36(1) Administration of Justice Act 1970; s.8 Administration of Justice Act 1973.

  • [8]

    Cheltenham Gloucester Building Society v Norgan [1996] 1 All ER 449.