If your lender is trying to repossess your home
If you haven’t been repaying your mortgage or secured loan, you might be at risk of losing your home. Your mortgage lender might take court action to repossess your home if you’re behind on your payments.
What you can do now
You should consider getting independent financial advice before making any decisions about your mortgage.
If your lender has started legal action to repossess your home, you should get help from a Citizens Advice Bureau. You might be able to come to an agreement with the lender and get the legal action suspended.
Even if your lender has a court order to evict you, it might not be too late to find a way to stay in your home.
If you haven’t been threatened with legal action but you’re having difficulty paying your mortgage, options are available. Read more about what to do if you can’t pay your mortgage.
Respond to letters from your lender
If you’ve already had a letter from your lender and you haven’t replied, you’ll probably get a second letter. The second letter might give you a deadline for responding or making a payment.
It’s important to contact your lender and explain your situation. They can advise you about what to do next.
If your existing arrangement to pay the arrears has broken down
If you’ve already made an arrangement with your lender to pay back the arrears and this has broken down, you might be facing legal action to repossess your home.
Your lender can still set up another arrangement to avoid evicting you.
If you can’t stop the case going to court, this doesn't always mean that you’ll lose your home. There are steps that your lender must follow, beginning with notices that they must send you to warn you that repossession procedures are starting.
Notices from your mortgage lender
If you’ve received letters from your lender and haven’t contacted them, they might:
send you a document asking you to pay the arrears - this is called a notice of default
send you a document which ends the mortgage agreement and asks you to repay all of the outstanding loan - this is called a calling-up notice.
Find out more about notices from your lender on the Shelter Scotland website.
What your lender has to do before they can take you to court
Your lender can only take you to court if they complete certain steps, called pre-action requirements.
Your lender must:
give you clear information about the terms of your agreement and the amount you owe
offer alternative ways of paying to avoid repossessing your home
not take you to court if you’re taking reasonable steps to stick to your lending agreement
give you information on how to get debt advice and suggest that you contact your local council to get advice about what will happen if you need to be re-housed.
Your lender has to tell your local council
If your lender serves you with a notice to repossess your home, they have to let the local council know that they’re taking this action and that you might end up homeless. They’ll do this by sending the local council a section 11 notice.
The local council will then get in touch with you to offer support and advice about housing. It might also get in touch with your lender if you want the local council to try to work out a solution.
If legal action is progressing and you’ve not heard from your local council, you should get in touch with the council’s housing department. You can find contact details for your local council on mygov.scot.
Going to court
Your case will go to court unless you’ve opted for voluntary repossession. This is when you leave the property and hand back the keys to your lender - it should always be a last resort.
If your lender is taking you to court to repossess your home, you’ll get:
a notice from your lender - giving them the right to sell your property
an initial writ - telling you that the lender has made an application to the court
Even at this stage, it’s not too late to negotiate a repayment arrangement with your lender. If you can, you should keep paying off your arrears, as this will be taken into account if you have to go to court.
The court will decide if you should be allowed to stay in the property or not.
Who can go to court
You can go to court if you’re an entitled resident. This means you’re:
the owner of the property - the person named on the title deeds. This person might not be the person with the mortgage
the spouse or civil partner - of the person with the mortgage or the owner
a cohabiting partner - of the person with the mortgage or the owner, but only if the person with the mortgage or the owner is still living with you and the property is your only or main home
a former cohabiting partner still living in the property - if the owner or the person with the mortgage has moved out and you have a child under 16 together who still lives in the property.
Do you need a solicitor
At the court hearing, you can represent yourself, get support from a lay representative or be represented by a solicitor.
It’s particularly important to have legal representation if you disagree with the lender about the amount of arrears that it claims you owe.
If you have a low income or are getting benefits, you could be eligible for help with legal costs for advice before a court hearing and for representation at the court hearing if you have a solicitor. Find out more about help with legal costs.
An approved lay representative might be able to help you if you don’t qualify for legal aid.
Using a lay representative in court
If you’re the person with the mortgage or an entitled resident, you can appoint an approved lay representative to represent you in court. A lay representative is someone who can help you prepare and conduct your case.
If you appoint an approved lay representative instead of a solicitor, you won’t be entitled to apply for legal aid. Read more about how to use a lay representative in court.
What can happen in court
Will you have to speak in court
You or your legal or lay representative will be asked to explain:
why you got into difficulties with your mortgage - for example, because you’ve had health problems or been made redundant
if you’ve done anything to come to an arrangement with your lender
why you haven't stuck to an arrangement if you’ve already made one
how you hope to pay off your arrears and get your mortgage back on track
if you’ve made efforts to find somewhere else for you and your family to live
how long it might take you to find alternative accommodation.
If you need more time to pay off the debt
If you think you can pay off all of your mortgage arrears in a short time, you can ask for the court to give you time to do this. This is called asking for the case to be continued.
If your case is continued, a date will be set for your case to go back to court. If you’ve paid off all your arrears, no further action will be taken. But if you haven’t kept to the agreement, the sheriff will decide if your lender should be allowed to repossess your home.
What the lender will say
Your lender will have legal representation. The solicitor should tell the court:
how much your arrears are
how long you’ve been in arrears
their view of how you came to be in arrears
about any effort they’ve made to contact you and come to an arrangement to pay off your arrears, including evidence that the pre-action requirements have been met
if you’ve kept to any arrangements you made to pay off your arrears.
What can the court decide
If your lender has applied to court for the right to repossess your home and you’ve opposed the action, the court can:
dismiss the case - this usually only happens if the lender has failed to follow the right procedures or doesn’t have a case
continue the case - for example, because you’ve made a new arrangement to pay off the arrears
give your lender the right to repossess your home - this is called a repossession order. Find out what happens if a repossession order is granted.
Asking the court to review its decision
You can ask the court to review its decision if you or one of the entitled residents didn’t appear and wasn’t represented in court when the decision was made. This is called recalling the decree.
Who pays the court costs
Your lender can usually pass on all their recovery costs to you. They don’t need a court order to do this.
Costs will be added to your mortgage account for every hearing. These costs will include:
solicitors’ fees and expenses
The court might be able to order that some or all of the costs are not added, for example if you’re getting legal aid. But the terms of your mortgage agreement might still allow your lender to recover their costs from you.
The situation might be different if you’re getting legal aid. Your solicitor can tell you more about this.