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Your mortgage lender takes you to court – how to prepare for the court hearing

This advice applies to Wales

If you're in arrears with your mortgage, your mortgage lender might start court action. This is called possession action.

If your client’s repossession was paused before 20 September 2020 because of coronavirus

Your client’s mortgage lender must ask the court to end the pause.

You can find out how your client’s lender should handle these repossessions because of coronavirus on the FCA website.

This page tells you how to prepare for a court hearing with your mortgage lender.

It tells you:

  • what you should do before the hearing
  • what information you may need to take with you
  • who you can take with you to the hearing
  • what you should do when you get to the court
  • what happens when the case is called
  • what the hearing will be like

What this page doesn't tell you is what kind of decisions the court can make and what effect these can have on the money you owe on your mortgage and on your home.

For information about these things, see What happens when your mortgage lender takes you to court and Eviction for mortgage arrears.

For more information about how to deal with your mortgage lender if you're in mortgage arrears, see Dealing with your mortgage lender.

Notice of court action

If your lender starts court action, you will get court papers. For new claims, these will include:

  • a 'claim for possession of property' with full details about the case against you
  • any evidence your mortgage lender wants the court to look at
  • a 'defence form' you can use to explain the reasons you should stay in your home

If you receive a claim for possession of property, you should talk to an adviser as soon as possible. You can get advice about trying to come to an agreement with your lender and what to put on your defence form.

You might be able to get legal aid to help you with your case - for example if you're on a low income or get benefits. Check if you can get legal aid on GOV.UK.

Challenging the possession

If you can, talk to an adviser before you challenge the possession.

You can use the defence form to give your reasons for challenging your eviction. You can find a copy of the defence form on GOV.UK.

If you find it difficult to use the defence form, write what you want to say on a piece of paper instead.

Filling in the defence form

Give as much detail as possible. Tell the court about your financial and personal circumstances and what you've done to deal with the arrears.

The defence form also has a section about the money coming in and out of your household. This is so the judge can see how much you can afford to pay towards your arrears.

You should also say if:

  • you think think you're not legally responsible for paying the mortgage
  • you disagree with anything the lender has said in the in their claim
  • your lender hasn't given you a reasonable chance to resolve things
  • you think your lender hasn't followed the procedures under the pre-action protocol - find out about the pre-action protocol

It is not a defence to say you can't afford to pay the mortgage. You should try to come to an agreement with your lender about how you will pay back what you owe. Find out about how to deal with mortgage debts and dealing with your mortgage lender. If your lender has started court action, you should fill in and return your defence even if you're trying to come to an agreement with them.

Coronavirus - if you've been struggling

Say in your defence if you've been struggling because of coronavirus. For example, say if:

  • you or someone you live with has had coronavirus
  • you've had to self-isolate
  • you've lost your job, you're earning less or you've had to claim benefits

When to send back your defence form

You should send the defence form or what you've written back to the court within 14 days. The address will be on the claim.

If you miss the deadline, you should still send it back as soon as possible.

Make sure you keep a copy. You'll need it to remember what you've written later on.

Before the possession hearing

It is essential that you attend the hearing even if the lender tells you that you don't need to. If you don't go, the court might grant an outright possession order which means you could be evicted from your home.

Before you go to the hearing, make sure you find out where the court is and leave yourself plenty of time to get there.

If you have any special needs, it may help to visit or phone the court beforehand to find out if and how they can help you. If you need the court to provide an interpreter to come into the hearing with you, check whether they offer this service.

If you can't go to the possession hearing, tell the court as soon as possible. Explain why you can't go - for example because you're too sick.

If you can't go in person, the court might agree that you can join the hearing by phone or video call. If you do this, your legal adviser or the duty adviser can still go in person. You can check how to prepare for a hearing by phone or video call.

Take time to prepare yourself before the hearing and think about the information the court might need. This could include:

  • the defence form if you haven’t already sent this in
  • a financial statement. This has information about money you have coming in and going out of your household. You can use it to prove you can afford any offer you make to repay your arrears
  • any letters between you and the lender showing how you've tried to negotiate payment of your mortgage arrears
  • if you're selling your property to pay off the arrears, your estate agent’s details
  • proof of any payments you've made since the claim for possession of property was issued
  • proof of any claims you’ve made for state benefits or tax credits which you're still waiting to hear about
  • written confirmation of any lump sum payments you're waiting for such as money you're owed in a will or for work that you've done for someone
  • proof of any payments under a mortgage payment protection insurance policy which you are due.

You may find it helpful to note down the things you want to say to the judge when you get to court.

For more information about payment protection insurance policies, see Payment Protection Insurance in Credit and debt fact sheets.

For more information about negotiating with your mortgage lender to pay off your arrears, see Dealing with your mortgage lender.

For more information about state benefits and tax credits, see Benefits.

What happens when you get to court

The claim for possession of property will give you a time for the court hearing. You should make sure you arrive before this time.

However, once you get to court, delays can occur and you may have to wait a long time before your case is called.

When you arrive at the court, find the waiting room and tell the usher that you are there. The usher will tell you where to go and what to do.

Your mortgage lender will usually send a solicitor along to represent them at the hearing. The solicitor may approach you in the waiting room to try and agree an arrangement for you to repay the arrears.

It's never too late to try and come to an agreement with your lender, even in the waiting room. But don’t be tempted to make an offer that you can’t afford. If possible, try to get advice before you agree to anything. If in doubt, you should wait until the hearing where the judge will decide how much you can afford to repay.

Who can you take into the hearing

You can go to the hearing alone or you might feel you would like some support. This could be:

  • someone you have a joint mortgage with. If you have a joint mortgage, both of you should try to go to the hearing. If you have children, try to arrange for someone to look after them while you attend
  • your adviser, if you have sought advice from an advice agency. They may be able to go to the hearing with you and present your case. You are more likely to avoid losing your home if you take an adviser or solicitor in with you
  • a duty adviser at your local county court if they're available - the 'notice of possession hearing' from the court will tell you how to contact the duty adviser
  • a witness, if you need one
  • if you don't have an adviser, you can take a friend into the hearing with you. However, if you want them to speak at the hearing you'll have to ask the judge for permission.

When your case is called

When your case is called, the usher will tell you where to go and what to do.

Most possession hearings are held in private in the judge’s office. This is known as ‘chambers’. The judge does not usually wear robes or a wig.

If the court case is likely to be complicated, a more senior judge may deal with it in a courtroom, but this will still be in private.

At the hearing

The hearing will last about 15 minutes.

The judge will carry out the hearing in the way they think will be fair to both sides.

If you don't have a legal adviser with you, the judge will usually give you help with how to handle the procedure of the hearing and the kind of evidence you can give.

Your mortgage lender or the person acting for them usually speaks first. You might find it helpful to take notes of anything they say that you disagree with.

The judge will want to be sure that both sides have followed the mortgage arrears pre-action Protocol. These are procedures you and your mortgage lender are expected to follow before the case comes to court.

For more information about these procedures, see What happens when your mortgage lender takes you to court.

The judge will also want to be sure that granting your mortgage lender a possession order, which could lead to you being evicted from your home, is the last resort.

If there are no complicated issues of law to decide, the judge will usually make a decision there and then, providing they have enough information before the hearing. The decision the judge makes is called a judgment.

If your case is more complicated, the judge might not be able to make an immediate decision. In this situation, the judge might put the case on hold (adjourn the case) and give directions about what will happen next. The court will confirm these directions in writing later.

For more information about the decisions a judge can make at a mortgage arrears hearing, see What happens when your mortgage lender takes you to court.

Further help

For more information about how to deal with mortgage problems see:

National Homelessness Advice Service

Go to www.nhas.org.uk.

The Money Advice Service

Go to www.moneyadviceservice.org.uk.

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