If your mortgage lender takes you to court

This advice applies to Wales. See advice for See advice for England, See advice for Northern Ireland, See advice for Scotland

If you’re in mortgage arrears and you aren’t paying them off, your mortgage lender might take you to court. This doesn't always mean you’ll lose your home.

If your mortgage lender is taking you to court, you’ll get court papers in the post. 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

The claim for possession of property should give you a date for a court hearing - this is usually within 8 weeks of the court sending you the papers.

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.

Your mortgage lender shouldn’t start court action if you’re still trying to come to an agreement - if they do this, talk to an adviser.

Stopping your case going to court 

You might be able to stop your case going to court by agreeing a payment plan with your lender. Your mortgage lender must treat you fairly and give you a reasonable chance to make arrangements to pay off the arrears. Find out more about how to deal with mortgage debts.

If you’re at higher risk from coronavirus

If your mortgage lender is trying to repossess your home, you should tell them you’re at higher risk of getting ill - they might pause your case.

Check if you're at higher risk on the NHS 111 Wales website - you'll need to select the link that says 'Advice for people at high risk' to see the full list.

If your mortgage lender does try to repossess your home, talk to an adviser.

Check if you can get ‘breathing space’ 

If you need time to get advice about dealing with your mortgage arrears and any other debts, the government-backed Breathing Space scheme could help.

If you’re eligible, you could get 60 days of breathing space where your creditors can’t:

  • contact you

  • take action to make you pay

  • add interest and charges to your debt

It covers most debts, including mortgage arrears, credit and store cards, loans, overdrafts and arrears on household bills. You'll need to get advice from a debt adviser first - they’ll check all your debts to see if they’re covered.

To see if breathing space is right for you, talk to an adviser.

Getting help with your case

A solicitor could give you legal advice about your case and represent you in court.

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

If you don’t have your own solicitor, you can speak to a duty solicitor at the court. They can give you advice about your case, but they might not be able to come into the hearing with you. 

You can contact the court to find out how their duty solicitor scheme works. Check your notice of possession hearing for details of how to contact them. 

If you haven’t spoken to a duty solicitor before your hearing, you can still ask to speak to them when you arrive at court.

Filling in the defence form

Once your lender has started court action, you should fill in your defence form. If you’re trying to come to an agreement with them, you should still fill it in. 

If you can, talk to an adviser before you fill in the form. 

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

You should send the defence form or what you've written back to the court within 14 days. You can find the address on the court papers they sent to you. You should also send a copy to your mortgage lender - you can find their address on the mortgage claim form.

If you need another copy, you can find the defence form on GOV.UK

If you miss the deadline, you should still send it as soon as possible. If you haven’t sent it back before the hearing, you can take it with you on the day.

It's a good idea to keep a copy of the form, in case you need to check what you've written later on. 

If you don’t send a reply to the court, you should still attend the hearing. 

If you’ll struggle to take part in the hearing, you should write this on the form. For example, if:

  • you have a mental health condition

  • you’re disabled or have a health condition

  • you’ll need an interpreter at the hearing - either because you can’t understand English or because you are Deaf or hearing impaired

 Talk to an adviser if you aren’t sure.

What to say on the form

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

The defence form 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 you're not legally responsible for paying the mortgage

  • you disagree with anything the lender has said in their claim

  • your lender hasn't given you a reasonable chance to resolve things

It’s 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’ll pay back what you owe.

Find out about how to deal with mortgage debts.

If you're in arrears because of coronavirus

Say in your defence form if you have mortgage arrears because of coronavirus. The court will take this into account when making their judgment. For example, say if:

  • you or someone you live with had coronavirus

  • you had to self-isolate

  • you lost your job, you're earning less or you've had to claim benefits

Check if you can get a time order

You might be able to ask the court for a ‘time order’. This would give you more time to pay your mortgage, by reducing your payments or interest.

You can ask for a time order if:

  • you expect your financial situation to improve - for example if you are recovering from an illness or are going to start a new job 

  • you need more time than you have left on your mortgage agreement to repay the arrears

Talk to an adviser to see if you should apply for a time order.

Sending other evidence

It’s a good idea to include evidence to back up what you say on your defence form. This could include:

  • a list that shows what you're earning and spending 

  • any letters between you and your lender - these should show how you’ve tried to agree payments with them

  • proof of any payments you've made to your lender

  • proof of any claims you’ve made for benefits or tax credits that you're still waiting to hear about

  • written confirmation of any payments you're waiting for - such as money you're owed in a will or for work you've done

  • proof that someone plans to give you money

If you're selling your property to pay off the arrears, you could include your estate agent’s details. It’s a good idea to keep a copy of any evidence you send.

If you want somebody to give evidence for you

For example, a friend or family member could write a letter if they're going to give you money to help you pay your arrears. If someone has information that might help your case, you should ask them to write a letter explaining the situation. 

You should send the letter with your defence form.You should also send a copy of the letter to your mortgage lender. You can find their address on the mortgage claim form.

The judge will decide whether they need to speak to the person. It’s unlikely that they will - but if they do, the person will need to come to court.

If you bring someone who wasn’t asked to attend, you’ll need to ask the judge for permission for them to speak. 

Going to the hearing

You should attend the hearing even if the lender tells you that you don't need to. If you have a joint mortgage, both of you should try to go to the hearing. If you don't go, the court might grant an outright possession order which means you could be evicted from your home.

If you can't go to the 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.

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

If you have any access needs, it might help to visit or phone the court before the hearing to find out if and how they can help you. If you need the court to arrange an interpreter for the hearing, tell them about this on your defence form or contact the court as soon as possible. You can find the court’s contact details on GOV.UK.

You can go to the hearing alone or you might want to take someone to support you.

What happens when you get to court

You should make sure you arrive early for your court hearing - at least 30 minutes before the time on your hearing letter. 

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

If your hearing is delayed, you might have to wait a long time before your case is called.

Your mortgage lender will usually send a solicitor along to represent them at the hearing. The solicitor might 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 you aren’t sure, you should wait until the hearing where the judge will decide how much you can afford to repay.

What happens at a possession hearing

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

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

The hearing will last about 15 minutes.

If you don't have a legal adviser with you, the judge will usually give you help. They’ll explain 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 your case comes to court.

If your case is straightforward, the judge will usually make a decision at the hearing - this is called a ‘judgment’. 

In complicated cases, the judge might not be able to make an immediate decision. If this happens, the judge might pause your case and give instructions about what will happen next. This is called ‘adjourning’ the case. The court will confirm these directions in writing after the hearing.

Find out more about possession orders and how to appeal them.

If the court decides to dismiss the case

The judge might decide to dismiss the case at the hearing. This is also called 'striking out' the case - it means the case will be closed. It’s unusual for possession cases to be dismissed.

If this happens, you can ask the judge to make an order that your lender should pay their own legal costs.

You’ll still need to pay off your arrears. 

Paying court costs

You’ll usually have to pay court costs. Your mortgage lender will add the costs to your mortgage account, and you’ll have to pay them along with your arrears.

Costs include:

  • court fees

  • solicitor's and barrister's fees and expenses for both sides

  • expenses for anyone who came to give evidence

The court might order that some or all of the lender’s costs aren’t added. They might do this if they think the costs are unreasonable or that your lender has behaved unreasonably in starting possession proceedings. For example, if your lender didn’t give you enough time to negotiate with them. 

The situation might be different if you’re getting legal aid. Your solicitor will be able to tell you more about this. You can:

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Page last reviewed on 26 June 2023