Can Anything be Done Once your Home has been Repossessed?

By: Louise Smith, barrister - Updated: 12 Apr 2024 | *Discuss

 

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Even once a property has physically been repossessed by the court bailiff it is sometimes still possible to negotiate with the lender. Whilst the lender is under no obligation to accept any proposals, some may be prepared to agree terms under which a borrower will be allowed back into the property. A lender is most likely to agree to a borrower having the property back if they are able to clear the arrears by making a lump sum payment. If there is any possibility that such a sum can be raised it is always worth asking the lender whether they will agree to this.

After repossession the solicitors will probably send the case back to the lender who will start the sale process. Therefore, even if any negotiations up to this point have been with the lender’s solicitors the borrower may find that they now have to negotiate directly with the lender.

Retrieving Belongings

Post Eviction Applications to the Court

There are four situations in which a borrower might be able to persuade a court to let them back into the property:

• The borrower knew nothing about the possession proceedings because he was never given notice of them, (Case 1);
• The borrower knew nothing about the possession proceedings because he never received notice of them, (Case 2);
• The warrant of eviction was obtained by fraud, (Case 3);
• There was “oppression or abuse of process” surrounding the eviction, (Case 4).

If neither the lender nor the court sent the borrower any notification of the case, the lender was not entitled to a possession order. If the lender was not entitled to a possession order they were not entitled to apply for a warrant of eviction. Therefore the eviction should never have taken place. The court will set aside the possession order and allow the borrower back into the property. A borrower can only logically argue this if he did not attend the possession hearing.

The judge may set aside the possession order if a borrower never received any of the documents - even though they were all properly sent to the correct address. However, the judge will only set the possession order aside if the borrower can also prove that he made the application promptly and that the possession order would not have been made if he had attended the hearing. Again, this argument will only make sense if the borrower did not attend any hearings.

An eviction will be set aside if the lender was not allowed to apply for it. Examples of this might be:

• A court had postponed the eviction;
• The borrower was up to date with payments under a suspended possession order;
• The possession order had been set aside.

It is unlikely that a legitimate bank or finance company would deliberately allow an eviction to proceed in any of these circumstances.

What amounts to “oppression” or “abuse of process” will largely depend on the circumstances of each case. If a lender has followed all the rules it is highly unlikely that a borrower would win an application on this basis. A lender does not have to send a notice to the borrower warning him of the eviction. The likeliest scenario would be:

• a borrower reached an agreement with the lender or their solicitors that eviction would not take place if certain payments were made; and,
• the borrower made the agreed payments; and,
• the lender repossessed the property anyway.

Summary

Lenders are quite careful about complying with the rules. Therefore there is usually very little that a judge can do to help the borrower. If there is any possibility that the arrears can be cleared, or at least substantially reduced, re-entry into the property is more likely to be achieved by negotiating with the lender than by making an application to the court.

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What Happens When Lenders Sell Repossessed Properties?

Repossession and Squatters

Finding Somewhere to Live

Liability for Mortgage Shortfalls

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