Appealing Against a Mortgage Repossession Order

If the judge hearing a repossession case makes a decision which one of the parties disagrees with, it is not possible simply to ask another District Judge to reconsider the case. Instead an appeal must be made to a more senior judge. Appeals against mortgage possession decisions are usually made to a Circuit Judge.

A party may be able to appeal against a decision made at any stage of the court repossession process – whether it is the original possession order or a later decision in relation to a warrant of eviction. A defendant borrower is most likely to appeal a judge’s refusal to postpone an eviction. This is because a refusal to postpone an eviction may represent the defendant’s last chance to prevent their home being repossessed.

Appeals are generally only made against a final decision or order. Therefore, it would rarely be appropriate to appeal against a judge’s decision to adjourn a mortgage repossession case to another day.

Applying for Permission to Appeal

The modern Appeals process is not there to help people who simply do not like the decision made by a judge. The purpose of an appeal is to provide a party with redress where a judge makes a decision which is incorrect or which is rendered unjust because of a significant “procedural irregularity”. Permission to appeal must be obtained before an appeal can be made.

Permission to appeal will generally only be given if an appeal has a real chance of succeeding. A party who wishes to appeal has two chances to obtain permission. The first chance comes at the end of the hearing at which the decision was made – the District Judge themselves may be asked for permission to appeal. If the judge refuses to give permission, written reasons for this refusal may be requested. A further request for permission to appeal may subsequently be made directly to a Circuit Judge.

A Circuit Judge may consider a request for permission to appeal either on paper or at a hearing. If the application takes place at a hearing the other party, (the mortgage lender,) does not necessarily have to attend. If the lender does attend it is not their job to persuade the judge not to give permission to appeal. Rather they should help the Circuit Judge by setting out the background of the case, explaining what happened at the earlier hearing and outlining the relevant law if required to do so.

The Appeals Procedure

A form called an appellant's notice should be completed and lodged at court, usually within 21 days of the mortgage possession order being made. (Sometimes the court may allow more time for this to be done.) A fee must also be paid unless the appellant is exempt from paying court fees.

The appellant’s notice sets out the grounds for the appeal and also states whether or not permission is needed. (If permission to appeal has not already been given it will be needed.) In many mortgage cases - where an eviction may be imminent - the appellant’s notice is filed almost immediately after the original hearing. A defendant borrower representing themselves may be excused some of the usual procedural requirements.

The court will often take a very practical approach to appeals against mortgage repossession decisions and the appeals can be heard at very short notice.

The Format of an Appeal Hearing

An appeal hearing should not generally be a re-hearing of the original application – unless the appeal court decides that justice requires this. It should be an examination of the process by which the District Judge reached their decision. This allows the Circuit Judge to decide whether the District Judge’s decision was reasonable or whether it was clearly wrong as a matter of law or fact. The appeal court should only really consider the evidence and circumstances which were put before the District Judge but has the power to take new evidence into account.

Circuit Judges often take an informal approach to appeals against mortgage repossession decisions. Some may treat the appeal as a re-hearing and overturn the District Judge's decision even if it was not “wrong”. This is an indication of the pragmatic approach taken towards mortgage repossession cases – with judges doing their utmost to keep borrowers in their homes. Some Circuit Judges may consider the substance of an appeal before deciding whether to give permission to appeal. Therefore, even if the appeal is unsuccessful, the borrower will have been given a full hearing by a senior judge.

It should, however, be noted that District Judges have very wide powers when hearing a mortgage repossession case. Therefore, it can be difficult to show that a judge was in fact “wrong” to reach a particular decision – even if another judge would not have made the same order.