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Appealing Against a Mortgage Repossession Order

By: Louise Smith, barrister - Updated: 23 Mar 2017 | comments*Discuss
 
Appeal Mortgage Repossession Eviction

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.

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Vish - Your Question:
In 2015 I had an accident at home and was unable to work. My step brother came and paid off our mortgage after the eviction. so we got back our home. 16th April 2015. He gave us 1 year plus 3 months to repay him. He also wanted my wife and Ito come off the dreds and put himand his wife on. He saidhe would raise the new mortag e and after 6 months they would come off and transfer it to us. Something was not right. He made us sign 3 different documents under duress. I decided to buy a small business to provide for my retirement and also a future for my daughter. I took our a commercial loan on my house. I then started the process of trying to raise the money to repay my brother. All was approved and everything was going smoothly. I had both separate loan. 1. A residential to repay my brother 140k and a second 67k to repay the commercial loan Both with different companies. At the last minute, a week before payout the lenders for the residential called me and said there was a unilateral and restriction and they couldn't do anything. A few days later the same from the commercial loan.My step brother and his legal team refused to budged on this. They blocked me from raising their money. now the commercial loan took me to court and on the 22nd March my home was repossessed. Can I appeal this. This is NOT MY FAULT. Now we are homeless. The district judge just threw the case out. My step brother and his team has made it impossible. Please somebody help us get back our home.

Our Response:
We're sorry but we cannot help with individual legal advice like this.
HousingRepossessions - 23-Mar-17 @ 2:47 PM
In 2015 I had an accident at home and was unable to work. My step brother came and paid off our mortgage after the eviction. so we got back our home. 16th April 2015. He gave us 1 year plus 3 months to repay him. He also wanted my wife and Ito come off the dreds and put himand his wife on.He saidhe would raise the new mortag e and after 6 months they would come off and transfer it to us. Somethingwas not right . He made us sign 3 different documents under duress. I decided to buy a small business to provide for my retirement and also a future for my daughter.I took our a commercial loan on my house. I then started the process of trying to raise the money to repay my brother. All was approved and everything was going smoothly. I had both separate loan . 1. A residential to repay my brother 140k and a second67k to repay the commercial loan Both with different companies.At the last minute, a week before payout the lenders for the residential called me and said there was a unilateral and restriction and they couldn't do anything.A few days later the same from the commercial loan . My step brother and his legal team refused to budged on this. They blocked me from raising their money. now the commercial loan took me to court and on the 22nd March my home was repossessed. Can I appeal this. This is NOT MY FAULT. Now we are homeless.The district judge just threw the case out.My step brother and his team has made it impossible. Please somebody help us get back our home.
Vish - 23-Mar-17 @ 3:28 AM
My home was repossed and there was 10.000 arears owed i had the orser stop in september and was told by judge if i get into problems to contact lender my first payment was due 1st of October 700.00 unfortunately there was a death in the family i contacted the lender explianed tbis and said i would pay 2 months end of november they said fine but they took me back to court 24 of november and judge give lender possession of the home myself and my family are now homeless is there anythink i can do
Jackie - 6-Dec-16 @ 6:53 PM
Onz - Your Question:
I would like to know if I can appeal against my case of eviction? My arrears was £27,143.00 and I offered to pay the new contractual monthly payment of £805 plus extra 100 to clear my arrears. My proposal of payments was regected. The lender requested me to pay £10,000.00 in a lump sum to clear the arrears. I do not have £10,000.00 to clear the arrears. C&G took me to court and the district judge dimissed my case.

Our Response:
This is not the kind of thing we can advise on here unfortunately. From what you've said, the lender has given you sufficient chance to avoid eviction.You would need to speak with a legal professional.
HousingRepossessions - 7-Oct-16 @ 12:19 PM
I would like to know if i can appeal against my case of eviction? My arrears was £27,143.00 and i offered to pay the new contractual monthly payment of £805 plus extra 100 to clear my arrears. My proposal of payments was regected. The lender requested me to pay £10,000.00in a lump sum to clear the arrears. I do not have£10,000.00 to clear the arrears. C&G took me to court and the district judge dimissed my case.
Onz - 6-Oct-16 @ 8:01 AM
i was wondering what sort of decessions the judges are makeing on mortage arrears propossals that have being put foward by pips that have being rejected by the bank/fund does any body no
dave - 5-Oct-16 @ 1:15 PM
I require information as regards legal representation for appeal against repossession order of premises at 22 key worth close Clapton London e5 0ss and solicitors or defence representation to appear and deal with a case of injustice and non proceeding or inappropriate action
johnson - 17-Feb-16 @ 12:46 PM
I have been requesting original deed + note for two years decided to stop payments. jugde orderd orignals be produce received leter from legal team with statement of truth that orignals had been scaned to to system and then destroyed then judge said they found orignals whitch turned out to be copy of deed no note yet judge made position order after refuseing to let examine the documents
dr bob - 16-Apr-15 @ 10:55 PM
i have a repossesion case against me, thecase letter says my arrears are £3156 but i am paying double payements at the mo so my debt is now down to £2100. my case is next week, would the judge take this in to consideration or would he side with the bank?
MaDc - 17-Jan-14 @ 11:32 AM
I just bought a leasehold property and completed April 15th only to find out it had been repossessed in March from the freeholders and there was a forfeiture of the lease. Who is liable? Everyone has had their money. The vendor, the freeholders got paid arrears out of sales proceeds, the auction house for the finders fees, my solicitor for the conveyancing. I am locked out. The property is not mine even though my name is on the title. Everyone has now taken a step back. I have ZERO information.
Ela - 20-May-11 @ 12:35 PM
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