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The Defence Form in Mortgage Repossession Cases

By: Louise Smith, barrister - Updated: 9 Jun 2015 | comments*Discuss
 
Mortgage Repossession Defence Form

When a mortgage repossession case is started the court sends the defendant borrower a claim pack. This will include many of the papers which the mortgage lender will rely on. The claim pack will include:

  • the Claim Form, which gives the names of the parties and a brief description of the case;
  • the Particulars of Claim which will give more details about the specific case. This may have other documents attached to it - such as the terms and conditions of the mortgage and a statement of the account;
  • a Defence Form which is specially designed to be used in relation to straightforward mortgage repossession cases.
The defendant will also be sent some brief notes which provide background and advice on mortgage repossession proceedings.

The Use of the Defence Form in Mortgage Repossession Cases

There is generally no requirement for a defendant to a mortgage repossession case to fill in a defence form. Genuine defences to mortgage repossession claims are rare and the judge hearing a repossession case will usually allow the defendant to explain their position during the hearing. However, by completing the defence form a borrower will have the opportunity to set out most of the information which is relevant to the case.

Completing a Mortgage Repossession Defence Form

The first part of the defence form contains the defendant’s personal details as well as the name and number of the case. The defendant borrower then has the opportunity to state whether or not they agree with the facts as set out by the claimant mortgage lender. This information may help the judge decide whether there is likely to be a defence to the claim or whether the mortgage lender should provide more information in order to prove their case.

For mortgages which are regulated by the Consumer Credit Act the defendant can also state in questions 5 and 6 whether they want the court to examine the fairness of the mortgage agreement or to consider making an order extending the term of the agreement.

Questions 7 to 10 of the defence form relate to arrears. In this part the defendant can say whether or not they agree with the arrears figure given by the mortgage lender. The defendant may also put forward proposals to pay a regular amount towards the arrears in addition to the usual monthly instalment.

Questions 11 to 25 cover the personal and financial circumstances of the borrower. By providing details of all income and expenditure the borrower helps the judge decide whether it is appropriate to make a suspended possession order. The information provided in this part may also give an indication of whether other income – such as additional state benefits or a partner’s salary – may be available to the borrower.

The final section of the form allows the defendant to state whether they would have any alternative accommodation available to them if evicted and to explain why they got into arrears with their mortgage. This last part may help a judge decide what sort of order to make. It may be used, amongst other things, to explain:

  • that the borrower got into difficulties with the mortgage through no fault of their own;
  • what steps the borrower has taken to address the arrears;
  • that the borrower’s circumstances have changed since the arrears built up, meaning that they are more likely to be able to reduce the arrears going forward;
  • that a borrower is selling (or re-mortgaging) the property and needs more time to complete;
  • that the borrower’s personal circumstances are such – for example due to ill health or disability – that a possession order would cause them particular hardship.
It is debatable whether this last point is technically relevant to the exercise of a judge’s powers in mortgage repossession cases. However, if a judge believes that a borrower would suffer unusually due to a possession order they may give that borrower more time than they would in other cases.

If the defendant borrower completes the defence form a copy will usually be sent to the claimant lender as well as the judge.

Cases Where a Defendant has a Genuine Defence to a Repossession Claim

In the rare cases where a borrower has a genuine defence to a mortgage repossession case the standard defence form supplied with the papers is unlikely to be sufficient for them to set out their defence. Unless they have already received independent legal advice and / or put in a full defence the judge who hears the case is likely to adjourn it to another day to allow the defendant to prepare an adequate defence.

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