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Evidence in Mortgage Repossession Cases

By: Louise Smith, barrister - Updated: 20 Jan 2016 | comments*Discuss
 
Mortgage Repossession Evidence

Mortgage repossession cases are relatively informal. However, the basic legal rules still apply – including those relating to the use of evidence during a hearing. Depending on the type and purpose of the evidence the judge may apply these rules more or less strictly. Generally, judges will apply the rules on evidence more strictly to a mortgage lender, who is legally represented, than to a borrower, who is not.

The Mortgage Lender's Evidence

The main evidential burden in a mortgage repossession case falls on the mortgage lender. According to fundamental rules of English law the claimant must prove their case. Many of the facts in a mortgage repossession case are agreed by both sides. For example, it is rarely denied by the defendant that there is a mortgage agreement between the parties. However, the lender must still provide evidence to support their case.

At a mortgage repossession hearing the mortgage lender will rely on a witness statement which sets out their case and provides up-to-date information about the mortgage account. The witness statement should provide the current figures for the mortgage. However, an oral update of the figures is usually given by the lender’s representative.

The lender must produce various documents to prove that they are entitled to a possession order. The witness statement will have copies of these documents attached to it. By attaching the documents to the witness statement they become exhibits and are formally treated as evidence in the case. The main documents which the lender will have to produce in this way include:

  • An official copy of the Mortgage deed;
  • An official copy of the Land Registry entries for the defendant’s property showing that the lender has a mortgage secured against it;
  • An HRR search in respect of the property to show that nobody has registered a matrimonial or home rights interest against the property;
  • Copies of the notices which the lender must send to the “tenant or occupier” of the property, the local authority housing department and to any other company with a mortgage or charge registered against the property.

The mortgage lender may also have to attach a copy of a statement of account to the witness statement. Depending on the type of mortgage the lender may further be required to exhibit a copy of a default notice or formal letter demanding repayment of the mortgage debt.

The lender’s representative should bring the originals of the documents to the hearing. They should also produce two copies of a Mortgage Arrears Pre-Action Protocol checklist to prove that the lender complied with the requirements of the Protocol before starting the repossession case.

At least two days before the hearing the witness statement should be served on the defendant and sent to the court. However, in practice a judge may not penalise a lender who fails to do this - especially if the witness statement contains nothing controversial.

The Borrower's Evidence in Straightforward Mortgage Repossession Cases

Judges usually allow defendants in mortgage repossession cases to explain their case orally and will seldom require them to produce formal written evidence. Defendants should, however, be prepared to provide the judge with a full account of any relevant circumstances and to show the judge (and the lender’s representative) copies of supporting documents where relevant.

Occasionally a judge may put a defendant on oath. If a person takes the oath anything they say becomes formal evidence. A person who says something which is untrue whilst on oath is committing perjury. A judge may ask a defendant to take the oath if he suspects that they are lying or if the lender's representative insists that the borrower is not telling the truth. However, it is very unusual for defendant borrowers to be required to give evidence on oath during an ordinary mortgage repossession hearing.

Evidence in Contested Mortgage Repossession Cases

The Claimant’s witness statement is often the only formal evidence considered by the judge in a mortgage repossession case. However, if the defendant disputes the lender’s evidence, the lender may be required to file further evidence to prove that their version of events is correct. The defendant may also be required to prepare a witness statement to support what they say. In some contested cases the person who gave the lender’s witness statement could be required to attend court for cross-examination - but this happens very rarely.

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sandy - Your Question:
Ifor trustees have been granted a order of sale on my house will I be able to make a payment plan with them instead of them selling my house

Our Response:
You will need to discuss this with them and should do so as soon as possible.
HousingRepossessions - 21-Jan-16 @ 11:51 AM
Ifor trustees have been granted a order of sale on my house will I be able to make a payment plan with them instead of them selling my house
sandy - 20-Jan-16 @ 4:38 PM
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