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Repossession Stages

By: Louise Smith, barrister - Updated: 16 Oct 2012 | comments*Discuss
 
Repossession mortgage arrears lender

1. Mortgage Account Falls into Arrears

For most mortgages the lender will not take any action until an account is two months in arrears. At that stage they may write to the borrower alerting them to the arrears, send a Default Notice or make a formal written demand that the borrower pay back the full amount owing.

2. Lender Passes the Account to their Solicitors

The borrower may receive a letter from the solicitors telling them they are in arrears and inviting them to make proposals to clear them. Negotiations may take place and a borrower may be asked to provide evidence of their financial circumstances. Alternatively, the lender's solicitors may send a letter warning that court proceedings will be started if the arrears are not cleared within a set period, usually 7 days.

3. Lender's Solicitors ask the Court to Issue a Possession Claim

The solicitors will send documents to the court, including a claim form, which set out the lender's entitlement to repossess the property.

4. The Court Issues the Claim

The court will send the borrower, who now becomes the defendant, a copy of the claim form and any documents sent to the court by the solicitors. The court will inform the borrower of where and when the case will be heard. The borrower will also receive a Defence Form which can be filled in and sent back to the court - this gives the borrower the chance to set out their position.

5. Before the Hearing

At least two weeks before the hearing date the solicitors will send a letter to the property addressed to "The Occupier" giving details of when the case is to be heard. This is intended to protect anyone living in the property, such as a tenant, who would otherwise be unaware that the property could be repossessed. A few days before the hearing the borrower should receive the lender's witness statement, which sets out the details of the case and gives the updated figures on the account.

6. The Hearing

Agreements can sometimes be reached with the lender's representative before the hearing: it is usual to discuss the case with them before seeing the judge. In court, the lender's representative will provide the latest figures and outline the lender's case. The borrower can explain his circumstances to the judge and put forward any proposals or defence. There may be some arguing back and forth, and the judge then makes an order. The borrower should write down what the judge orders.

7. After the Hearing

Within a couple of weeks the borrower should receive a copy of the judge's order from the court. It is vital that any payments which fall due before the order is received are made. If regular payments are to be made the borrower should talk to the lender about setting up a Direct Debit.

8. Breach or Expiry of a Possession Order

The lender is now entitled to enforce the order. They do not need to go back to the judge or give any warning to the borrower. If the property is still occupied the lender's solicitors will apply to the court for a "Warrant of Eviction". The court bailiff will fix a time and date for the eviction. The bailiff will usually send, or hand-deliver, a notice telling the borrower when the eviction is to take place.

9. Applying to Suspend the Warrant

The borrower can apply to the court to stop the eviction and a hearing will be listed at short notice. The borrower can ask the judge for more time to clear the arrears or for a promised sale or re-mortgage to go through. Ideally the borrower will have documentary evidence to support what they are saying. The judge may decide to "suspend the warrant" meaning that the scheduled eviction will not go ahead. Such applications can be made repeatedly but, naturally, a judge will be more sceptical if a borrower keeps coming back to court saying the same thing.

10. Eviction

If all else fails the bailiff will come to the property on the day set for eviction, make sure there is no one inside and change the locks. If the borrower has not yet removed all his belongings the lender will usually allow him back into the property at a later date to retrieve them.

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