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Talking to a Mortgage Lender's Representative at Court

By: Louise Smith, barrister - Updated: 25 Nov 2010 | comments*Discuss
 
Mortgage Lender Representative Borrower

For many borrowers talking to their mortgage lender's representative at court may be the first time they have a face-to-face conversation about the mortgage. Although some borrowers may feel a certain amount of resentment towards the lender's representative, this could be a useful opportunity to reach an agreement which both the borrower and the lender find acceptable.

Who Will be Representing the Mortgage Lender at Court?

In most mortgage repossession cases the lender will be represented at court by an “agent”. The agent will have been asked to attend the hearing by the solicitors who act for the mortgage lender. The agent will be legally qualified and may be a solicitor, but will almost certainly not be the lawyer who has the day-to-day conduct of the case. Instead they will simply have been instructed by the lender’s solicitor to attend the mortgage repossession hearing to represent the lender.

The lender’s representative will usually have been provided with a bundle of documents which should include all the necessary paperwork relating to the case. The representative should also have been given up-to-date information about the mortgage account, as well as background information about the borrower and any correspondence they may have entered into with the lender.

What is the Role of the Mortgage Lender’s Representative?

The lender’s representative should assist the court by making the judge aware of all relevant information, as well as carrying out the intentions of the mortgage lender. The lender’s representative may also be able to explain to the defendant the legal procedure the court will follow when deciding whether or not to make a possession order.

Mortgage lenders are under a positive duty to consider any reasonable proposals made by a borrower in respect of mortgage arrears. The judge hearing a mortgage repossession case will always be willing to consider any alternative to making an immediate possession order for someone’s home. Therefore the lender’s representative should mention to the judge any proposals or other relevant factors which came up during a pre-hearing conversation.

Reaching an Agreement with the Mortgage Lender’s Representative

Some lenders will have given general instructions allowing their representative to reach an agreement at court if the borrower makes acceptable proposals. However, even if they have no specific remit to reach an agreement, it does not mean that it is a waste of time to discuss the case with them prior to the hearing. Any proposals made by a borrower can be passed on to the lender’s solicitor who may then be able to agree an order that both sides find acceptable.

Talking to the lender’s representative before going into court can be much easier than talking to the judge during the hearing. There may be more time to go over all the information and the discussion can be more relaxed. Sometimes a borrower may not realise that an item of information is relevant when in fact it is – the lender’s representative should make this clear. Bear in mind that legal representatives – like judges – are still human beings. Being antagonistic can make it easier for them to adopt a very robust and hard line approach during the hearing. Conversely a civil and reasoned approach is more likely to elicit a sympathetic and open response from both the lender and the judge.

What a Mortgage Lender’s Representative Cannot Do

Despite all of the above, it must be remembered that a lender’s representative is not there to advise the borrower. They are there to put forward the mortgage lender’s case and to assist the court with the facts and the relevant law. Borrowers who have a particularly complicated or unusual case should always consider obtaining independent legal advice before attending the hearing.

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