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Defending a Mortgage Possession Case

By: Louise Smith, barrister - Updated: 27 Nov 2010 | comments*Discuss
Possession Mortgage Borrower Lender

When a mortgage possession case is started the borrower is sent a response pack containing the Claim Form, the details of the case and a defence form for each defendant. The defence form contains specific questions about the case and there is space to put down any other relevant information.

In many mortgage possession cases both parties will be in agreement about most of the facts. Therefore a completed defence form will often not contain a defence as such. It is more likely to be an opportunity for the borrower to set out the reasons that they fell into arrears and to explain what they propose to do about them.

Whether or not the defence form is completed, it is vital that borrowers do their utmost to attend the hearing – even if they think that they have reached an agreement with the lender. The final decision always rests with the judge and he may want to hear from the borrower before deciding what is best in each case.

The Defence Form in Mortgage Possession Cases

Whilst it is compulsory for defendants to a mortgage possession case to be sent a defence form, there is no real obligation on the defendant to complete it. In the majority of mortgage possession cases no formal defence of any kind will be provided by the defendant. When this happens, judges will still hear what the defendant has to say and, if appropriate, will take it into account when deciding how to deal with the case.

The defence form is an opportunity for the borrower to set out their position in full. It also allows defendants to give details of their income and expenditure. If the defendant proposes to make regular monthly payments, the information in the defence form will help the judge decide whether these proposals are reasonable and/or realistic.

Although mortgage possession hearings are relatively informal it can still be a daunting experience. Therefore setting everything out in writing before the hearing can be a useful exercise for the defendant.

Disputing the Figures

When a mortgage possession case comes to court, the lender must provide up-to-date details about the mortgage account. This is done through a witness statement and an oral update by the lender’s representative and will usually include the monthly payment due, the arrears, the balance outstanding and the most recent payments. Most judges ask the borrower if they agree the figures.

If the figures are not right – speak up. If there is a genuine dispute, about the arrears in particular, many judges will adjourn the case so that one or both parties can provide further evidence about the state of the account.

The Pre-Action Protocol and Mortgage Possession Cases

A new set of rules has been introduced to mortgage cases setting out the behaviour that the court expects of the parties before a mortgage case is started. Although the rules apply to both parties, judges tend to apply them more rigorously to lenders. Amongst other requirements, mortgage lenders must respond in writing to any request by the borrower to change the terms of the mortgage or to clear the arrears by instalments.

If a judge decides that the lender has not complied with the rules he may take this into account when deciding what order to make. Some judges may adjourn the case so that the lender can explain their behaviour or refuse to grant a possession order because the lender has not behaved reasonably towards the borrower.

Genuine Defences to Mortgage Possession Cases

A genuine defence to a mortgage case is rare and would, usually, be something that affected the substance of the mortgage contract itself. For example, if a borrower’s signature on the mortgage deed was forged this would amount to a real defence to the claim.

Where there is a genuine dispute of this type the case is likely to be adjourned and there could ultimately be a full trial. If other, less substantial, issues are raised the judge may adjourn the case to come back on another day for a longer hearing so that a judge can decide the issues which have been raised.

Borrowers should be cautious about disputing more minor issues which might lead to an adjournment but not actually interfere with the lender’s entitlement to a possession order. Unless the judge specifically states otherwise, the costs of every hearing of a mortgage possession case are added to the mortgage account. The longer the case drags on, and the lengthier the hearings, the higher the costs which the borrower may have to pay.

If a possession order is still the likely outcome, the pros and cons of prolonging the case should be carefully considered by the borrower.

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