Lenders’ solicitors come in all shapes and sizes. Some will be small specialist units within a law firm whilst others may be more like a call centre operated by people with varying degrees of legal expertise. Almost any firm doing repossession work will be dealing with very high numbers of cases. The advantage, from the borrower’s point of view, is that it keeps down the costs that they will have to pay.
What Happens Once Solicitors are InvolvedOnce a mortgage account has been passed to the solicitors it is likely that they will send the borrower a letter. This may be a relatively friendly letter inviting the borrower to make proposals to clear the arrears. The solicitors might also attempt to make contact by telephone. If there is no reply from the borrower, the solicitors will send a “letter before action” – effectively a warning that if the arrears are not paid within a set period, often 7 days, a court case will be started. Whilst this may sound fairly civilised it is worth bearing in mind that the borrower may be incurring a charge for each attempt at contact. However, some solicitors will send the borrower a letter before action as soon as they receive the file from the lender.
Strictly speaking, once the file has been passed to the solicitors all correspondence with the borrower should take place through the solicitors. However, in repossession cases it is usual for the borrower to continue discussing the matter with the lender until the very last minute – literally.
Last Minute Negotiations and PaymentsIt is highly likely that both the lender and their solicitors will be huge companies and that the borrower may end up communicating with a number of different people during the repossession process. At the court hearing the lender will almost certainly be represented by a third party who will conduct the case based on what they are told by the lender’s solicitors. This means that there is a long chain of command in effect and it can take some time for information to make its way from one end to the other.
In court cases it is common for payments to be made or agreements reached just before the case is due to be heard. There is a danger that the information will not get to the lender’s representative in time for it to be relayed to the judge. Whilst not fatal – the lender is unlikely to enforce an order they did not want – this is clearly a situation to be avoided if possible.
Three ways to avoid the wrong order being made:
- Borrowers should try not to leave it until minutes before the hearing to make an important payment or reach an agreement. If a payment to clear the arrears is made at the last minute – get proof that it has been made. This may lead a judge to adjourn the case indefinitely even if the lender’s representative thinks there are still arrears.
- Where an agreement is reached directly with the lender, after the file has been passed to their solicitors, the borrower should put it in writing and send copies to both the lender and the solicitors. The borrower should encourage the lender or their solicitors to provide a written confirmation of the agreement if one is not forthcoming.
- Go to the hearing! It is your home that is at risk! Whilst a borrower may be sure that they have an agreement with the lender it is still up to the judge whether or not he makes an order in those terms. Just because the lender asks for a suspended possession order it does not mean that the judge has to grant it. This may seem obvious but a very high proportion of borrowers do not attend the court hearing.
What to do if the Lender’s Solicitors Won’t ListenSolicitors are supposed to do what the lender tells them to. However, there are some solicitors who give the impression that it is they who call the shots. If a borrower feels like the solicitors are not listening to their proposals then it is always worth trying to talk to the lender directly. The lender may refuse to talk to the borrower and send them back to the solicitors, but at least the borrower will have done everything they can to resolve the matter. It may play in the borrower’s favour when the judge considers the case if he can provide evidence that he tried to negotiate and met with obstruction from both the lender and their solicitors.
Just because the mortgage is now being dealt with by solicitors, it does not mean that it is too late to reach an agreement before the case gets to court.