You will normally only be able to stop the repossession if you can pay the arrears off in a lump sum or in acceptable instalments. However, there are a few legal defences that could help your case.
Legally valid defences
The case can be thrown out in very rare occasions. This could happen if you can show that your mortgage was mis-sold, or that you entered into the mortgage agreement as a result of an unfair relationship, undue influence or misrepresentation from the lender or mortgage broker. This is quite a complicated area of law so you should seek legal advice if you believe that your mortgage difficulties are a result of one of the above.
Mitigating circumstances to explain your arrears
The court can consider if there are any mitigating circumstances which explain why you've fallen into arrears. The court won't dismiss the money that you owe but may ask the lender to be more flexible if your arrears have been caused by
- redundancy or reduced income
- illness or bereavement
- relationship breakdown
- problems applying or processing benefits
- a dispute over how much is actually owed
- taking bad advice on financial decisions.
Before you go to court, you should speak to a specialist mortgage debt adviser who can give you an idea of what is likely to happen at the court hearing.
Dispute over arrears
If you can't agree how much you owe to your lender, the Master may adjourn the case and set a new hearing date. This gives you and your lender time to get more information to prove the amount of arrears. The lender may have to provide proof that payments have been missed and you will need to show proof that you have made payments. In the meantime, you should continue to negotiate with your lender and make payments to reduce the arrears.
Paying off the debt before the hearing
If all the arrears have been cleared by the time of the court hearing, the case should be dismissed or adjourned generally. However, you may still have to pay your lender's legal costs for bringing the case to court.
Complete or inaccurate affidavit
If your lender doesn't complete the particulars of claim correctly, the judge may not allow them to present any new information at the hearing. In rare circumstances, the claim may be dismissed and the lender will have to reapply to the court to evict you. You should not have to pay their legal costs. However, the court normally allows clerical errors to be amended.
Lender must prove the debt
Your lender needs to be able to prove that you took out the mortgage or secured loan and that you actually owe this money.
Other help for your case
The court may decide to adjourn a case or delay telling you to leave if:
- the arrears built up because of illness or unemployment, but you can now make the payments
- you are waiting for a benefit claim to be paid and the backdated claim will clear or significantly reduce the arrears
- you are selling your home and the proceeds from the sale will clear the arrears, but you need more time to complete the sale, although this won't happen if your home is in negative equity
- you can prove that you will have sufficient funds to clear or significantly reduce the arrears in the near future.
The court may also look at your agreement if the terms were extortionate. This doesn't just look at the amount of interest you were charged but examines all the terms and your personal circumstances when you signed the agreement.