If you are a homeowner, you can only be evicted if the court makes an order telling you to leave. This section explains what happens once your lender has applied to the court to evict you.
First steps in legal process
Repossession involves a number of stages, which can take a few weeks or months. Firstly, your lender, your freeholder or their solicitor, should write to you warning you that they are going to start court action. There is an agreed protocol that lists steps that your lender has to follow before taking you to court.
When your lender, freeholder or their solicitor, applies to the court for a possession order, the lender's solicitor will serve you with papers informing you when that a hearing is to take place. This is called a summons. In the summons you are the defendant and your lender is called the plaintiff.
You will get a Notice of Hearing which tells you the date of the hearing in the Chancery Division of the High Court. Your case is usually heard by the Master in his private chambers. You should have at least 21 days' notice of the hearing date. You will receive a form that explains why the lender wants to evict you. This is known as an Affidavit.
You should also receive a Form 10a. This explains, in plain English, what is happening and how to seek assistance. Contact an advice agency as soon as you get a letter from the court.
Your lender must give specific information to the court about the case using the affidavit form. The form should include the following information about each loan:
- who lives in the property
- whether any loan secured by the mortgage is regulated by the Consumer Credit Act and if so the date of the default notice
- details of the arrears which caused the lender to start the repossession
- details of any payments required to be made as a term of the mortgage
- redemption charges if you paid off the loan no more than 14 days after the commencement of the proceedings
- the total amount outstanding if the loan is regulated by the Consumer Credit Act
- the rate of interest when the mortgage started, when arrears first started and when proceedings began
- any steps taken by the lender to recover the mortgage loan
- any known information about the borrower's circumstances including entitlement to benefits
- if there is anyone with a registered interest in the property who should be given notice of the proceedings i.e. spouse with matrimonial home rights or anyone in the property aged over 18
- action the court is being asked to do. For example, give possession or pay total amount owed under the mortgage.
If your lender doesn't provide this information, the court will usually adjourn the case.
Completing the Form of Reply/Memorandum of Appearance
You will also get a Form of Reply, also known as a Memorandum of Appearance with your summons. Either you or your solicitor, if you have one, will need to complete this. You can go to your court hearing, even if you didn't fill in this form. It's really important to go to your hearing so you have a chance to save your home.
The form asks
- for details of any arrangements you have made with your lenders to clear arrears
- for an outline of what you can now offer as part of a settlement
- if you want the court to consider whether the terms of your agreement are extortionate.
You need to give details of your personal circumstances, including
- your income
- your spending
- any other debts
- if you receive support for mortgage interest and if this is paid directly to your lender
On the form, you will have to explain
- why the arrears have built up
- whether you have found alternative accommodation if your lender gets possession
- what difficulties you would experience if you lost your home with short notice.
Keep a copy of your Form of Reply / Memorandum of Appearance. An adviser can help you to fill the form in. The Master will look at both the affidavit and the form of reply before the hearing. Even if you do not return the form of reply, it is important that you attend the hearing.
Preparing for your hearing
Before the hearing you should:
- get advice or see a solicitor
- complete the Form of Reply you received from the court
- negotiate with your lender or freeholder
- try to pay as much as you can off the arrears
- collect together any relevant documents that you think the Master might want to see (for example, pay slips, bank statements or evidence of any lump sum payments due)
- prepare a detailed breakdown of your household income and expenditure
- continue to make regular payments to reduce your arrears
- find out where the court hearing is taking place
- prepare notes of what you want to say at the hearing
- arrange for a friend, adviser or solicitor to come to the hearing to help you.
Remember that you are unlikely to get legal aid to pay for your solicitor.
Asking for more time
If you think you need more time to prepare for the hearing, you must still attend the hearing, but can ask the court to put back the date of the hearing. This is called an adjournment.
The court will need a good reason to agree an adjournment. You might be able to adjourn the hearing if you:
- have been ill and unable to prepare for court
- were on holiday when the summons arrived and you have only had a few days notice of the hearing
- need more time to get advice
- had a change of circumstances which will improve, or even resolve, the situation (for example, you're about to start a new job).
At the court hearing, you should try to agree a realistic repayment arrangement with your lender, If this isn’t possible, you should explain your circumstances to the Master who can make an Order for repayment arrangement after hearing from both sides.
You can continue to negotiate with your lender right up until the date of the court hearing.
Your hearing will be heard in the Chancery Division of the Royal Courts of Justice in Belfast. The Court Service website provides directions to the court and information about public transport links.
Watch what happens at the hearing
We shot a video in the Royal Courts of Justice to give you an idea of what you can expect if you need to go to court because you've fallen behind on your mortgage or secured loan.