Eviction for Mortgage Arrears

 The Repossession Process

It is important to remember that before your mortgage lender can repossess your home they will need to take possession action.  This involves going through a court to obtain:

  • a Court Order to repossess the property; and
  • have an order issued by a court providing a Court Bailiff with a warrant to evict you.

A mortgage lender should give you a reasonable chance to pay off the arrears before they begin possession action.  However, mortgages are classified as ‘priority debts’ and should be paid off first.  If possession action is taken the county court will send you a claim for possession of the property.  It will include full details of the case against you and the date of a court hearing.

 

The court hearing

The decision of whether or not to grant your mortgage lender possession of the property will be taken at the court hearing.  It will depend upon if you and your mortgage lender can reach an agreement on how to pay off the arrears.  If you can make an acceptable offer the court will grant a suspend possession order, which means that you may remain in your home for as long as you stick to the agreement

 

However, if the judge decides that you are unable to make an acceptable offer to repay the arrears, they may make an outright possession order. This is an order which says that your lender can take possession of your property and that you will have to leave it by a certain date.

If you haven’t left your home by the date on the outright possession order, your mortgage lender will need to apply to the court for awarrant of possession before you can be evicted. 

There may still be time before the warrant of possession is issued for you to take action which will allow you to stay in your home.  You can ask the court to grant you another order allowing you to remain in your home.  You can:

  • ask the court to set aside the possession order.  This should be done when you have a defence but were unable to attend court to put your case forward.  It is recommended you take legal advice if you believe there is a good reason why the possession order should be set aside.

  • Ask the court to suspend the outright possession order.  If you will be able to repay the arrears you can apply for the order to be suspended.  If you application to have the outright possession order suspended is accepted then a suspended possession order would be made.

  • Appeal against the possession order to a higher court.  There is a 21 day time limit for appeals and they should be made if you think that the law was not applied correctly or the correct procedure was not followed.  You will need professional legal advice if you wish to appeal a possession order and should discuss it with a solicitor.

    What is the eviction process?

    An eviction does not follow a set procedure and there are no rules relating to how they should be carried out.  Bailiffs are simply under an obligation to act reasonably but they can use force if necessary, to enter your home for example.  They are entitled to remove you and anyone else present from your home and use force if necessary.  Court bailiffs are also entitled to break in if you are not at home.  They will change the locks on the property.

    A representative of the lender, sometimes the estate agent appointed to sell the house, will be present at the eviction.  The bailiffs will hand them the new keys.  The police may also be present in order to ensure a breach of the peace does not occur.

    You must hand the property to your lender as a vacant possession which means all property belonging to your must be removed.   Your lender may obtain a court order requiring you to remove your possessions if you refuse to remove them.

     What if the sale of the property is not enough to repay what you owe?

    Any shortfall between the amount you owe and the money from the sale of the property will be your responsibility to pay.  If this is the case you will be sent a bill by your lender for the shortfall.  If you refuse or are unable to pay, then your lender can go to court and obtain an order forcing you to pay.  If the amount is large and you have other debts you may decide that bankruptcy is the best option.  

    Finding somewhere to live after an eviction

    If you have had you house repossessed and been evicted for mortgage arrears, you will find you have been included on the possessions register. This means you may have difficulties taking out another mortgage as most lenders use this register.  Your name will remain on it for six years.

    If you have nowhere else to live you may get help from your local authority because you are homeless. 

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For more information on:

  • What is the eviction process?
  •  What if the sale of the property is not enough to repay what you owe?
  • Finding somewhere to live after an eviction
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