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 a
warrant 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.
If you are facing a repossession you should
consider seriously what to do. Having your home repossessed
will have serious consequences for you and the people who live with
you. There are a
number of options to be considered.
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