If negotiations with your lender have failed and your arrears have increased, the lender will eventually take the case to the County Court and request that a possession order and possibly a money judgement order be granted against you so that the property can be repossessed and the arrears can be recovered.

The lender will initially refer the matter to their own solicitors, who will then send you a calling-in notice/letter requesting repayment of the mortgage and the arrears in full.

Even at this late stage, it may still be possible to negotiate repayment of the arrears. If the lenders accept your offer of payment they may insist that any agreement is subsequently confirmed by the Court at the possession hearing by a suspended possession order. You can try contacting the lender's solicitor or legal department and outline any proposal which you wish the lender to consider. Try to outline your proposal in writing and retain a copy for yourself in case you need to produce this to the court at a later stage.

If all negotiations fail, your lender will apply to the local County Court (or in some cases the High Court) to issue a Possession Summons which will be served upon you by the Court. This document will give you a time and a date for the court hearing.

When you receive the summons you will find attached a form N120 called the ' Particulars of Claim'. This form must contain certain information relating to the lenders claim for possession of your property. At the possession hearing the District Judge will check to ensure that the form has been filled in correctly. If it has not the case may be adjourned until the lenders have submitted the correct information.

When the Summons and Particulars of claim are served on you by the court you will also receive a form N11M. This form is to be completed by you and is to enable you to reply to the lenders claim for possession. You should always fill in this form which is to enable you to give the court your version of the events which have caused you to fall into arrears, details of your current household budget and also to enable you to outline any proposal for repayment of the debt which you wish to put to the Court.

You should, if necessary, seek advice regarding how to complete this form and if possible, return the form to the court within 14 days. Keep a copy of the completed form for your own records.

On the form you can set out details of your household budget and any other debts which you have. You can use the form to demonstrate that the offer you are making to the Court to repay the arrears is reasonable given your particular financial circumstances.

Once the Court has received your reply to the summons, a copy will be sent to the lender's solicitor and a copy will be given to the District Judge so that all parties are made aware of the offer which you wish the Court to consider.

The Possession Hearing
You should always try to attend any court hearings as this is your opportunity to make sure that the Court is aware of your circumstances. We can provide you with the advice you need for attending the court hearing.

Hearings in the County Court for mortgage repossession proceedings are normally presided over by the District Judge and are heard privately in the Judge's chambers, not in open court. The hearing itself will normally be fairly informal. At a hearing the District Judge will be present together with the solicitor representing the lender. The District Judge should first of all check that the Particulars of Claim submitted by the lender ( who is known as the Claimant ) has been correctly filled in and contains all of the required information relating to the mortgage. If any of this documentation is inaccurate the case may be adjourned to a later date to enable the lender's solicitors to submit the correct information to the court.

After the documentation has been checked, the District Judge will normally ask the solicitor representing the lender what payments have been received since the summons was served and what orders the lender is seeking from the Court. Usually, the lender will be asking for two things, a possession order (to enable the lender to take possession of the property) and a money judgement order, requiring the borrower to repay the mortgage in full, together with any arrears.

After the lender's solicitor has put the lender's case the District Judge will ask you if you dispute the lender's claim or the amount of arrears which the lender states you owe on the mortgage. If you are not disputing the lender's claim, the District Judge will then ask you what proposals you intend to make to repay the debt.

If you have already completed the form N11M (the Reply to Summons) both the lender's solicitor and the Judge will already have a copy of the form and will therefore have details of your household's income and expenditure commitments together with any proposals for the repayment of the arrears which you have made. If you have not been able to submit the form to the court prior to the hearing then, at the hearing you can outline details of your household income, your expenditure commitments and other debts and also your proposals for the repayment of the mortgage arrears. When you are at the possession hearing try not to be nervous. Many District Judges understand that a borrower may be confused by Court procedures and they will often try to guide you through the hearing. If you don't understand what information you are being asked to provide or what has been decided by the court don't be afraid to ask the Judge for an explanation. If you have not had an opportunity to complete the form N 11M and return it to the court before the hearing, try to prepare for Court by writing out a summary of your case, your household budget, details of any offers which have been made to the lender and details of the offer which you would like the Court to consider at the hearing. Prepare 3 sets of these documents so one can be given to the Judge and one to the lender's solicitor. This looks professional, and gives a clear indication that you are trying to do your best to resolve the situation you are in and that you have clearly thought things through.

Try to ensure that the offer of payment which you are making to the court will cover

* your monthly mortgage installment
* any additional interest which is being charged on the arrears ( this
amount may already be included in the monthly installment which the
lender is charging. You should check this point with the lender before
any hearing )
and
* repay the arrears over a reasonable period of time
( in some circumstances the remaining term of the mortgage can be
considered as being a reasonable period to repay the arrears)

Always ask the Court staff for assistance if you do not understand what is going on.
At the hearing look smart, be polite and speak slowly and clearly. If you would like someone (for example a friend or the duty advocate) to present your case, you will need the permission of the District Judge. Ask the Court Usher to let the Judge know that you would like someone else to be present or that you want someone to assist you in presenting your case. Be prapered for the Judge to refuse this request and require you to represent yourself.
At the hearing you should address the District Judge as Sir or Madam.
If you don't understand something said by the lender's solicitor ask the Judge for an explanation.
Remember : the Court has wide powers to assist you and, even if the lender has refused your offer of payment, provided you can show that:-

(i) given your financial circumstances, your offer is reasonable, and
(ii) that it will repay the arrears within a reasonable period of time,
the District Judge may accept your the proposal and issue a suspended order for possession.

This will mean that although a possession order has been granted to the lender, provided you make the payments required under the suspended order, the lenders cannot enforce the order against you and you will not be evicted provided you keep to the arrangement. A suspended order will require you to pay your monthly mortgage installment plus an additional amount off the arrears. This amount will be set by the Court and the Judge will consider your offer and ability to pay when making the order. Your lender will be entitled to their legal costs in accordance with your mortgage conditions, and it is unlikely that the Judge can interfere with the costs. The costs will be added to the mortgage debt (i.e. to the balance of your mortgage. Remember, if you do not keep to the terms of a suspended order the lender can then apply to the County Court for a bailiffs warrant to carry out an eviction. If this happens, you MUST make an application to suspend the warrant of possession if you wish to avoid the eviction. The procedure at the hearing of the application to suspend the warrant of possession is similar to the possession hearing. (See below - Applying For The Suspension Of A Warrant To Evict You)

Remember, provided your proposed course of action is reasonable, the Judge has wide powers to grant a suspended possession order or adjourn the case for a short time to allow you to tackle your arrears problem. As a last resort, if you are unable to sustain your mortgage but could sell your home quickly to raise the funds to pay off both the mortgage and the arrears in full, the Court has powers to delay possession to allow you a reasonable amount of time to sell your home. However to do this the court will need some evidence of the value of your home and an estimate of how quickly a sale could realistically be completed.

Applying For The Suspension Of A Warrant To Evict You

You will receive a notice from the Court of an eviction date if:-

the Court did not accept the offer which you made at the possession hearing on the basis that it was not a reasonable proposal and has now granted a possession order in favour of the mortgage lender OR
the court granted a suspended possession order requiring you to make certain payments to your lender, you have failed to make these payments
and as a result your lender has applied for the warrant to have you evicted.

However, even at this very late stage it is still possible to apply for a suspension of the warrant to evict you.

To apply for a suspension of the warrant you will need to go to the County Court and obtain form N244 from the court office You may also have to pay a small fee when you apply to have a warrant suspended unless you are in receipt of certain welfare benefits.

You can use the application form to ask for the eviction to be delayed until the Court has had an opportunity to consider your latest proposals for repaying the debt.

You can attach a letter to the form which outlines your new proposals step by step. Once again it is worth attaching a copy of your household budget so that the court and the lenders are aware of you family's financial circumstances. It is advisable to also include an explanation of why you were unable to keep to the payments ordered by the court in regard to any suspended possession order made.

Hand the completed form in at the Court office as soon as you can, prior to the date of the proposed eviction. The Court officer will check the form and if you have made fresh proposals, the Court may arrange a new hearing at short notice to enable the District Judge to consider your new offer.

This hearing will follow the same procedure as the original possession hearing and you should approach it in the same way making sure that you are well prepared. If your proposals are accepted a new order will be drafted. If they are rejected the Judge will set a date for the eviction to go ahead and you will need to plan ahead in terms of finding alternative accommodation in case your offer is rejected.