Defence For Mortgage Arrears Possession Claims
Legal defence for mortgage arrears possession claims can be complex and stressful. We have listed some of the common defences below though this is not a complete list. Hamilton Paige always urges borrowers to check all mortgage documents for defects, amounts claimed and the lender’s behaviour for violations. If you need help with mortgage arrears or pending court possession proceedings against you, please get in touch for free and complimentary advice.
Check The Mortgage Lenders Conduct & Protocol
The ‘Pre-action Protocol for Possession Claims’ based on Mortgage Arrears sets out procedures that mortgage lenders (and borrowers) should take to ensure that court proceedings are a last resort. A mortgage lender’s failure to comply with the protocols does not provide a defence to a claim for possession but the court can do any of the following:
- Adjourn the proceedings and ask the lender to ensure compliance
- Ask the lender for costs for breaches of protocol
- Override the lender’s contractual right to recover their costs from the borrower if it can be shown the proceedings were brought unreasonably or the costs were unreasonably incurred
- If the reason for the proceedings or the costs are unreasonable, the court can undermine the lender’s contractual rights.
Check For Inaccuracies & Defects In Mortgage Documents
The following may not always be relevant in all cases however the court can take action against the lender if it finds the terms of the mortgage are unfair.
- All mortgages are required to be secured by a properly executed deed usually through a solicitor.
- The terms and conditions are a stand alone document and must be adhered to by the lender.
- There are rules which require mortgage lenders to provide certain information to the borrower before the mortgage agreement is executed.
- If the lender does not have authorisation from the FCA to conduct it’s business, it is likely to mean the lender cannot enforce the mortgage.
- The Consumer Credit Act has set out strict rules for the content of secured loan agreements and the Consumer Rights Act 2015 requires terms in consumer contracts to be fair and transparent. These must be adhered to by the lender.
- Mortgage documents must contain clear provisions about mortgage repayments and also about possession in case of default.
Cost & Payments
The arrears claimed by the lender should always be checked for
- Accuracy (sums)
- Ensuring all recent payments have been added correctly
- Unexplained items
- Claims for costs and arrears charges (open to challenge if they seem high compared to the lender’s loss)
Please note, failure to comply with any regulatory requirements such as the Mortgage Code of Conduct does not provide a defence though the court may adjourn the proceedings or suspend the order.
Do you need help with repossession proceedings? Are you behind on mortgage payments? For a quick and free chat on how we can help you or somebody you know with their mortgage arrears please contact us here.
Learn more on
– Stopping Homeowner Repossession or Eviction
– How to Stop House Repossession & Everything you need to know
– Can You Sell a House Before Repossession?
– Selling Your House When You’re Behind on Your Payments, In Arrears & Facing Repossession
– About Mortgage Repossession
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