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

Defence For Mortgage Arrears Possession ClaimsDefence For Mortgage Arrears Possession Claims

We Help Property Owners By;

Solving Financial Difficulties

Resolving Legal Issues

Maximising Value Via Property Development

Stop Your Repossession of your home

MORTGAGE ARREARS: If you have an urgent financial situation which may lead to the sale or repossession of your property, we will work with you to solve or contain the problem, as this buys you time to consider your options. Our primary goal is to keep you and your family at home. READ MORE.

MAXIMISE YOUR PROPERTY VALUE: If you have a property which is in need of renovation or you want to develop your land or property to maximise profit for sale or refinance, we can help. We have a number of packages available to property owners who would like assistance in obtaining planning permission and/or developing their property. READ MORE.

Which Solution Works For You?

If you have an urgent financial crisis – we provide immediate debt solutions in regards to your property.

If you want to maximise the value of your property or land – we can provide funds for development.

Have you received an eviction order? Are you facing the repossession of your home? We can help.

Meeting Your Financial Commitments

Expired Bridging Loan; If your bridging loan term is about to end or it has already expired, we work on your behalf to liaise with receivers, trustees or administrators to agree terms to prevent a forced sale of your property at auction or via estate agents.