Frequently asked questions

1. Letter before action / solicitor's letter

Why have you sent this letter to me?

If you have a mortgage and have fallen behind with your mortgage repayments, your lender will have asked us to start legal action in order to recover the arrears on your account.

It is possible that you are not a borrower - you may be a tenant at the property for example - and you have received a letter from us. As the litigation process goes on, we are required to write to various parties to advise them that legal action is underway.

If you believe the legal action affects you, you should seek independent legal advice. Click here for information about possible sources of advice.

What are arrears?

Mortgages are loans that are secured against the value of your property. You agreed to make repayments of the loan when taking out the mortgage. If you fail to make the necessary payments, these missed contractual payments accumulate and are called "mortgage arrears".

What does this mean to me?

Once you have fallen into arrears the lender is entitled to take the property into possession and sell it in order to settle the balance due to them. Each lender will have a different policy concerning how quickly they will decide to take legal action in order to recover the amounts you owe - many will issue possession proceedings if the arrears on your account have reached the equivalent of three missed payments.

The accumulation of arrears and/or the repossession of your property may have a negative impact on your credit rating. You may be unable to borrow money in the future.

Can I ask somebody else to speak to you in order to discuss my account?

We can only discuss your personal details with somebody else if you have given us your permission in writing, or during a telephone call where you have passed our security checks and then allow a third party to discuss your account with us. This verbal authority will only be valid for the duration of that call.

You can complete a Letter of Authority form, sign it and send it to us.

What do you mean when you refer to "proposals" to clear the arrears?

Repossession is viewed by most lenders as a last resort. Once you have fallen into arrears lenders are keen to work with you to agree the best way for you to clear the accumulated arrears and to get the mortgage account back on track.

Ideally they would like you to be able to clear the arrears in a single, lump sum payment but they realise that this may not be possible. As an alternative they will seek to agree an arrangement with you to resume your original contractual monthly instalments, plus an extra amount which will go towards clearing the arrears over a "reasonable" period of time.

What is "reasonable" will depend upon the circumstances of each individual's financial position although the lender (and possibly a District Judge) will take into account factors such as your personal circumstances, your ability to pay the proposed amounts and the balance you owe. There are benefits to you in clearing your arrears as quickly as you can less interest and fewer charges to pay but any arrangement should be affordable and sustainable.

Even if you are able to agree an arrangement to pay off your mortgage arrears, the lender is likely to continue with the legal action, seeking to formalise the arrangement under an Order made by the County Court. Repossession would only happen if you fail to make the payments you have promised.

What should I do if I want to make a proposal / arrangement?

You should write to us telling us how much you think you can afford each month. The lender will expect you to pay your regular monthly payment, plus an additional amount towards clearing your arrears.

You may find in helpful to complete an Income and Expenditure form to see exactly what money you have available to pay towards the arrears each month. You should send the Income and Expenditure form to us to support your proposal.

2. Claim for possession

If I've only missed a few payments, how can my lender be entitled to take possession?

You should consult the terms and conditions of your mortgage which will have been provided by your lender when you purchased your property. Failing to make a contractual monthly payment represents a breach of the terms and conditions and gives your lender the power to repossess your home.

Repossession is viewed by most lenders as a last resort.

What is a Claim for Possession?

When a lender wishes to start legal proceedings it is necessary for them to send certain information about your property and your mortgage account to the County Court. Their "Claim for Possession" seeks to demonstrate that you have broken your mortgage terms and conditions, show that arrears have accumulated and establish their right to recover the amounts due from you.

Many lenders appoint a firm of solicitors to submit the Claim for Possession on their behalf and then handle the litigation process for them. That is why you have received a letter, or letters, from us.

The Claim for Possession requests a hearing at your local County Court in front of a District Judge at which the lender's case is presented, normally by a solicitor or an agent acting on the solicitor's behalf.

Once the Claim for Possession is received by the Court, they will notify you and us of the time and date for the hearing.

Which County Court will I have to attend?

The County Court you attend will depend on the area where the "security property" is located. When we refer to the "security property", we mean the property for which the lender has lent you the money (and therefore has a charge over the property allowing them to repossess if you don't maintain your payments).

Each local County Court has its own "jurisdiction" or geographical area for which it is responsible. The security property will be located within a County Court's boundaries / area and, as a consequence, the possession hearing will take place at that Court.

Under some circumstances - when you've bought a second property as an investment or as a buy-to let, for example - this may mean that you have to travel to a Court which is some distance from your home address.

Who else knows that I've got to go to Court?

Once a Court has set a time and date for the possession hearing, that information becomes available to the general public - it is in the "public domain".

Once we have received notification of the possession hearing we are obliged to inform the following people that a Claim for Possession has been issued and a hearing has been set:

- any tenant/occupier (this will be delivered to the property in addition to the letter addressed to you)

- the local housing authority responsible for your area

- any other lenders or creditors who may also have a charge on your property

Do I have to attend the possession hearing?

This is your decision but you should make it after seeking independent advice. Click here for information about possible sources of advice.

I am a tenant, I've paid my rent, but you've written to me telling me that my home may be repossessed. What should I do?

You should seek independent legal advice immediately. Click here for information about possible sources of advice.

I have separated from my spouse / partner. Who is responsible for paying the mortgage and clearing the arrears that have built up on the account?

If you took out your mortgage in joint names, you are both responsible for making sure that the mortgage, plus any accrued arrears, are paid to your lender. It does not matter whether you have moved out of the property or whether your spouse or partner used to pay the mortgage. You are both liable.

You should seek independent legal and financial advice immediately. Click here for information about possible sources of advice.

3. Witness Statement

What is a Witness Statement?

The solicitor acting for the lender will prepare a witness statement ahead of the possession hearing. This provides written evidence to support the lender's case and will be used by the District Judge at the hearing. It is a formal document containing the lender's account of the facts relating to the status of your mortgage account.

A copy of the lender's (or "Claimant's") witness statement will be sent to you and to the Court.

I have made an arrangement with my lender to repay my arrears. Why have you sent me a Witness Statement that doesn't show this?

The Witness Statement contains as much factual information as is available when it is produced. The person representing the lender ("Claimant") at Court will have details of the agreement you have reached with your lender and will present this to the Judge. It will be taken into account by the Judge when reaching his decision and issuing the Court Order.

4. Possession hearing

What is a possession order?

A Court Order refers to the decision made by the District Judge. A possession order requires a borrower to give possession of the property to the lender.

If the Judge decides to give the lender a possession order, does this mean I will lose my house?

Not necessarily. There are different types of possession order, depending on whether or not you are in a position to clear the arrears on your account:

No arrangement to pay agreed with the lender - "Outright Possession Order"
If you have not and cannot enter into an arrangement to pay which will clear the arrears over a reasonable period, the District Judge will usually grant a 28 day Possession Order. This means that the Order becomes "enforceable" 28 days from the date of the Court Order/hearing.

If, after 28 days, you have not come to a payment arrangement, or have not vacated the property, the lender can apply to the Court Bailiff to arrange for an eviction appointment to be set.

The time between the end of the initial 28 day period and the eviction itself will depend on how quickly the lender seeks to enforce the Order and how busy that particular Court Bailiff is.

Arrangement to pay agreed with the lender - "Suspended Possession Order"
If you have agreed an arrangement to pay which is considered affordable and sustainable, the lender will still seek a Possession Order but they "suspend" any action to repossess your home for as long as you keep making the payments set out in the Court Order. This will often be expressed in the following way:

"This order is not to be enforced so long as the defendant pays the claimant the unpaid instalments under the mortgage of £xx,xxx.xx (i.e. the arrears due) by payments set out below in addition to the current instalments under the mortgage

Payment required
£xxx.xx per month, the first instalment being paid on or before [date]"

As long as you maintain your regular payments, plus the extra amount you have promised, the lender is not entitled to repossess your property. If you fail to maintain the payments, the lender is entitled to "enforce" the Order, and apply to the Court Bailiff for an eviction appointment.

If the Judge decides to give the lender possession in 28 days, does this mean I have to move out of my house before this?

Yes, otherwise you will be in breach of the Court Order. If you have not vacated the property the lender may apply for an eviction date and request that a Court Bailiff evicts you.

What is a money judgment?

In addition to obtaining a Possession Order at the possession hearing, many lenders will ask for a Money Judgment against you. This allows the lender to recover all of the money owed under the mortgage, not just the arrears.

In granting a money judgment, the Court is confirming the lender's right to recover the entire balance on the mortgage account. Any money the lender is able to generate as a result of selling your property can be used to reduce the overall amount you owe them.

A money judgment against you may make it difficult to borrow money in the future.

Does a possession hearing always lead to a possession order?

No - there may be other outcomes at the hearing

A District Judge may believe that a case cannot be decided at the possession hearing and that the Court's decision should be delayed, or "adjourned".

The delay may be granted so that more information can be provided, or to allow time to secure funds to clear arrears, or to sell the property, or to clarify the position regarding financial assistance from the government.

When a case is adjourned it is usual for a new date to be set so that the District Judge will be able to make his decision based on the information available at that time.

Sometimes a case may be adjourned "generally with liberty to restore" - in these circumstances the judge makes no final decision about the claim but, unlike a normal adjournment, the case is not automatically listed for another hearing. The case is suspended until either party - the lender or you - asks for it to be re-listed (or "restored") for another hearing. Lenders may ask for another hearing if you have allowed the arrears to build up on your account again.

I don't think I can maintain the payments set out in the Court Order. What can I do?

You should write to us setting out the reasons for you failing to meet the payments required under the Court Order. You should consider an alternative payment proposal which you believe you can maintain. It is important that you continue making some contribution towards clearing the arrears on your account.

Your lender will consider whether they are prepared to accept a lower payment, provided your contractual monthly payment is met, plus a contribution towards your arrears.

The lender is entitled to enforce the suspended possession order if you fail to comply with its terms.

How long does a Court Order remain valid?

A lender can normally enforce a Possession Order for up to six years after it was granted. It is possible for a lender to apply to the Court for the Court’s permission to enforce an Order which is older than six years. If the Court does not give its permission, the lender would have to issue fresh possession proceedings.

The Court’s permission will be granted if there are still arrears on the account and the terms of the original Court Order have not been complied with. Permission may also be granted if the arrears which existed at the time of the Order have been cleared, but there have been subsequent missed payments in respect of the borrowers contractual monthly instalment.

As the terms and conditions of your mortgage account are likely to allow your lender to add the costs of litigation to your account, it may be cheaper for you if they seek to rely on the old, original Court Order, rather than issue fresh possession proceedings.

5. Warrant of Possession

What is a Warrant of Possession?

If you have not vacated the property and in order for an eviction appointment to be set, we need to request a Warrant of Possession from the Court.

In the case of an Outright Possession Order we can only request that the Warrant is issued after the expiry of the period set out in the Court Order (e.g. 28 days, 42 days).

In the case of a Suspended Possession Order, we can request that the Warrant is issued as soon as you miss a payment as set out in the Court Order.

The Court will notify you and us that the Warrant has been issued. It will then send the Warrant to the Court's enforcement or bailiff's section so that a date for the eviction can be set.

A Warrant of Possession will be valid for 12 months.

What is a Bailiff and what does the Bailiff do?

The County Court Bailiff is an "officer" of the Court. In other words, if you are in breach of a Court Order and a lender has requested a Warrant of Possession, the County Court Bailiffs may be called in to help "enforce" the Order and recover the lender's debt.

Once the Warrant of Possession has been passed to the Court's Enforcement or Bailiff's office, the Bailiff will schedule the date and time of the eviction appointment. The period between the lender requesting the Warrant of Possession at the eviction appointment will depend on the Bailiff's diary and when he will be able to conduct the eviction.

The Bailiff will write to you confirming the arrangements for the eviction and will deliver this "notice" to your property.

6. Eviction appointment

Who will be at the eviction?

The Bailiff will attend the eviction appointment - it is the Bailiff who enforces the possession order on behalf of the Court.

We will instruct a locksmith to attend on the eviction date to change the locks, drain down the systems and secure the property on behalf of the lender.

Should I vacate the property before the eviction appointment?

Yes. When we write to you confirming the date and time of the eviction appointment, our letter will instruct you to:

- vacate the property;

- remove all items of furniture, furnishings and personal effects from the property; and

- remove any animals, pets or livestock.

If you vacate the property it is extremely important that you advise your lender of this, making arrangements to hand over your keys, and providing contact details so that they can get in touch with you regarding, for example, any remaining possessions, and proceeds from the sale of the property.

What happens if I haven't removed my belongings or any animals before the eviction appointment?

Any items remaining in the property may be disposed of by the lender or their agents at their discretion, in line with the provisions of your mortgage conditions.

For a short period of time your belongings may be left in the property, or they may be moved to a different location. The lender's agents will advise you about how you may reclaim your possessions and how long you have to do this. If you do not make arrangements for their collection, the agent will arrange for their disposal.

If it is necessary to arrange for specialist animal handlers to attend and remove pets, animals or livestock, the costs will be added to the amount you owe the lender.

7. Possession

Can I get my house back once it has been repossessed?

A lender must give possession of the property back to you if you pay off, or "redeem", all sums due to the lender under the mortgage before the lender exchanges contracts for the sale of the property.

Some lenders may be prepared to "hand back" the property after possession although this would normally occur where you could demonstrate a significant change to your personal circumstances e.g. clearing the arrears in full and proving an income stream which could maintain your mortgage repayments going forward.

8. Property marketed / sold

What happens to the proceeds from the sale of my house?

Once your lender has repossessed your property they will look to market it and sell it for the best price reasonably obtainable, using the proceeds of the sale to get their money back.

If, after settling the amount you owe them, together with the amounts you owe to all those parties/organisations with a charge secured on the property, there is still some money left over (a surplus), this will be sent to you as soon after the sale as possible. You should ensure your lender has contact details for you following eviction.

What is a "mortgage shortfall"

If the property sells for less than you owe the lender, there will still be a balance due to them - the "mortgage shortfall".

The lender may want you to pay back this outstanding debt and can try to recover this from you over a number of years - up to 12 years.

You keep sending me letters but I moved out of the property some time ago

Your lender needs to know your current circumstances and how you can be contacted. They will need to understand your intentions and you should be aware that you are still responsible for the property. Any damage to the property may reduce its value, the amount it may be sold for and therefore your ability to clear the amounts you owe your lender. See the FAQ about Mortgage Shortfall.

9. Interest only and term-expired mortgages

I have an interest only mortgage. What possession action can a lender take?

If you have fallen behind with your (interest only) monthly payments, these will be regarded as payment arrears and your lender can follow exactly the same process with a view to obtaining a possession order.

If your mortgage term has expired and you have not repaid the outstanding balance on your mortgage account in full, your lender may seek a possession order based on your failure to pay the balance due at the end of the term. You would be in breach of your mortgage terms and conditions. Under these circumstances repayment in full would normally be expected as there is no remaining mortgage period over which the outstanding balance could be repaid in instalments.

You should contact your lender to see what options may be available to you. You should also seek independent financial and legal advice. Click here for information about possible sources of advice.

10. Deceased borrowers

One of the borrowers has passed away. Will litigation action commence / continue?

If one of the parties to a mortgage passes away, another party (a borrower or a personal representative) should advise the lender of this immediately. The lender may be prepared to offer some short term concessions to make sure that the payment of the mortgage does not make your circumstances more upsetting than they already are, but they will expect you to address any arrears that have accumulated either before, or after the deceased customer’s death.

Where there is a surviving party to the mortgage they will remain responsible for the payment of the loan, together with the clearance of any arrears that may have accumulated, and possession action may start, or resume, following the process set out in this website.

I am the personal representative of a customer who has passed away. Why have you written to me?

If probate has been granted on the deceased customer’s estate and you have been appointed as their personal representative, you have assumed responsibility for the management of the customer’s property, money and possessions. This will include responsibility for the deceased customer’s mortgage and any arrears that may have arisen.

It is common for possession proceedings to continue, naming a personal representative as a party  to those legal proceedings.

In some instances a lender’s mortgage terms and conditions may stipulate that a mortgage becomes repayable of the death of a party to the mortgage whereas in other cases the lender may be willing to work with the personal representatives to clear the arrears and maintain the mortgage for a period going forward.

You should contact the lender to establish whether they will accept some form of payment plan from you, on behalf of the estate, their intention is to repossess and sell the property, or if they will give you / the estate some time in which to sell the property and settle any amounts due.

You should also seek independent legal advice. Click here for information about possible sources of advice.