Settled 6 months mortgage arears, court order submitted 2 weeks after

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Due to a shortfall in self employed earnings, we fell 6 months behind. I settled in full. Then, 12 days after the money had been taken out of my account, received a Claim for Repossession of property to be heard at the court.

Why has this been passed to the solicitors when I have settled the arrears in full AND will I still have to attend court and what is the likelyhood of repossession. We have never had any blots in our prepayments until the last six months.

-- Graeme Fraser (Sentinel1984@aol.com), November 14, 2003

Answers

You must answer the court summons - there is a reply form enclosed with the summons. You need to state you have paid the whole of the arrears off on such and such a date and you MUST attend the court when a hearing date is fixed.

A Judge cannot make a possession order unless there are arrears on the account - so don't worry on that score. However, what will be a point for argument is whether or not the lender was right to take out possession proceedings and whether or not they can have their costs which will be approx. 500 or even more. There is a time lag between the issue of a summons and its receipt by the defendant, this is usually about 10 days or so but could be less. The summons will have been issued by a solicitor acting for the lender - it is quite possible also that the lender did not receive the money on the day it left your account, so a further 4/5 days delay could be added in here making it unlikely that the lender would be able to stop the summons being issued in time.

I am afraid it is likely you will be landed with costs as usually the mortgage conditions allow these to be added to the mortgage debt. Did you keep the lender informed that you were paying by such and such a date?

There is another avenue open which is for you to contact the lender's solicitors and ask them to withdraw the summons without your attendance - it is likely though that the summons will be adjourned "sine die" (i.e. without a day) which means if you went into arrears within about 15 months (before the summons lapses through time) then they could restore the possession hearing. If you accept this route, make sure that the hearing has been vacated or adjourned - if it has not, then attend it as a priority.

Be prepared for the Judge to take the view that as you had six months arrears, the lender was entitled to apply for a possession order and the summons being correctly issued, they are entitled to costs.

MAKE SURE YOU ATTEND ANY HEARING FIXED in person. The hearings are private and relatively informal (i.e. just you, the judge and the solicitor representing the lender there).

-- David J. Button (davidjohnbutton@supanet.com), November 14, 2003.


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