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Site updated:

21 March 2010

Money management - In England

Your mortgage lender takes you to court – how to prepare for the court hearing

This information applies to England and Wales

About this page

If you're in arrears with your mortgage, your mortgage lender might start court action. This is called possession action.

This page tells you how to prepare for a court hearing with your mortgage lender.

It tells you:

what you should do before the hearing
what information you may need to take with you
who you can take with you to the hearing
what you should do when you get to the court
what happens when the case is called
what the hearing will be like.

What this page doesn't tell you is what kind of decisions the court can make and what effect these can have on the money you owe on your mortgage and on your home.

For information about these things, see What happens when your mortgage lender takes you to court and Eviction for mortgage arrears.

For more information about how to deal with your mortgage lender if you're in mortgage arrears, see Dealing with your mortgage lender.

Notice of the court hearing

If your lender starts court action, you will get a claim for possession of property from the county court. This will give you details about a court hearing and full details about the case against you.

For more information about the claim form and how to fill in a defence against the claim, see What happens when your mortgage lender takes you to court.

As well as the claim for possession from the county court, you should also get a notice from your lender saying that court action has been started. The notice won't have your name on it and will be addressed to 'the occupiers'.

You’ll receive between four to eight weeks notice of the hearing from the court, so there’s still time to try and come to an agreement with your lender. It is essential that you attend the hearing even if the lender tells you that you don’t need to. If you don’t go, the court might grant an outright possession order which means you could be evicted from your home.

For more information about outright possession orders, see Eviction for mortgage arrears.

Before the hearing

Before you go to the hearing, make sure you find out where the court is and leave yourself plenty of time to get there.

If you have any special needs, it may help to visit or phone the court beforehand to find out if and how they can help you. If you need the court to provide an interpreter to come into the hearing with you, check whether they offer this service.

Take time to prepare yourself before the hearing and think about the information the court might need. This could include:

the defence form in if you haven’t already sent this in
a financial statement. This has information about money you have coming in and going out of your household. You can use it to prove you can afford any offer you make to repay your arrears
any letters between you and the lender showing how you've tried to negotiate payment of your mortgage arrears
if you're selling your property to pay off the arrears, your estate agent’s details
proof of any payments you've made since the claim for possession of property was issued
proof of any claims you’ve made for state benefits or tax credits which you're still waiting to hear about
written confirmation of any lump sum payments you're waiting for such as money you're owed in a will or for work that you've done for someone
proof of any payments under a mortgage payment protection insurance policy which you are due.

You may find it helpful to note down the things you want to say to the judge when you get to court.

For more information about payment protection insurance policies, see Payment Protection Insurance in Credit and debt fact sheets.

For more information about negotiating with your mortgage lender to pay off your arrears, see Dealing with your mortgage lender.

For more information about state benefits and tax credits, see Benefits.

What happens when you get to court

The claim for possession of property will give you a time for the court hearing. You should make sure you arrive before this time.

However, once you get to court, delays can occur and you may have to wait a long time before your case is called.

When you arrive at the court, find the waiting room and tell the usher that you are there. The usher will tell you where to go and what to do.

Your mortgage lender will usually send a solicitor along to represent them at the hearing. The solicitor may approach you in the waiting room to try and agree an arrangement for you to repay the arrears.

It's never too late to try and come to an agreement with your lender, even in the waiting room. But don’t be tempted to make an offer that you can’t afford. If possible, try to get advice before you agree to anything. If in doubt, you should wait until the hearing where the judge will decide how much you can afford to repay.

Who can you take into the hearing

You can go to the hearing alone or you may feel you would like some support. This could be:

someone you have a joint mortgage with. If you have a joint mortgage, both of you should try to go to the hearing. If you have children, try to arrange for someone to look after them while you attend
your adviser, if you have sought advice from an advice agency. They may be able to go to the hearing with you and present your case. You are more likely to avoid losing your home if you take an adviser or solicitor in with you
an adviser from the Duty Representation Scheme at your local county court. Some courts have schemes staffed by advisers there to help you. In England, go to nhas.org.uk to find out whether your local court has a scheme, or the usher will tell you if one is available. An adviser will often be able to come into the hearing with you and help you present your case
a witness, if you need one
if you don't have an adviser, you can take a friend into the hearing with you. However, if you want them to speak at the hearing you'll have to ask the judge for permission.

If you want help to defend a mortgage arrears case, you can get free legal advice, for example, from a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

When your case is called

When your case is called, the usher will tell you where to go and what to do.

Most possession hearings are held in private in the judge’s office. This is known as ‘chambers’. The judge does not usually wear robes or a wig.

If the court case is likely to be complicated, a more senior judge may deal with it in a courtroom, but this will still be in private.

At the hearing

The judge will carry out the hearing in the way they think will be fair to both sides.

If you don't have a legal adviser with you, the judge will usually give you help with how to handle the procedure of the hearing and the kind of evidence you can give.

Your mortgage lender or the person acting for them usually speaks first. You may find it helpful to take notes of anything they say that you disagree with.

The judge will want to be sure that both sides have followed the Mortgage Arrears Pre-action Protocol. These are procedures you and your mortgage lender are expected to follow before the case comes to court.

For more information about these procedures, see What happens when your mortgage lender takes you to court.

The judge will also want to be sure that granting your mortgage lender a possession order, which could lead to you being evicted from your home, is the last resort.

If there are no complicated issues of law to decide, the judge will usually make a decision there and then, providing they have enough information before the hearing. The decision the judge makes is called a judgment.

If your case is more complicated, the judge may not be able to make an immediate decision. In this situation, the judge may put the case on hold (adjourn the case) and give directions about what will happen next. The court will confirm these directions in writing later.

For more information about the decisions a judge can make at a mortgage arrears hearing, see What happens when your mortgage lender takes you to court.