How to defend a mortgage repossession claim in the County Court

If your mortgage lender has issued possession proceedings against your home, you have rights and you have options. Mortgage repossession is one of the most distressing situations a homeowner can face. But the courts give homeowners real protection in this area, and there are several routes to defending or delaying a possession order.

This guide explains how mortgage possession proceedings work, what grounds exist for defending the claim and how to apply to adjourn or suspend a possession order.

How mortgage repossession proceedings work

When a borrower falls behind on mortgage payments, the lender can issue possession proceedings in the County Court. The procedure is set out in the Civil Procedure Rules, particularly Part 55.

The typical sequence is:

• The lender issues a claim form (Form N5)
• The claim is served on the borrower together with particulars of claim
• The borrower files a defence (Form N11M)
• A short hearing is listed (typically 5 to 10 minutes, often as part of a possession list)
• The court makes one of several possible orders

What the court can do at a possession hearing

Outright possession order

The court orders the borrower to give possession to the lender by a specified date, often 28 days from the order.

Suspended possession order

The court orders possession but suspends the order on terms. Common terms include the borrower paying the current monthly instalments plus an additional amount towards the arrears.

Adjournment

The court adjourns the hearing to a later date, usually to allow time for the borrower to make proposals or for further evidence.

Postponement

The court makes the order but postpones its operation for a defined period.

Dismissal

The court refuses to make a possession order, usually because there is no proper basis for one.

The court's discretionary powers

For most mortgages on residential property, the Administration of Justice Acts 1970 and 1973 give the court a wide discretion to:

• Adjourn the proceedings
• Stay or suspend execution of the order
• Postpone the date for delivery of possession

The court can exercise these powers where it appears that the borrower is likely to be able to pay the arrears within a reasonable period. This power is the foundation of most successful defences.

Grounds for defending the claim

The arrears are not as claimed

The lender's calculation of arrears may be wrong. Check the statement carefully. Errors include:

• Charges that should not be included
• Payments that have not been credited
• Interest calculations that are wrong
• Insurance products that should not have been added

The Pre-Action Protocol has not been followed

Lenders must follow the Pre-Action Protocol for Possession Claims Based on Mortgage Arrears. The protocol requires the lender to:

• Take reasonable steps to discuss alternatives to possession
• Provide written information about the arrears and remedies
• Consider any reasonable proposal from the borrower
• Give specific information about the impending claim

Where the protocol has not been followed, the court can adjourn the proceedings or, in serious cases, dismiss the claim.

Realistic proposals for payment

Most defences are based not on disputing the debt but on proposing a realistic plan to pay it. A proposal that the court considers realistic can lead to a suspended order rather than an outright order.

Equity in the property

Where the borrower has significant equity and could sell the property privately for more than the lender would obtain by possession, the court may be sympathetic to allowing time for sale.

Mis-selling

In some cases, the mortgage product was mis-sold or interest provisions are unfair. This is a complex area that may require specialist advice.

The "reasonable period" question

The court can suspend possession where the borrower is "likely to be able" to pay the arrears within a reasonable period. The leading case (Cheltenham & Gloucester v Norgan) suggested that the remaining mortgage term itself can be a "reasonable period" in suitable cases. In practice, the court will look at what is achievable given the income of the borrower.

A typical suspended order requires the borrower to pay:

• The current monthly instalment
• An additional sum towards the arrears each month

The additional sum is calculated to clear the arrears over a reasonable period.

What evidence to bring

Income and outgoings

Detailed records of income (payslips, benefit award letters, tax returns) and essential outgoings (council tax, utilities, food, transport, childcare).

Bank statements

Recent bank statements showing the pattern of payments and the current position.

Correspondence with the lender

Any letters, emails or notes of telephone calls with the lender, particularly any that show attempts to negotiate or proposals that were refused.

Evidence of any change of circumstances

If the cause of the arrears has been resolved (return to work after illness, new employment, end of a period of childcare), evidence of this is helpful.

Property valuation

Where the equity position is relevant, a recent valuation or estate agent's assessment.

How the hearing usually runs

Most mortgage possession hearings are listed in lists with many cases. Each case gets a short slot (often 5 to 15 minutes) unless complex issues require more time.

The hearing usually involves:

• The lender's representative outlining the arrears and the claim
• The borrower (or representative) explaining the position and any proposals
• Any questions from the judge
• A decision

Borrowers are sometimes nervous about speaking. The judge will allow you to make your case, but you need to be clear about what you are asking for.

Applying to suspend or adjourn

If you have a possession order against you but circumstances have changed, you can apply to:

• Suspend the order
• Vary the terms of suspension
• Adjourn the date for possession

The application is made on Form N244 with a witness statement explaining the change of circumstances and what you propose. The court fee depends on the application type.

If a warrant of possession has been issued

If the lender has applied for a warrant of possession (which is the document the bailiff uses to enforce the order), you can apply to suspend the warrant. This is done urgently on Form N244.

The application can be made up until just before the bailiff is due to attend. Courts will deal with urgent suspension applications quickly, sometimes the same day or the next day. But you should make the application as soon as you know the warrant date.

What does not usually work

Ignoring the proceedings

If you do not respond, the court will usually make a possession order without hearing from you.

Disputes about the legitimacy of the mortgage

Arguments that the mortgage is somehow invalid, or that the lender has no right to enforce, almost never succeed. They usually waste the court's time.

Unrealistic proposals

Offering to pay £20 a month against substantial arrears, with no evidence of capacity to pay even that, will be rejected.

Delay tactics

Repeated adjournments without genuine progress are not granted indefinitely. The court will eventually make an order.

Specialist support

Several organisations can help with mortgage repossession:

• StepChange (free debt advice)
• Citizens Advice (free general advice)
• Shelter (housing advice)
• The local Housing Possession Court Duty Scheme (free same-day advice at court)

The Duty Scheme is available at most County Courts. A duty solicitor or adviser is at court on possession days and can speak to you immediately before your hearing. This is free and can make a significant difference.

When to take legal advice from a barrister

For more complex cases (disputed arrears, mis-selling arguments, large equity in dispute), specialist barrister advice may be worthwhile. For most straightforward possession defences, the Duty Scheme or a local advice service will be enough.

Where you decide barrister representation is appropriate, a direct access barrister can attend the hearing, prepare your evidence and advocate for a suspended order or adjournment.

Speak to a direct access barrister about your case

If anything in this guide matches your situation, we can match you with a specialist barrister who handles cases like yours every week. The initial enquiry is free and you receive a clear fixed-fee quote before any work begins. Tell us about your case and we will be in touch the same working day.