Possible defences : how can I argue against repossession?
If your lender has started court proceedings to repossess your home, you might still be able to keep your home if you can show the court that you have a legal defence to the eviction.
Remember: you should talk to an adviser as soon as you can if you’re facing court proceedings.
What is a defence?
A defence is a legal reason why you should not be evicted. You might have a defence if:
- you don’t agree that you owe as much as the lender says
- you have repaid the arrears before the hearing
- the court papers are incorrect or incomplete
- the lender can’t prove why you should be evicted
- you took out your mortgage or secured loan based on bad advice.
If you don’t agree with the amount of arrears
If you do not agree with how much the lender says you owe, you should make sure you tell the court.
Show proof of the payments you have made, such as your bank statements or paying-in slips. Your lender should also provide details of payments they claim you have missed.
The judge may adjourn (postpone) the case and set a new hearing date. This allows time for you and your lender to prove the amount of arrears.
If your case is adjourned, you can continue to negotiate with your lender and make payments to reduce the arrears before the case comes back to court.
If you can pay off the arrears before the court hearing
Tell the court if your circumstances have improved recently. Show the judge any evidence of this. For example if you have:
- found a new job
- borrowed a lump sum from family or friends
- inherited some money
- given up running a car or taken in a lodger to improve your finances
If all the arrears have been cleared by the time of the court hearing, the case will be dismissed. However, you will still have to pay the lender’s legal costs for bringing the case to court. These will be added to your loan.
Is you think the court papers are incorrect
If the lender doesn’t complete the particulars of claim correctly, the judge may not allow them to present any new information at the hearing. In some circumstances, the claim may be dismissed and the lender will have to reapply to the court to evict you. You should not have to pay their legal costs.
If your lender cannot prove the claim
If the claimant cannot prove the reason why they want to evict you, the court will dismiss their claim for possession. You should not have to pay the claimant’s legal costs.
If you were given bad advice
This defence is called ‘undue influence and misrepresentation’. It can only be used in special circumstances. It concerns the way in which the loan was given to you or the advice you were given when the loan was taken out. For example, it may be that you were given bad advice and, had you had correct advice you wouldn’t have taken the loan out.
If undue influence and misrepresentation can be proved, the case may be dismissed. This is a complex area of law, so get advice if you think it could apply to you.
Do I have another defence?
The court may decide to adjourn a case or delay an eviction if:
- you have an outstanding benefit claim that will clear or significantly reduce the arrears
- you are selling your home and the proceeds from the sale will clear the arrears, but you need more time to complete the sale
- you are arranging to clear the arrears soon
- you are having difficulty finding somewhere else to live
- you can prove that you will have sufficient funds to clear or significantly reduce the arrears in the near future.
How do I tell the court I think I have a defence?
If you think you have a defence, you should say so when you return your defence form after you receive the claim form from the county court. Contact a local advice centre if you need help filling in the defence form. It’s important to give as much information about your defence as you can. If you don’t, the judge can decide not to allow you to give any new information at the hearing.
You should also make sure you go to your court hearing. You have more chance of keeping your home if you attend.
Take someone with you if you don’t feel able to go alone.