House repossession laws and what you need to know
If you have received a court summons for your home repossession and have to go to court, you will have already experienced some of the legal language used in home repossession law.
If you are facing home repossession and need to sell your house to pay off arears or to prevent the repossession process then please speak to us first.
This article explains some of the legal terms used and what they mean.
This is the date on which the case will first be heard in the court.
Calling up notice:
This is when you may have missed mortgage or loan payments. A calling up notice may be sent to you if you have missed payments or are behind with payments and your lender is starting repossession proceedings against you.
The judge can decide to continue your case. This means that they will not make a decision on the day, but will fix another date for your case to call at court again. This could be to allow time for 1) you to get debt advice, 2) a cheque to clear, 3) you to make a mortgage payment or to give you time to sell your house.
This is when the judges decision in favour of the defender or the pursuer (such as your mortgage lender or bank). If your lender is asking to be allowed to repossess your home and decree is granted, you will have to move out asap.
Decree of Removing / Ejection:
This will end your legal right to live in your home and will mean that you will have to leave.
The person the legal action is against (such as yourself). In the case of repossession, this is the borrower and the people named on the mortgage/loan.
This is a default notice and is the notice you must be sent before standard repossession procedures can be started if you have a secured loan or second mortgage for less than £25,000. It is different from a notice of default. This is a letter explaining that you have defaulted (missed a payment) on your mortgage or loan.
Diet of Proof / Proof Diet / Proof Hearing:
This is a hearing at which evidence is heard from witnesses before the sheriff makes the final decision.
The judge can dismiss the case. This means that they do not think that there is a case to hear. This could be because: the lender has not followed proper procedures; you have made a repayment arrangement with your lender; the lender asks to stop the legal action.
Ejection Order / Warrant of Ejection:
An ejection order is a court order stating that you have to move out of your home so that your lender can repossess and sell it.
The costs of a court case. If your landlord is taking legal action against you because you have done something wrong, you could be asked to pay their expenses.
If after 14 days of the hearing no-one has appealed against the decision, the extract decree will be issued. The extract decree gives the authority to enforce the decree if the defender does not comply with it. The extract decree states what the court order is and the date that the defender must comply by.
For example: if there is a repayment arrangement; it will say when the first payment must be made; if payment is to be made in a lump sum, it will state the date when the money should be paid; if there is to be an eviction, it will state the date after which the eviction can take place.
This is the first occasion the case is heard in a court of law.
This is the term used in eviction cases. It refers to land and property that cannot be moved, for example a property as opposed to a car or road.
An initial writ is a document letting you know that an application has been made to the county court. You will be sent an initial writ if your lender is applying to the court for the right to repossess your property or for an order to make you leave the property.
Section 24 Notice:
If you have missed payments to your mortgage or secured loan, you may be sent a section 24 notice if your lender is starting repossession proceedings.
Statement of Claim:
The part of the summons where the pursuer states the facts which they are relying on when they take you to court. These form the legal basis of the case.
If your case is stayed, it is stopped to see how things work out. This may be perhaps because you have negociated a plan with your lender or a course of action that you both agree on.
If you find yourself in the position of having your home repossessed then please call us to see how we can help.
Best Wishes, Susan