A court Notice of Eviction for the repossession of your property would seem like the end of the fight to remain in your home. All hope may not be lost as you still have the option to appear before a judge to challenge the home repossession notice of eviction order. In this article, I offer some ideas on the process and what to expect. Before anything else, I wish to make it clear that I am not providing a legal service of any kind. You are following this article at your own risk as I cannot be held liable for whatever outcome is however and whenever suffered by whomever in whichever context as a result of following this article. With that disclaimer, we can begin.
Notice of Eviction Letter
The court is helpful in specifying what actions you can take on receipt of the Notice of Eviction letter. You can stop your home from being repossessed by arranging to pay off any arrears, which may not be immediately possible in your circumstance. The alternative, which is the subject of this article, is to apply to the court to suspend the notice of eviction (possession) order. You apply using Form N244 (Application Notice) but you have to move quickly. This form may have been included with the Notice of Eviction letter. If not, you can either obtain it from the court or download it at http://www.hmcourts-service.gov.uk/HMCSCourtFinder/FormFinder.do: type in N244 in the Form Number/Leaflet Number field and press Find Form. There are two N244 forms. For our purpose, you need the first N244 and not N244(CC) which is the Commercial Court version. While at the HM Courts website, you may want to download Form EX160A (Court fees - Do I have to pay them?) that you can use to claim any rebates you may be entitled when filing the Form N244 application.
Preparing to Fill Out Form N244
Form N244 is, thankfully, only a couple of pages. The structure and suggested responses are:
|On the top right of the form, you are asked to provide:|
|Name of Court||See top right of Notice of Eviction letter|
|Claim No||See top right of Notice of Eviction letter|
|Warrant no. (if applicable)||See top right of Notice of Eviction letter|
|Claimant’s name (including ref.)||Your Mortgage Lender's Name. See Contact box of Notice of Eviction letter for reference.|
|Defendant’s name (including ref.)||Your Full Name|
|Following on, we have:|
|1. What is your name or, if you are a solicitor, the name of your firm?||Your Full Name|
|2. Are you a||Tick ‘Defendant’ box|
|3. What order are you asking the court to make and why?||Suspension of eviction order|
|4. Have you attached a draft of the order you are applying for?||Tick ‘No’ box|
|5. How do you want to have this application dealt with?||Tick ‘At a hearing’ box|
|6. How long do you think the hearing will last?||15 minutes|
|6. Is this time estimate agreed by all parties?||Tick ‘No’ box|
|7. Give details of any fixed trial date or period||Not Applicable|
|8. What level of Judge does your hearing need?||County Court Judge|
|9. Who should be served with this application?||Both Parties|
|10. What information will you be relying on, in support of your application?||Tick ‘the evidence set out in the box below’ box. Then in the space immediately below write: 'please see attached'.|
|10. Statement of Truth||Sign and date and provide your name|
|11.Signature and address details||Sign and date and provide your address and email details|
Two common grounds for launching a home repossession court eviction order challenge are: (1) to ask the court to compel the mortgage company to accept your (reasonable) mortgage repayment proposal and; (2) to ask the court for permission to sell the property yourself, which will also buy you some time to organise yourself. If you are not able to offer any reasonable payment arrangement to clear the arrears and also maintain future mortgage repayment agreement, then the grounds for challenge will likely be permission for a private sale. You have to be clear about your position and intentions as these are what you will provide as your defence in section 10 of Form N244.
If you are making a mortgage repayment proposal, you should attach your income and expenditure statement to backup section 10 of Form N244. A sample income and expenditure document can be found in the member's area of this site (you must be logged in to access the member's area). In the case of a private sale, you should place the property on the market and obtain estimated selling price from at least two estate agents and attach that as your supporting information to Form N244.
Once completed, you should have three copies of the form (one for the court, one for the other party and one for yourself) You should then fax, post or, preferably, take the form to the court where the counter staff will process it, and stamp your copy, upon payment of a fee. This fee, or a part of it, may be waived if you are in receipt of state benefits or do not earn enough. You will be required to submit form EX160A when you wish to claim any fee concessions.
Notice of Hearing Application
When a hearing date has been fixed, a Notice of Hearing Application letter will be sent to the address you provided in section 11 of Form N244 informing you of the date and time you should attend. The date can be anytime up to the eviction day. Therefore, it might be a good idea to check with the court if you have not received this notice a couple of days before the eviction date.
A Memo for the Judge
Before the hearing date, you should prepare a memo that you will take with you to give to the judge in person at the hearing, with a copy for yourself and the other party. This memo will tell the judge the reasons your home should not be repossessed. Essentially, it is what you would say in court but may fail to deliver properly. This is your defence. Therefore, it is the most important document you will prepare. Everyone's circumstance is different but a sample memo together with relevant legal precedents is available in the member's area for either scenario of mortgage repayment proposal or private sale.
What Happens at Court
You should allow plenty of time to get to court. On arrival, you should locate the court usher who may be sitting close to the court entrance. Check with the court usher that your case is listed and the courtroom where it will be heard. The legal representative of the other party would probably seek you out to have a pre-hearing discussion. You should firmly but politely decline the request since you should not let them in on your defence before the hearing.
At the Hearing
When the judge is ready to see you, the court usher will call out your case, for example Company X vs. Defendant Y. You are then directed to the courtroom. You will be seen by a county court judge who you should always address as Sir or Madam, as a matter of court etiquette. You should remain civil at all times and avoid unnecessary interruptions. The atmosphere would be fairly informal, with just the judge (in plain clothes), the other party’s lawyer and you.
The judge will turn on the tape recorder and invite the other party to speak first. The lawyer would probably paint you in bad light but that is their job, so you must remain calm. When it is your turn, you should say to the judge ‘Sir/Madam, may I present my submission’ and then take out the memo and hand it over to the judge, with a copy to the other party. The judge will study your defence and will then interact with both parties as necessary before passing judgement. And, touch wood, that eviction order for the repossession of your home is suspended. In all, it should not take longer than 15 minute.
In the worst case scenario that the court did not grant your repossession prayer on this occasion, and you believe that the judgement was unfair, you can lodge an appeal against the judge's decision to a higher court. You should tell the judge that you wish to appeal and that you should be given permission to appeal. If permission is not given, you can still go ahead and appeal. For that you will need form N161 (Appellant’s Notice) which you can get from the court's counter or download from the HM Courts website. This form is a bit more detailed which would indicate that more preparation will be required for the appeal stage.