Preventing court action
If you can't pay your mortgage or any other loan secured on your home, your lender can take legal action to get back the money you owe. This page looks at how you may be able to stop the repossession before your lender takes you to court.
I have mortgage arrears
If you are having problems paying your mortgage, most lenders will only repossess your home as a last resort. They usually prefer to sort out your payment problems in other ways. Your options will probably depend on:
how far behind you are with the payments
the reasons for your arrears (for example, have you fallen ill or lost your job?).
If you have mortgage arrears there are a number of options that might help you clear your arrears and prevent you having problems with your future mortgage payments. The section on
If your lender or their solicitor contacts you about your arrears, don't ignore any letters or phone calls. If you don't respond, your lender is much more likely to take you to court. If you are not sure how to respond, get advice from Shelter Scotland's free housing advice helpline.
I have received a letter from my lender
In most cases, the first thing you will receive if you have mortgage arrears is a letter reminding you that you have missed one or two payments. It will normally ask you to:
confirm how you intend to catch up on the missed payments, or
contact your lender to discuss your financial situation.
If you have received a letter from your lender, contact them to discuss your situation and try to negotiate a repayment arrangement. If you don't want to phone your lender or can't get through to the right person, you can write to them using our sample letter to your lender.
Keep a copy of any correspondence between you and your lender in a safe place. If your lender will not accept a repayment arrangement and you have to go to court, you can show the court that you have made attempts to come to an arrangement with your lender.
If your lender isn't satisfied with your proposals, or your arrears increase, they will probably write to you again, or have their solicitors write to you.
I have received a letter from my lender's solicitor
When solicitors get involved, they will send you a letter giving you seven days to pay off all your arrears or make a proposal for doing so. If they are not satisfied with your response, they can take further action without any additional warning.
If you receive a letter from your lender's solicitor, get in touch with them right away and try to negotiate a payment plan. If they reject your offer, get in touch with your lender and make the proposal to them instead. If they are not happy with your offer, start making the payments you've suggested anyway.
If you can't come to an agreement and the case goes to court, the sheriff is more likely to be sympathetic if you have made an effort to sort things out before legal action was started.
I have received a notice of default
You may still be able to prevent court action if you have received a notice of default. If you can clear your arrears within the one month time limit, no further action will be taken. If this is not possible, contact your lender to see if you can negotiate a repayment arrangement over a longer period of time.
I have received a calling up notice
If you have received a calling up notice, you will have to clear your arrears and the entire remaining outstanding loan within two months to prevent further action being taken. If this is not possible, try to negotiate a repayment arrangement with your lender. They may be willing to allow you to pay off your arrears and pay back the loan over a longer period of time.
What if the case goes to court?
Before a lender can apply to the sheriff court they have to complete the pre-action requirements. This means that they must:
give you clear information about the terms of your lending agreement; such as the amount that you owe including any arrears
must also take reasonable steps to avoid repossession by agreeing with you arrangements for future payments under the lending agreement
not take you to court where you are taking reasonable steps to stick to the lending agreement
give you information on how to get advice on managing your debts and persuade you to contact your local authority.
If you have not been able to stop your lender from taking you to court, this doesn't necessarily mean that you will lose your home. It's still worth trying to negotiate a solution.
Last updated: 16 February 2018