Recalling the decree

If the borrower or an entitled resident did not appear at the court hearing to defend the action and decree for possession, or another remedy, was granted in favour of the lender then decree can be recalled by lodging a Minute of Recall in court. [1]  The Minute of Recall is on Form 11F. [2] Decrees can be recalled up the moment of eviction and can only be recalled once by each entitled party. [3]

The sheriff clerk will fix a hearing for recall using Form 11F. The party seeking to recall the decree must serve copies of Form 11F including details of the date, time and place of hearing to all parties. This must be done no later than 7 days before the date of the hearing. [4]

At the hearing for recall if the party who is seeking to recall the decree is in attendance then the sheriff will recall the decree. This takes the court action back to the beginning.

If the party seeking recall is not in attendance then the sheriff will order them to appear before the court or be represented. This is done by serving Form 11G [5] on the party who wishes to recall the decree along with an order requesting their appearance at court. Another court hearing will be set 14 days after the forms have been served.

At the hearing the sheriff will investigate whether the party seeking the recall of the decree wishes to proceed with their application. If they do not attend this hearing then it is likely that the sheriff will grant decree against them and the lender will be granted one of the remedies available to them on default under the mortgage agreement, such as repossession.