Scotland // Secured Debt // I have been contacted by a Solicitor
Firstly, don’t panic, receiving a letter from a solicitor is serious but this does not mean your home will be repossessed. It does mean that if you have been trying to forget about your arrears situation, it is now time to act.
Your lender will instruct a firm of solicitors to start litigation action on their behalf due to arrears which have accrued on your mortgage account. Although it may be an option, repossession is both the solicitors and your lender’s last resort.
The litigation process is outlined below, however, it is important to engage with any firm of solicitors at the earliest possible stage. The earlier you engage with them, the more options which may be available to you to prevent repossession occurring.
Calling Up Notice
A Calling Up Notice is a legal document which ‘calls up’ the full balance of your mortgage account, it is a pre-cursor to any formal litigation action and essentially allows a two-month period for you to engage with your lender or the firm of solicitors to address the arrears on your mortgage account.
A Calling Up Notice will be sent to all parties named on the mortgage account, the occupier of the mortgaged property, any trustee which may be instructed as well as any second or subsequent charge holders registered on the title of the property. Calling Up Notices can typically be served by Sheriff Officers or Recorded Delivery.
Expiry of the Calling Up Notice
Once two months has passed you will receive a letter confirming the two-month period of Calling Up has expired, it is at this point the solicitors firm will seek their clients (your lenders) instructions on raising a court action. Should there have been no engagement throughout the Calling Up Notice period and the arrears remain outstanding it is likely your lender will opt to take the matter to court.
Raising a Court Action
Once in receipt of instructions to do so, the solicitor will raise a court action. If this is approved by the Court you will receive the court papers by Sheriff Officer or Recorded Delivery.
Appearing in Court
Once your lender has obtained a court hearing date, you will be served with the court papers by a Sheriff Officer and will be afforded a minimum of 21-days notice prior to any court hearing.
Although appearing in court may sound intimidating, it is important that you are represented. You can represent yourself or be represented.
It is your opportunity to present your case to the Sheriff. Your case will be heard along with all other property disputes on that day, so although you may be provided a time to attend, it may be that your case is heard later than that.
The outcome of a hearing completely depends on the information presented to the court and the Sheriff will make a decision based on what they have heard, a case could be;
Continued – A further hearing date set so an update can be provided to the court.
Sisted – Frozen in court with the ability to be recalled at any time.
Dismissed – Completely removed from court process.
Decree Granted – Decree is the court order allowing a property to be repossessed.
Once in receipt of an extract decree your lender can enforce this decree and set a date for repossession. Once they have exhausted all other options they will ask solicitors to instruct Sheriff Officers to serve a charge for removal upon the property. Normally this will set a date for possession 14 days in advance. Once the date has been set and served upon the property, a firm of contractors will be instructed to attend on the day to change the locks.
On the day of ejection both Sheriff Officers and contractors will attend
at the time set out in the charge for removal. At the prescribed time,
the Sheriff Officer will perform his checks and provide the go ahead to
the contractor to start drilling the locks. Once the property is open,
the Sheriff Officer will perform an inventory of all items left in the
property. The locks will then be changed, the Sheriff Officer will then
advise the solicitor that the property is in possession who will in turn
advise the lender. Once all parties have been advised, the conveyancing
of the repossessed property will commence.
Now you are aware of the process in full, you will hopefully be encouraged to engage as early as possible. Throughout the litigation
process your lender or the solicitor instructed may be able to offer several solutions to you to prevent repossession.
Agreeing a Repayment Arrangement
Should you have the affordability to make payments to your mortgage account along with being able to contribute to the arrears an affordable repayment arrangement may be entered into. Any repayment arrangement must be sustainable for you and take into account any repayment arrangements already agreed with other creditors or priority bills. Completing an income and expenditure form is the first step to agreeing a repayment arrangement.
Making an Amendment to Your Mortgage Product
Your lender may be able to make a change to your mortgage to allow a period of reduced payments if your change in circumstances is short term
They may also be able to look at extending the term of your mortgage, however, this would be dependent on your circumstances and affordability.
Please contact your lender to discuss your circumstances and potentially explore these options.
Applying for a Government Support
Government support can come in many forms, from benefits to funding to help keep you in your home.
You can see if you are entitled to any benefits by visiting entitledto.com, this website contains a benefit calculator to see exactly what you are eligible for.
You may also wish to consider applying to the Home Owners’ Support Fund.
It may be that remaining in your home is not the best option for you, there are several solutions for this outcome too;
Selling Your Property
At any time during the litigation process, your lender may agree to hold off on proceeding with further litigation action to allow your property to be put on the open market for sale. There will be costs involved with marketing your property as there would normally be and there is no requirement for you to tell any solicitors marketing your property or any perspective buyers that litigation proceedings are ongoing. You must advise the firm of solicitors acting on your lender’s behalf that your intention is to market your property and provide evidence of marketing, they will require to provide this to your lender to seek their instructions on holding action.
If you decide you cannot afford to stay in your mortgaged property, you can approach the solicitor dealing with the litigation action to obtain the relevant documentation. Regardless of which stage of litigation action they are at, you will be required to sign documentation confirming you wish to voluntary surrender and have left the property prior to signing this documentation.
IMPORTANT– Simply sending your keys back to your lender or the solicitor is NOT sufficient to voluntary surrender in Scotland, you must engage with the solicitor in order to do this otherwise standard litigation action will proceed.
Contact Your Local Council
If you decide you cannot afford to stay in your property, you should contact your local councils to see if they can provide you with alternate accommodation. It is likely the solicitor instructed will have contacted them to advise that someone in their area may be at the risk of becoming homeless.
Regardless of your change in circumstances, there are many options available to you once a solicitor has been instructed on your lender’s behalf, repossession is not a foregone conclusion. However, you must;
- Be willing to engage with the solicitor or your lender at the earliest opportunity.
- Be honest with the solicitor or your lender regarding your circumstances.
- Seek some independent legal advice on the situation, you can obtain this from places like your local Citizens Advice Bureau.
- Address any other arrears situations on other priority bills as a matter of urgency.
- Be honest with yourself as to whether staying in your home is a viable option.
Visit the ‘Help Centre’ to see which other sources of help or advice are available to you.
If you have been contacted by Aberdein Considine, please don’t be afraid to pick up the phone to us. Our Scottish based Debt Recovery team are keen to discuss your circumstances with you and find a resolve for both you and your lender.
You can contact us on 0800 033 4015 or Mortgage.Management@acandco.com
If you have been contacted by another firm of solicitors, please contact them or your lender as a matter of urgency to prevent further litigation action proceeding.