Guidance. For use in the United Kingdom. Letter regarding mortgage debt or arrears

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1 Guidance For use in the United Kingdom Letter regarding mortgage debt or arrears Contents Purpose of this document What can you do about mortgage arrears? Mortgage rescue schemes Selling your property to pay the arrears Handing back the keys to your mortgage lender Action your lender can take to recover arrears What happens after repossession? Arrears on shared ownership properties Arrears on second mortgages and other secured loans Purpose of this document If you are having difficulties, or know that you will within a relatively short period have difficulties meeting the payments due under your mortgage, you can use this document to help you to explain the problem to your mortgage lender and to outline the steps you will be taking, and the assistance you would like your mortgage lender to provide to help you, to address the problem. You can use this document whether or not there are already arrears that have arisen on your mortgage account. It is better if you tackle any problem, or even any anticipated problem, with your mortgage payments at the earliest opportunity before it becomes unmanageable. This document may be used in conjunction with the document 'Income and expenditure statement'. What can you do about mortgage arrears? If you are in mortgage arrears, your mortgage lender will want you to clear them. If you don't do this, they will take action through the courts to get you evicted from your home (seek possession). This will allow them to sell the property and use the money from the sale to help pay off the debt. 1

2 However, if your lender knows that you are trying your best to stop the debt increasing, they might allow you more time to sort the problem out. Depending on your circumstances, there may be several things you can do, but you must act quickly. You may be able to: Cut down your monthly mortgage costs Make arrangements to pay off your arrears Increase your income Cutting down your monthly mortgage costs You will need to be able to keep up with payments on your current instalments, as well as make payments off the arrears. If your financial difficulties are only short-term, you could think about asking your mortgage lender if they will agree to cut down your monthly mortgage costs for a limited period of time. Before you agree to make any changes to your mortgage, you should ask your lender if there will be any charge for this and how much this will be. If the charge seems very high, you should get advice. Depending on the type of mortgage you have, you may be able to: 1. Reduce your monthly interest payments. Your lender is unlikely to agree to this unless there is equity in your property. Equity is the difference between how much your property is worth and how much is owing on the mortgage. In Northern Ireland you can contact the charity Housing Advice NI. 2. Increase the period of time over which the mortgage is paid. This would mean paying more interest in the long term 3. Suspend repayment of the amount you borrowed (the capital) and make interest-only payments 4. Find a cheaper mortgage deal with another lender. You may have to pay charges for changing your mortgage lender and you will still have to pay off any arrears. The Money Advice Service website has information about switching your mortgage. 5. Pay a lump sum to clear some of the arrears and pay off the rest in monthly instalments over a fixed period of time. You should be careful not to get yourself deeper into debt by doing this. 6. Change your mortgage protection insurance, buildings or contents insurance to a cheaper policy 7. If you own part of your home as part of a shared ownership scheme, ask the local authority or housing association if you can sell back some of your share 8. Reduce the payments on your endowment policy, if you have an endowment mortgage 9. Stop making payments into your endowment policy. You will have to make up these payments at a later date. 2

3 Paying off your arrears You will need to try and come to an agreement with your mortgage lender about how to pay off your arrears. Before you do this, you should first work out how much you can afford to pay. Work out how much money you've got coming in and what your other outgoings are - including other debts. You can use the document 'Income and expenditure statement' for this purpose. You will also need to decide how to pay off the arrears. You may have several options for doing this, including: Paying an extra amount towards the arrears each month on top of your regular monthly payments Arranging to have the arrears added to your capital (capitalising the arrears) and paid back over the remaining period of the mortgage. You could also ask to extend the term of the mortgage in order to keep your monthly payments down, although you will end up paying a much larger amount in total Giving up your endowment policy or selling it off to an investor, if this is permitted under the arrangements you have with your mortgage lender. This will provide you with a lump sum of money that you can use to help pay off your mortgage arrears. However, you should think very carefully before doing this. You will need to find another way to pay off your mortgage loan and you will also need to find alternative life insurance cover. You will also need to find out whether there would be any penalties or other costs involved in bringing your endowment policy to an end. If you are sure that you want to sell your endowment policy, the Association of Policy Market Makers (APMM) can give you advice and help you sell your policy. You can contact the Association on , or look on their website at: APMM. Raising a lump sum to pay off all the arrears in one go. You could do this, for example, by borrowing money. However, you should be careful not to get yourself deeper into debt by doing this. Once you have worked out a way of dealing with your mortgage arrears, you should contact your mortgage lender as soon as possible and make it an offer. It is important that you put a detailed proposal to the lender rather than just ask it to offer you a solution. This is because a lender may not be fully aware of your circumstances or of the range of options available for dealing with your financial problems. You can use this document to write a letter to your mortgage lender, clearly setting out your offer. Your offer should be one which you can realistically keep to, and should be based on how much you can afford to pay. Include a financial statement with your letter, which shows your mortgage lender how you have worked this out. You can use the document 'Income and expenditure statement' for this purpose. If the person you are dealing with at the mortgage company is not being helpful, it's worth trying to deal with someone who has more responsibility, for example, a supervisor or an arrears manager. You should start to make regular payments, however small. Even if your lender doesn't accept the offer, it may help your case if you are taken to court later on. 3

4 If you are not happy with the way your lender deals with your case, you can make a complaint. Find out about your lender's internal complaints procedure. If this doesn't work, you can complain to the Financial Ombudsman Service. For more information about this service, visit FOS. If you haven't been able to agree with your mortgage lender on how to pay off your arrears, they will probably take you to court and try and get possession of your property. If you argue your case in court, the judge (in Scotland, the sheriff) may allow you to stay in your property as long as you keep to an agreement to pay. If you are in this situation, you should get advice. Increasing your income If you are in mortgage arrears, you should see if there are ways you could increase your income to help you deal with these and other debts. You should make sure you're getting all the welfare benefits and tax credits you're entitled to. Some benefits, such as Income Support, income-related Employment and Support Allowance (ESA), Pension Credit or income-based Jobseeker's Allowance, entitle you to an allowance, which will pay some of your mortgage costs. You will need to make up any shortfall. Other benefits that you may be able to claim include: Council Tax or Rates Benefit Benefits for people who are sick or disabled Other ways you may be able to increase your income include: Making a claim on your mortgage protection insurance, if you have any Taking in a lodger. This may have some drawbacks and you may need your mortgage lender's permission. Get advice about this. Moving out of the property and letting it. This may have some drawbacks and you will usually need your mortgage lender's permission. Get advice about this first, and make sure you have somewhere else affordable to live. Mortgage rescue schemes One option you may be considering to help you pay off your mortgage arrears is a mortgage rescue scheme, also known as buy back, sale and rent back or sale and lease back schemes. These are schemes that offer to buy your property and rent it back to you. 4

5 This may look like a good way out of your mortgage problems because it allows you to pay off your debt while being able to stay in your home. However, you need to be very careful about signing up to a mortgage rescue scheme because, in some cases, you could end up paying very high rent or even being evicted. A mortgage rescue scheme may be the right option for you, as long as you check the terms and conditions of the scheme very carefully. You need to understand exactly what you are signing up to, and how this will affect your housing and financial situation in the long-term. There are different types of mortgage rescue schemes. A scheme could be run by: A private company A mortgage company A social landlord, such as a local authority or housing association An individual Things to look out for when you're thinking about signing up to a mortgage rescue scheme include: Whether the scheme offers benefit or debt advice and if so, is it independent or monitored in any way? Who pays for the costs of selling the property? What type of tenancy is being offered? If it's a tenancy that only lasts a certain period of time to start with, can it be renewed after that and when can the landlord take court action to evict you? How are the rents set, including how often will the rent go up and by how much? What are the responsibilities and obligations of both the landlord and tenant? Can shares in the property be bought back if your financial position improves? Are there any insurance or bond arrangements if the scheme ever runs into financial difficulties? You should also bear in mind that if you sell your home but continue to live there and pay rent, you may not be entitled to Housing Benefit/Local Housing Allowance. Private mortgage rescue schemes You should take extra care before signing up to a mortgage rescue scheme run by a private company or individual. Things that you need to know about private mortgage rescue schemes include: They often buy homes below the market rate 5

6 You will probably have an initial tenancy which runs for six or twelve months and, during that time, the landlord might charge you what seems to be a reasonable rent. However, after that, if your tenancy is renewed, you may be charged a much higher rent or one that is not that different from what you would have paid if you were still paying off the mortgage and the arrears The type of tenancy offered may give you little protection from eviction which means that the landlord might be able to evict you quite easily Schemes run by social landlords Some local authorities and housing associations also run mortgage rescue schemes, although there aren't many of them around. They often have strict rules about who can apply, so you may not qualify. These schemes will allow you to remain in your home either as: A tenant. Your home would be sold, usually to a registered social landlord and then rented back to you at a rate which is less than your mortgage repayments. The scheme may give you the right to buy back your property back if your financial situation improves. You should check whether this will be possible. In Scotland, a scheme of this type is available, called the Mortgage to Rent scheme. For more information, visit the Scottish government website. A shared owner. Your home would be sold, usually to a registered social landlord and you would pay part rent and part mortgage. You may be able to increase your share of ownership when you can afford to. You should check whether this will be possible When your property is sold to a social landlord, the money is used to repay your existing mortgage and the arrears. If there is not enough money to cover all of the arrears, you will have to make other arrangements to pay off the difference. To find out more about mortgage rescue schemes run by local authorities and housing associations, ask your local authority. Government-backed mortgage rescue schemes In England, the Government has announced a mortgage rescue scheme to help vulnerable homeowners to stay in their home. You can get more information from the Gov.uk website. In Wales, you should contact your local authority as it is their decision whether or not to help with mortgage rescue. There is no equivalent scheme currently in Northern Ireland. Selling your property to pay the arrears 6

7 If you aren't able to clear your arrears, a court will probably give your lender permission to evict you from your home. Your lender will sell the property. If they don't make enough from the sale to cover the money you owe on your mortgage, you will have to pay the difference. If you can't find any other way of clearing your arrears, it would be better to try and sell the property yourself, rather than wait to get evicted and let your mortgage lender sell it. This is because they are likely to get a lot less for it than you would, leaving you with a debt to pay. Properties which have been taken back from the owner often sell for a lot less. Also, lenders often sell at auctions where sale prices tend to be lower. Selling the property yourself would give you a lump sum that you could use to pay off your mortgage, and which, if you have enough left over, you may also be able to use to pay off other debts. Before you think about selling your property, you will need to: Find somewhere else to live. If you're thinking about applying to your local authority to be rehoused as homeless, they may consider you intentionally homeless and may not agree to rehouse you. Get a valuation to see whether the selling price will cover the mortgage and any arrears. If it doesn't, you will need to get permission from your lender to sell the property. Think about how long it would take to sell the property and the costs involved, for example, estate agent's and legal fees. Until the property is sold, you will still be responsible for the mortgage payments and your arrears may go up. Think about the effect on taxation and benefits and the financial situation of other dependent adults in the property If you're thinking about selling your property to pay off your mortgage arrears, you should get advice. Handing back the keys to your mortgage lender Don't be tempted to just leave the property and hand back the keys to your mortgage lender unless you've sold the property or there is a court order to evict you. You won't gain anything by doing this. You will still be responsible for mortgage payments and buildings insurance until the property is sold, and will still have to make up any shortfall if the sale doesn't make enough to cover what you owe. If your lender asks you to give up the keys, you don't have to do this. If your lender wants to repossess the property, they have to get a court order first. If you do hand back your keys, you should wait until your lender has got a court order to evict you first. Also, if you're thinking about applying to your local authority to be rehoused as homeless, don't hand back the keys without talking to them first and explaining your situation. Your local authority may consider you intentionally homeless and may not agree to rehouse you. If you're in this situation, get advice. 7

8 Action your lender can take to recover arrears England and Wales If the arrears you owe are on a first mortgage, your lender will probably follow a standard procedure for recovering the arrears. The procedure will involve: Writing to you to ask you to pay back the arrears Issuing a claim for possession of the property. This will be sent by the county court and will give you details of when the court hearing will take place and the case against you Sending you a notice at least 14 days before the court hearing to say that possession proceedings have started A court hearing at which a district judge considers your lender's claim against you and any offers you have made to deal with the arrears A judgment, when the judge will decide what action is to be taken. This could mean postponing the case, dismissing the case, allowing you to stay in the property as long as you keep to an arrangement to pay off the arrears (suspended possession order), or making an order for you to leave the property (outright possession order). If an outright possession order is granted, this may or may not include an order for you to pay back any money owed Application for a warrant for bailiffs to evict you. This can be made either where the judge has made an outright possession order or where a suspended possession order has been made and you haven't kept to the terms of the agreement. Your lender can't legally evict you from your property unless they have applied for a warrant of possession first Eviction from the property. Bailiffs, who will inform you of the date and time of the eviction in advance, will carry this out. The bailiffs visit the property to make sure that it's empty and then change the locks It's worth remembering that it is almost never too late to try and come to an agreement with your lender. Even if your lender has applied for a warrant of possession, you might still be able to come to an agreement that would allow you to avoid eviction. Also, you might be able to ask the court to grant an order allowing you to stay in the property. If you're in this position, you should get advice. Scotland If the arrears you owe are on a first mortgage, there are a number of procedures the lender may use to get possession of the property then sell it. The procedures can involve: Writing to you to ask you to pay back the arrears and warning you that legal action will be taken Issuing a notice of default Sending you a calling up notice Sending a court initial writ for repossession 8

9 Sending an initial writ for a court hearing the purpose of which is to declare the lender's right to sell, enter into possession and eject you Application for a warrant to eject to evict you. This can be made when the sheriff has made a possession order. Your lender can't legally evict you from your property unless they have applied for a warrant of ejection first Eviction from the property. Sheriff officers, who will inform you of the date and time of the eviction in advance, will carry this out It's worth remembering that it is almost never too late to try and come to an agreement with your lender. Even if your lender has applied for a warrant to eject you, you might still be able to come to an agreement that would allow you to avoid eviction. Also, you might be able to ask the court to grant an order allowing you to stay in the property. If you're in this position, you should get advice. In some cases you can apply to the sheriff court to suspend the legal action being taken by the lender. Whether or not you can apply to suspend the legal action may depend on the type of property you have the mortgage for and who lives in it as their sole and main residence. If you have the mortgage and the property is your sole or main residence you have the right to apply and so does your partner in most cases. You should get advice about your rights because you have to respond within certain time limits. Your lender has to tell you that you have these rights or the notice to take legal action is illegal. When you have the right to apply to court to suspend the lender's action you are getting some more time to sort out the problems you have had with mortgage arrears. You will still have to pay the arrears. Northern Ireland If the arrears you owe are on a first mortgage, your lender will probably follow a standard procedure for recovering the arrears. The procedure will involve: Writing to you to ask you to pay back the arrears. If the mortgage is regulated by the Consumer Credit Act 1974 (i.e. where the loan is for more than 20,000), a default notice must be sent in accordance with the Act. Once this expires, a letter before action with a notice to quit will be sent which gives you seven days to either leave the property or clear the arrears. In unregulated cases, the letter before action and notice to quit will be sent and this will give seven days to either leave the property or clear the arrears. An originating summons would be lodged with the High Court, which would then be served on the mortgagee, which will give them 14 days to respond After the 14 days expires, an affidavit of service and a grounding affidavit will be lodged in the High Court. These are submitted with a notice of appointment and the court will come back and give an appointment for a hearing date. A court hearing at which a High Court judge considers your lender's claim against you and any offers you have made to deal with the arrears 9

10 A judgment, when the judge will decide what action is to be taken. This could mean postponing the case, dismissing the case, allowing you to stay in the property as long as you keep to an arrangement to pay off the arrears (suspended order for possession), or making an order for you to leave the property (outright order for possession). This order must then be enforced through the Enforcement of Judgments Office, which eventually leads to an order for delivery of possession being served on the mortgagor. Eviction from the property. For security reasons, enforcement officers will inform the lender of the date and time of the eviction in advance, but not the mortgagor. The enforcement officers attend the premises to evict the mortgagor, usually with a contractor who will change the locks and turn off any services if required. It's worth remembering that it is almost never too late to try and come to an agreement with your lender. Even if your lender has applied for an order for possession, you might still be able to come to an agreement that would allow you to avoid eviction. Also, you might be able to ask the Enforcement of Judgments Office to grant a stay of eviction allowing you to stay in the property whilst you appeal the order for possession in the High Court (i.e. where you have cleared the arrears or you want to negotiate an arrangement to clear the arrears). If you're in this position, you should get advice. What happens after repossession? If your mortgage lender has been granted a possession order, you will still be responsible for the mortgage payments until the property is sold. This is regardless of whether you are still living there. You will also be responsible for the cost of repairs, maintenance and insurance. You should check your insurance policy to see whether it is still valid if you're not living there. Your lender has a duty of care towards you when selling your property. This means that they must get the best price that they can for it. However, in practice, lenders often sell properties at auction, and repossessed properties sold in this way often sell for less than they would on the open market. If you believe that your lender has treated you unfairly, for example, because they took a long time to sell your property and your arrears went up because of this, you can complain to the Financial Services Ombudsman. Once your lender has sold your property they will: Take what it is owed from the proceeds of the sale Deduct any legal and estate agents' fees Repay any other lenders if the property has been used as security for a loan Give anything which is left over to you - although there may be nothing left over to give you and you may have other debts to pay off If the money from the sale of the property is not enough to repay what you owe, you will have to pay the difference. This is called a shortfall. The lender will send you a bill for the shortfall. The lender may go to court to force you to pay this amount. 10

11 If you don't pay off the mortgage shortfall and then buy another property, the lender of your first property may take court action against you. If they get a court order against you, and you don't pay up, they could then apply for a charging order against your new property. This means that, when you sell the new property, the proceeds of the sale will be used to repay the shortfall and can be used by the lender to obtain a new possession order to obtain possession of the new property. The lender of your first property may also be able to force a sale of your new property in order to obtain repayment of the shortfall. In Scotland, if you don't pay off the mortgage shortfall and then buy another property, the lender of your first property may apply to court for powers to force you to pay back the shortfall. This could include making you bankrupt. If there is a shortfall after your property has been sold, you should get advice. Arrears on shared ownership properties If you are on a shared ownership scheme, you will usually make a monthly payment towards your mortgage and a rent payment to your landlord. This means that there are two possible ways your home could be repossessed if you get into arrears. If you are in arrears on your mortgage, your mortgage lender could try and get possession of your property. If you are in rent arrears, your landlord could try and get possession. If you are on a shared ownership scheme, you may be able to reduce your mortgage payments through selling back some of your ownership of the property to the landlord. This is called flexible tenure. Not all shared ownership schemes offer flexible tenure so you will need to contact your landlord to check if this is available. You will have to show that you've explored all other options first. There may be other options available to help you sort out your mortgage or rent arrears. If you have trouble in meeting your mortgage or rent payments or you are already in arrears, you should get help straight away. Arrears on second mortgages and other secured loans As well as the first mortgage on your property, you may have taken out a second mortgage or further loan from a bank or finance company, using the property as security. This is known as a secured loan. The loan could have been used, for example, to pay for repairs, home improvements, a car, or to pay off other debts. If you get into arrears on a second mortgage or other secured loan, the lender will usually try to get possession of your property and sell it in order to pay back the loan. The lender of a secured loan has the same rights to evict you if you are in arrears as the lender of your first mortgage. The second lender does not have to get the permission of the first lender before trying to get possession of your home. 11

12 If you are in arrears on a second mortgage or other secured loan, you should get advice. 12

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