Download Evictions - Keeping Your Home

Home Owner & Debtor Protection
(Scotland) Act 2010 – key issues for
the advice sector, lay
representatives & solicitors
Eleanor Hamilton, Principal Solicitor
Shelter Housing Law Service
Home Owner & Debtor Protection
(Scotland) Act 2010
• Amends Conveyancing & Feudal Reform
(Scotland) Act 1970 & Heritable Securities
(Scotland) Act 1894
• New provisions relating to enforcement of
standard securities
• Applies to standard securities over residential
property
Court action must be raised
• Sections 1 & 2 – lender must raise court action
to enforce standard security
• One exception – voluntary surrender
• Action raised as summary application by
lender lodging Initial Writ at Sheriff Court
Pre-Action Requirements
•
Lender must certify having complied with PARs and detail compliance
•
Clear information on terms of security, amount due, charges and any other default
•
Made reasonable efforts to agree proposals
•
Has given notice to borrower if default on previous agreement
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Borrower hasn’t taken steps likely to result in payment of arrears
•
Has provided borrower with information on advice
•
Has encouraged borrower to contact local authority
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Has had regard to guidance issued by Scottish Ministers
Initial Court Procedure
• All cases must call in court
• Hearing assigned when application made by
lender
• Borrower will receive copy of Initial Writ and
intimation of hearing
• No need for borrower to lodge Notice of
Intention to Defend or Section 2 Minute
Court hearing
• If borrower doesn’t attend hearing
decree not necessarily granted against
him
• Sheriff can only grant application if
satisfied that lender has complied with
PARs and that it is reasonable to grant
decree
Court hearing – borrower present
• If borrower attends or is represented at
hearing he can oppose application.
• Borrower can inform court that PARs not
complied with
• Borrower can suggest that even if PARs
complied with is not reasonable to grant
decree
Matters for court to consider
•
Nature of and reasons for default
•
Ability of borrower to fulfil obligations within a reasonable period of time
•
Any action taken by creditor to assist borrower
•
Participation by borrower in a debt payment programme
•
Ability of debtor and other residents to secure reasonable alternative
accommodation
•
Not an exhaustive list
Further Court procedure
• Sheriff may order Answers
• Sheriff decides how best to proceed in circumstances
of case
• May fix further hearing after Answers lodged
• May allow time for adjustment
• May continue or sist action
• May fix an evidential hearing
• May grant decree or refuse application
Entitled residents
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Entitled residents to be disclosed in Initial Writ or Answers
Sheriff will order Initial Writ to be served on them
Can apply to court for an order using form 11E
Hearing assigned when application made
Sheriff can also order Answers
Application and hearing to be intimated to other parties
At hearing Sheriff to have regard to same matters as for
borrower’s first hearing
Minute for Recall
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Done by lodging form 11F
Hearing will be fixed on application
Application and hearing to be intimated to other parties
Decree must be recalled at hearing
If applicant doesn’t attend Sheriff will fix peremptory diet
Only one application may be submitted by each party
Application can only be made if client has not appeared,
been represented or submitted application in proceedings
Lay representatives
• Must be an approved lay representative
• Must be able to satisfy Sheriff throughout
proceedings that suitable person to represent
borrower or entitled resident and is
authorised to represent that person
Legal Aid & Expenses
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Consider whether client eligible for legal aid
May have a contribution to pay towards costs
May be a recovery of money/preservation of property
Effect of award of legal aid on expenses
Advise client about cost implication of opposing
application
Transitional Provisions
• Actions raised pre 30 September 2010
• Calling up notice/notice of default served pre 30
September 2010
• In future cases recall of decree will depend on whether
decree granted in action raised pre 30 September 2010
or after