Mortgage rights proceedings – Home Owner and Debtor Protection (Scotland) Act 2010

Applications to defend proceedings: pre-action requirements lenders must have taken

Your client may oppose an action to repossess property on the grounds that:

  • The arrears are not due
  • Pre-action requirements have not been complied with
  • It is not reasonable for the court to grant the order

The Home Owner and Debtor Protection (Scotland) Act 2010 introduced steps a lender must take before starting any court action.  If the lender does not take these steps the application for repossession will not be valid.

The pre-action requirements are that the lender must:

  • Provide clear information about the amount due to the lender, any arrears, charges or other obligations
  • Make reasonable efforts to agree a way out of any default
  • Not take action against debtors if the debtors are themselves taking action which is likely to remedy any default
  • Provide information about sources of advice to debtors
  • Regard to any guidance that may be issued by the Scottish Ministers on pre-action requirements.

Specific evidential requirements

You must send us a statement from your client that explains in detail:

  • The background circumstances to the action including steps taken by the creditor by way of pre-action requirements
  • any defence to be offered if they claim no arrears are due
  • why it is not considered reasonable for the court to grant an order

We also require a copy of the application to the court, a supporting statement or supporting documentation. If these are not available, please explain why not.

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