03 Sep 2011

The Homeowner and Debtor Protection (Scotland) Act: 12 months on

The Homeowner and Debtor Protection (Scotland) Act: 12 months on

Rob Aberdein, Partner, takes a look at the Home Owner and Debtor Protection (Scotland) Act 2010 12 months after it was introduced and examines whether borrowers are now really better protected.

Rob Aberdein, Partner, takes a look at the Home Owner and Debtor Protection (Scotland) Act 2010 12 months after it was introduced and examines whether borrowers are now really better protected.

The Home Owner and Debtor Protection (Scotland) Act 2010 has been with us for nearly a year. Despite this, Courts and lawyers are still feeling their way through the nuances of the new processes and procedures. That said, some common themes and accepted practices are emerging across Scotland’s Sheriff Courts. So what are they?

Clusters

As predicted, Sheriff Courts are pulling all repossession cases together and calling them in ‘clusters’. This has worked well and many Courts have allocated a specific Sheriff to their ‘repossession court’ and so there is consistency and a growing understanding of the law on the bench.

A Changing Approach on the Bench

As far as judicial interpretation goes, initially, Sheriffs appeared willing to grant repossession orders, even where payment arrangements were in place. As the year has progressed, there has been a distinct shift away from this approach. Where a payment arrangement is in place, regardless of when that arrangement was agreed, very few Sheriffs will grant a judgement. most Sheriffs have come to the conclusion it would appear, that it is always reasonable to give the borrower ‘one final chance’ to maintain an arrangement, regardless of previous broken arrangements or account conduct.

A Longer Repossession Timeline

As a result of what can often be two or three Continuations, the number of Hearings in Courts is continually on the increase. This is putting considerable pressure on the Courts’ administration functions and their ability to process cases effectively. It is not unusual for example for a lender to have to wait eight to twelve weeks for a First Hearing.

Case Being ‘Put to Sleep’

In an attempt to free up the Court Rolls, an emerging trend amongst Sheriffs is the use of ‘Sists’ (which ‘put cases to sleep’). This effectively removes the administration burden from the Courts themselves and places the onus on the lender to monitor what the borrower is (or isn’t) doing to remedy the default on their account. When a Sist occurs we will monitor payment arrangements, applications to ‘help schemes’ or the marketing of a property for sale and will only return the case to court (‘wake it up’) if the borrower does not satisfy us that they will remedy their default.

Dealing with Cases Summarily

One other positive trend for lenders is that Sheriffs appear to be anxious to deal with cases ‘Summarily’. This approach to court procedure was always the intention of Government when they brought in the 2010 Act and is really the appropriate way for Sheriffs to handle repossession cases (the 2010 Act moved repossession cases from Ordinary Procedure which is typically formal, structured and written pleading based to Summary Procedure which is typically informal, flexible and verbal submission based). Full Hearings now tend only to be assigned where there are significant matters in dispute (therefore providing Sheriffs with time to consider matters in detail after hearing evidence).

Conclusions

The Act has certainly enhanced the ability of borrowers to have ‘their day in Court’. The problem is however that already stretched Courts have had to find the time to hear them. Sheriffs and lawyers have had to be on their toes as they struggle with what the law actually is and how Courts should interpret it. The repossession timeline has at least doubled, if not tripled. Sheriffs so far have demonstrated significant tolerance of borrowers, regardless of past conduct – this may be due to the fact that until the introduction of the 2010 Act, Sheriffs were rarely exposed to borrowers’ often dubious or suspect arguments as to why judgement should not be granted. We would suspect that this attitude will change in the months and years to come as Sheriffs become more savvy.

If the 2010 Act and the Scottish Courts were to be receiving a report card after a year, it would probably be a ‘C+’ with comments from the Teacher that ‘at times they show promise but must try harder’.

Rob Aberdein, Partner


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