The information in this part is only for court proceedings commenced in Western Australia.
If you have been given a default notice and do not pay the arrears within the specified period, the lender can ask you to vacate the property and give vacant possession. In many cases, the lender will start legal proceedings for a court order to:
- repossess your property, and
- get you to pay the amount owed under the loan, as well as all arrears and interest.
If the lender has started court proceedings, you will be personally handed (served) a Writ of Summons that has been issued by the Supreme Court of WA.
What is a Writ of Summons?
A Writ of Summons is a court document used to start legal proceedings. If you have been served with a Writ it will usually:
- have 'In the Supreme Court of Western Australia' written near the top of the page
- have a stamp from the Supreme Court of WA on the document
- have the lender’s name and details as 'the Plaintiff' and your name and details as 'the Defendant'. If there is more than one borrower or guarantor, they might be called 'First Defendant', 'Second Defendant', and so on
- be titled Writ of Summons
- include details of the loan and mortgage, and state that you failed to make certain payments as required under the loan, and
- tell you how long you have to respond to the Writ.
There are strict time limits to respond to a Writ. You should get legal advice immediately even if you are unsure whether you have received a Writ.
If you do not respond within the required period of time, the lender can apply to the court for judgment against you and possession of your home.
What are my options after receiving a Writ
You need to think about all your options and what is realistic for you. Get urgent legal and financial advice about all your options before deciding what to do or taking any action. “Doing nothing” is the worst thing to do.
You may be able to lodge a dispute with the Australian Financial Complaints Authority (AFCA).
This may give you time to:
- negotiate with the lender including to ask for time to sell your house or to try to access your superannuation, or
- apply for a hardship variation.
Or, you might agree to hand over possession of the property to the lender.
If you want to defend the claim in court, you will need to lodge a Memorandum of Appearance.
