Heading to court - Mortgage stress

Mortgage stress logoThe information in this part is only for court proceedings commenced in Western Australia.

If have been given a default notice and did 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, if you are unsure whether you have received a Writ.

If you do not respond within the required period of time, the lender can then apply to the court for judgment against you for possession of your home.

What are my options after receiving a Writ

You need to think about what options are available to you, and what you can realistically achieve. You may be able to lodge a dispute with AFCA while you negotiate with the lender or apply for hardship variations. This may also be to ask the lender for time so you can sell your house, or try to access your superannuation. You might agree to hand over possession of the property. If you want to defend the claim in court, you will need to lodge a Memorandum of Appearance.

You should get urgent legal and financial advice about your options, and then decide to take action. Doing nothing is definitely the worst thing you can do.

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The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.