Attachment allows a creditor to seize a debtor's moveable property as a means of recovering money owed. Unlike arrestment, which is used against property held by a third party, attachment can be used to seize property owned by the debtor and in their possession. Attachment cannot be used to seize goods in the debtor's dwellinghouse, unless an order for exceptional attachment been granted by the Sheriff.
The creditor must have a decree (or relevant document of debt) and have issued the debtor with a Charge for Payment, which must have expired, before proceeding with attachment. Where the debtor is an individual, the creditor must also have provided them with a Debt Advice and Information Package.
Section 11 of the Debt Arrangement and Attachment (Scotland) Act 2002 lists certain items that cannot be attached. These items include tools of trade or books required by the debtor for their profession, any vehicles the use of which is reasonably required by the debtor and does not exceed a specified value, and mobile homes used as the debtor's main residence.
There are certain days and times when an attachment cannot be carried out unless prior authority has been granted by the sheriff. Attachment may not be carried out on Sundays and public holidays, before 8am or after 8pm, and if started within these times it cannot continue past 8pm. The sheriff officer carrying out the attachment has the power to 'open shut and lockfast places' in order to attach and value goods and must arrange for a professional valuation where considered appropriate.
Within 14 days of carrying out the attachment, the Sheriff Officer must make a report to the Sheriff. Once the report has been received by the Sheriff, the Sheriff Officer can arrange to remove the attached items and sell them at auction, which the Sheriff Officer must attend to record any items sold. Money obtained at auction may be used to pay the Sheriff Officer's fees and expenses, then pay the creditor what he is owed. Any surplus is returned to the debtor. If the items do not sell, ownership of the goods passes to the creditor.
Interim attachment is a provisional diligence, similar to diligence on the dependence. Interim attachment protects the interests of creditors whilst a court action progresses. It effectively restricts the debtor's ability to deal with attached moveable assets in their possession pending the outcome of the action, but does not allow the creditor to remove or sell the attached items. The court may, upon application any time after interim attachment, make provision for the security of attached articles.
The scope of interim attachment is limited and excludes articles specified in section 11 of Debt Arrangement & Attachment (Scotland) Act 2002 as well as articles within a dwellinghouse, perishable items and certain items connected to the trade of the debtor.
As with diligence on the dependence, prior to a warrant for interim attachment being granted, a date must be set for a hearing in all cases. This gives the debtor and any other person having an interest the opportunity to be make representation. In many instances this hearing will be held prior to warrant being granted. However, where the court is satisfied that the creditor has a good case in the main action or that there is a real risk that the creditor could be prejudiced in some way prior to the action being decided, then a warrant can be granted prior to the hearing.
This interim diligence does not allow the creditor to take steps to dispose of the attached items and when a decree is granted, a further valuation and attachment must be carried out before the creditor can proceed to sell attached goods.
There is a special procedure for the attachment of non-essential articles kept in a dwellinghouse. The procedure, known as exceptional attachment, can only be used in exceptional circumstances.
An exceptional attachment order authorises the attachment, removal and auction of non-essential assets belonging to the debtor and kept in a dwellinghouse. Before granting an order the sheriff will take a number of matters into consideration including the nature of the debt, whether the debtor resides in the dwellinghouse, whether they have had money advice and whether there is, or has been, any agreement between the debtor and creditor for the payment of the debt
The Sheriff will satisfy himself that the creditor has taken reasonable steps to negotiate a settlement of the debt with the debtor. The Sheriff will also check that the creditor has already executed or attempted to execute an arrestment and an earnings arrestment and that there is a reasonable prospect that any sums recovered through exceptional attachment would produce the aggregate of chargeable expenses and £100.
Unlike ordinary attachment, articles attached under authority of an exceptional attachment order are removed immediately from the dwellinghouse unless it is impractical to do so. Once removed, attached articles may not be auctioned before 7 days have elapsed from the date of removal. During this 7 day period the debtor may apply to the Sheriff for an order that will cease the attachment and return the attached articles to the debtor, if the Sheriff considers this appropriate in the circumstances.
Money attachment allows a creditor to attach money (cash including coins and banknotes in a foreign currency, postal orders, banking instruments etc) which is held on a debtor's premises although money in a dwellinghouse cannot be attached
A creditor must be in possession of a decree (or relevant document of debt) and must have issued the debtor with a Charge for Payment, which must have expired, before proceeding with money attachment. Where the debtor is an individual, the creditor must also have provided them with a Debt Advice and Information Package
There are certain days and times when a money attachment cannot be carried out unless prior authority has been granted by the sheriff. Money attachment may not be carried out on Sundays and public holidays, before 8am or after 8pm, and if started within these times it cannot continue past 8pm. The sheriff officer carrying out the attachment has the power to 'open shut and lockfast places' in order to carry out a money attachment.
The Sheriff Officer carrying out the money attachment must make a detailed report to the sheriff(and copy it to the debtor, the creditor and any other person who has asserted that the money attached is not owned by the debtor) within 14 days of the attachment.
If the debtor thinks the attachment is unduly harsh or that the sheriff officer has not carried out the attachment correctly, or a third party claims to own the money (or own it in common with the debtor), then an application may be made to the sheriff to have the money returned. If it is thought the attached money might deteriorate in value, the creditor, debtor or sheriff officer may all apply for the immediate release of the attached money.
Once the report of the attachment has been made, the creditor may apply to the sheriff for a payment order authorising the release of the attached funds. The application for the payment order must be within 14 days of the report of the attachment being made.
The payment order allows the sheriff officer to realise the value of the attached money, including presenting cheques for payment.
Once the money has been realised the sheriff officer can dispose of the funds, retaining their own fees and outlays and paying the creditor the amount recoverable by the money attachment. Any surplus funds are returned to the debtor. Within 14 days of making payments to the creditor, the sheriff officer must give a full and final statement of the money attachment to the sheriff
Land Attachment (not yet commenced)
Land Attachment is intended, together with residual attachment, to replace the existing diligence of adjudication for debt
Land attachment is intended to provide a diligence which allows unsecured creditors to enforce debt by taking action against a debtor's land. In this context 'land' means land including buildings and other structures, land covered by water and long leases of land of which the debtor is the tenant. Land attachment will give the creditor a 'subordinate real right' over the attached land as security for the sum recoverable by the land attachmen
Land attachment will require the debt to be constituted by decree or document of debt and the service of a Charge for Payment upon the debtor. Where the debtor is an individual, the creditor will also be required to provide a Debt Advice and Information Package no earlier than 12 weeks before registering a notice of land attachment
Land attachment is designed as a two-stage process whereby the creditor can secure the amount owed by the attachment, but can only bring about the sale of land by securing a warrant for sale from the court. There are a number of protections incorporated into the legislation, intended to balance the interests of debtors and creditors, particularly where attached land includes a dwellinghouse which is the sole or main residence of the debtor
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