Arrestments

This type of arrestment is used on a debtor’s moveable assets which are in the hands of a third party. If the assets were in the debtor’s own hands the diligence of attachment would need to be used. Although it is not exclusively used against money held in banks or building societies this is by far the main type of action for this type of arrestment. Although a creditor could arrest goods that were held in storage by a third party (e.g. furniture).

• The creditor is known as the Arrester
• The debtor is known as the Common Debtor
• The bank or building society is known as the Arrestee

The Bankruptcy and Diligence etc (Scotland) Act 2007 has introduced a protected minimum balance (PMB) of funds within a bank or other financial institution that is protected from arrestment. This sum is presently £494.01 provided that the debtor is an individual and the account is not a business or trading account. The arrestment does not automatically transfer money from the debtor’s account to the creditor but freezes the amount above £494.01 and if the debtor refuses to sign a mandate for release the money will be automatically released after 14 weeks.

Where funds are attached as a result of the arrestment, the amount arrested is limited to either, the amount the arrestee holds for the debtor or the total amount (including all charges, expenses and interest) due to the creditor, whichever is less.

Arrestment of earnings

There are three types of diligence that can be used to arrest a debtor’s earnings or wages:

1.  Earnings arrestment
Earnings arrestment is used to make a deduction from a debtor's earnings for enforcement of a single debt. 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 (14 or 28 days), before proceeding with diligence against earnings. Creditor must provide debtor with a Debt and Information Package (DAIP).  This type of arrestment requires the debtor’s employer to deduct sums in accordance with the earnings arrestment tables SSI 2015 No 370-The Diligence against Earnings (Variation) (Scotland) Regulations 2015 which came into force on the 6th April 2016 and pass the deduction to the creditor.

2.  Current maintenance arrestment
Current maintenance arrestment (CMA) can be used to enforce the payment of maintenance, such as a regular allowance awarded by a court on divorce, when the debtor is in default. A creditor must have a current maintenance order from the court on which the debtor has defaulted and, where the debtor is an individual, the creditor must also have provided them with a DAIP. This type of arrestment requires the debtor’s employer to deduct sums in accordance with the earnings arrestment tables (see earnings arrestment tables) and pass the deduction to the creditor.

3.  Conjoined arrestment order
A conjoined arrestment order is an order granted by the court to enforce payment of two or more of the same type of debts, at the same time. For conjoined arrestment orders, the debtor's employer is required to make a deduction and pass it to the court to distribute the funds. The amount deducted is still the same as it would be for a single arrestment only the sum is divided in a pro-rata basis between the conjoined creditors.

In all the above diligences the Debt and Information Package (DAIP) must be served on the debtor no earlier than 12 weeks before the arrestment.