Attachments

The process of Attachment was introduced by the Debt Arrangement and Attachment (Scotland) Act 2002 (2002 Act). Click here to view act.

Note-Amendment to Section 11 (1) (b)

“any vehicle, the use of which is so reasonably required by the debtor, not exceeding in value £1,000 or such amount as may be prescribed in regulations made by the Scottish Ministers”

Over the years different forms of attachment have been introduced to cope with different circumstances which may arise, the attachments currently in force are:

Interim attachment

This is a provisional diligence and is basically a “Diligence on the Dependence”. It allows the creditor to attach moveable assets of the debtor before the action has started.  The court may, upon application any time after interim attachment, make provision for the security of attached articles.

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. 

Interim attachment may not be used to attach the following assets - 

• Those inside the debtor’s home; 
• Those which are exempt under section 11 of the 2002 Act

Attachment 

Attachment only applies to assets which are kept out-with the dwellinghouse. This could mean in a garage, on a driveway or in business premises. It 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 may not be used to attach the following assets: 

• Those inside the debtor’s home; 
• Those which are exempt under section 11 of the 2002 Act

Exceptional attachment

This procedure allows attachment of non-essential assets within the debtor’s dwelling house, but only on application by the creditor and only where the sheriff is satisfied that there are exceptional circumstances. (The list of non-essential assets can be found in Schedule 2 of the 2002 Act).

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. Under an exceptional attachment articles may be removed immediately unless it is impractical to do so.

Money attachment

Money attachment is permitted to enforce payment of a debt only if the creditor holds a court decree or other and has served a charge for payment on the debtor 

Where the debtor is an individual, the creditor has, no earlier than 12 weeks before executing the money attachment, provided the debtor with a debt advice and information package. Money in a dwellinghouse cannot be attached.

Money means cash (sterling and other currencies), cheques, negotiable instruments, promissory notes, money orders and postal orders. It is thought that the main areas where money attachment will be used is in places where cash changes hands, such as in shops, public houses and places of entertainment.

There are certain days and times when an attachment, exceptional attachment and money attachment cannot be carried out unless prior authority has been granted by the sheriff. All these attachments 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.