Register of Insolvencies
The register of insolvencies is a statutory register about the insolvency of individuals and businesses in Scotland.
Information on the diligence of Attachment
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.
Attachment can also be used when an application for a decree is under consideration by the court but has not yet been decided. This preventative measure can be used to secure the debtor's property pending the outcome of a court action and is known as interim attachment.
The legislation dealing with attachment can be found in Part 2 of the Debt Arrangement and Attachment (Scotland) Act 2002.
This section of the website is intended to give a broad overview of diligence. It is not a full statement of the law nor does it provide a full description of each of the processes.