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Bankruptcy and Diligence etc. (Scotland) Act 2007

Section 174 – Money attachment

583.Section 174(1) establishes a new diligence of “money attachment” which can be used to attach “money” (as defined in section 175) owned by a debtor.

584.Subsection (2) provides that money attachment is permitted to enforce payment of a debt only if—

  • the creditor holds a court decree or other enforceable document by which the debt is constituted (the definitions of “decree” and “document of debt” which apply to this Part by virtue of section 198(1) are set out in section 221);

  • a charge to pay has been served on the debtor;

  • the period for payment set out in the charge (14 days, or 28 days if the debtor is outside the UK or the debtor’s whereabouts are unknown – see section 90(3) of the 1987 Act) has expired without the debtor having made payment of the debt; and

  • 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 (being the package issued under section 10(5) of the 2002 Act – see section 221).

585.Subsection (3) provides that money in a dwellinghouse cannot be attached. The meaning of “dwellinghouse" here has the same meaning as in section 45 of the 2002 Act (see section 198(1)). Accordingly, a dwellinghouse does not include a garage even if it is built into the house nor does it include garden sheds or other outbuildings but a caravan, houseboat or other place used as a dwelling can be regarded as a dwellinghouse. Subsection (3) also provides that money attachment is not competent when the money is capable of being arrested. That is to say the money is held on behalf of a debtor by a third party, for instance a cheque made out to a debtor is being held by the debtor’s solicitor or accountant.

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