Statement of money attachment
Section 189 – Final statement of money attachment
628.This section requires a judicial officer to make a statement to the sheriff detailing everything that has happened in the course of the money attachment. The officer has 14 days from the later of the day the creditor was paid under a payment order or the day the last of the money attached was returned to the debtor or a third party under the various provisions of this Part (subsections (1) and (2)).
629.The statement must conform to the form prescribed in court rules and must specify details about any banking instruments, the value of which have been subsequently realised, the amount realised for each instrument, any instrument with a value which has not been realised, any chargeable expenses, any sums paid to the creditor, any surplus paid or instruments returned to the debtor and any balance due to or by the debtor (subsection (4)). If the statement is made electronically it will require an electronically certified signature (see section 198(3)).
630.The officer must submit the statement within the time limit; otherwise the officer may be liable for some or all of the expenses of the money attachment unless there is a reasonable excuse for the delay (subsection (6)). The officer may also be reported to the Scottish Civil Enforcement Commission for misconduct if the statement is late or is not submitted (subsection (7) and see section 67).
Section 190 – Audit of final statement under section 189(1)
631.Section 190(1) provides that the sheriff must send the final statement of money attachment to the auditor of court who must check the expenses and fix the amount of expenses chargeable, confirm any balance due by or to the debtor and make a report to the sheriff. Under subsection (2), the auditor of court must not alter the statement without first giving all interested parties an opportunity to make representations. The auditor is not entitled to a fee for making the report to the sheriff (subsection (3)).
632.Subsection (4) provides that once the report from the auditor of court has been received, the sheriff must certify the balance due by or to the debtor but may make modifications to the balance confirmed by the auditor of court. If the sheriff is satisfied that there has been a material irregularity in carrying out the money attachment (other than the timing of the judicial officer’s final statement), the sheriff can declare the attachment void. A consequence of that would be that the creditor would not be entitled to any sums paid under, for example, section 188, and these would have to be paid back to the debtor (or a third party, if a third party claimed ownership of the attached money). But even if the money attachment is declared void a person who, in good faith, has purchased or otherwise obtained money that was attached can keep the money in question and remains the lawful owner (subsection (6)).