Search Legislation

Bankruptcy and Diligence etc. (Scotland) Act 2007

 Help about what version

What Version

 Help about advanced features

Advanced Features

Changes over time for: Cross Heading: Release of money attached

 Help about opening options

Alternative versions:

Status:

Point in time view as at 31/01/2011.

Changes to legislation:

There are currently no known outstanding effects for the Bankruptcy and Diligence etc. (Scotland) Act 2007, Cross Heading: Release of money attached. Help about Changes to Legislation

Close

Changes to Legislation

Revised legislation carried on this site may not be fully up to date. At the current time any known changes or effects made by subsequent legislation have been applied to the text of the legislation you are viewing by the editorial team. Please see ‘Frequently Asked Questions’ for details regarding the timescales for which new effects are identified and recorded on this site.

Release of money attachedS

183Creditor's application for payment orderS

(1)This section applies where—

(a)money has been attached by [F1an officer of court] in execution of a money attachment; and

(b)that money (or part of it) has not been released by virtue of section 182(6)(b), 185(3), 186 or 188(1) of this Act.

(2)The creditor may apply to the sheriff for an order (in this Part, a “payment order”) authorising payment to the creditor out of the money attached of a sum not exceeding the sum recoverable by the money attachment.

(3)An application under subsection (2) above must be—

(a)in (or as nearly as may be in) the form prescribed by Act of Sederunt;

(b)made before the expiry of the period of 14 days beginning with the day on which the report of money attachment is made.

(4)On making the application, the creditor must send a copy of it to—

(a)the debtor;

(b)the [F2officer of court]; and

(c)any person such as is mentioned in section 182(3)(d) of this Act.

(5)Subject to subsections (10) and (12) below, where there is no opposition to the application, the sheriff must make a payment order.

(6)The debtor or a third party who claims ownership (whether solely or in common with the debtor) of any of the money attached may oppose the application under subsection (2) above.

(7)An opposition under subsection (6) above must be—

(a)in (or as nearly as may be in) the form prescribed by Act of Sederunt; and

(b)made before the expiry of the period of 14 days beginning with the day on which the application is made.

(8)Where there is opposition, the sheriff may not make a payment order without first—

(a)giving—

(i)the creditor;

(ii)the debtor; and

(iii)any third party who opposes the application,

an opportunity to make representations; or

(b)holding a hearing.

(9)Where the debtor or, as the case may be a third party, opposes the application on the ground that money attached is not owned by the debtor, it is for the debtor or the third party to prove that fact.

(10)Where the sheriff is satisfied, after considering any opposition or on the sheriff's own initiative, that there has been a material irregularity in the execution of the money attachment, the sheriff must make an order such as is mentioned in subsection (11) below.

(11)That order is an order—

(a)declaring that the money attachment ceases to have effect; and

(b)requiring the [F3officer of court] to return the money attached or, where the value of any such money has been realised, a sum equivalent to that value, to the debtor or, as the case may be, the person whose money it is.

(12)Where the sheriff is satisfied after considering any opposition or on the sheriff's own initiative, that any money attached is not owned by the debtor—

(a)the sheriff must make an order such as is mentioned in subsection (11) above restricted to that money; and

(b)after the order is made, the [F4officer of court] may attach other money owned by the debtor and kept at the place at which the original money attachment was executed.

Textual Amendments

Commencement Information

I1S. 183 wholly in force at 23.11.2009; s. 183 not in force at Royal Assent see s. 227; s. 182(3)(a)(7)(a) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10); s. 183 in force at 23.11.2009 in so far as not already in force by S.S.I. 2009/369, art. 3 (with transitional modifications in art. 4)

184Effect of payment orderS

(1)A payment order authorises the [F5officer of court]

(a)to realise the value of money attached; and

(b)subject to section 37 of the 1985 Act (effect of sequestration on diligence), to dispose of the proceeds of the money attachment by—

(i)retaining such amount as necessary to meet the fees and outlays of the officer;

(ii)paying to the creditor the remainder of those proceeds so far as necessary to meet the sum recoverable by the money attachment; and

(iii)paying to the debtor any surplus remaining.

(2)For the purposes of subsection (1) above, the payment order authorises the [F6officer of court]

(a)to act as the irrevocable agent of the debtor in relation to any banking instrument attached; and

(b)to take any of the steps mentioned in subsection (3) below.

(3)Those steps are—

(a)presenting the instrument for payment;

(b)if instructed by the creditor to do so, raising any action for payment that would have been open to the debtor to raise against any person liable to honour the instrument;

(c)except where the instrument is not negotiable, negotiating the instrument—

(i)for value; or

(ii)to the creditor for value credited against the sum recoverable by the money attachment;

(d)any other steps the debtor could have taken in relation to the instrument before the money attachment was executed.

(4)The [F7officer of court] must, in taking any of the steps referred to in subsection (3) above, obtain the highest amount for the instrument as is reasonably practicable.

(5)In subsection (1)(b) above, “proceeds of the money attachment” includes any amount—

(a)deposited in a bank account by virtue of section 181(6) or 185(4)(b)(iii) of this Act;

(b)obtained as a result of taking any of the steps mentioned in subsection (3) above; and

(c)received by the [F8officer of court] by virtue of section 191(2)(c) of this Act.

185Release of money where attachment unduly harshS

(1)The debtor may, before—

(a)a payment order is made; or

(b)the money attachment ceases to have effect,

apply to the sheriff for an order such as is mentioned in subsection (2) below.

(2)That order is one—

(a)providing that the money attachment ceases to have effect in relation to—

(i)the money attached; or

(ii)so much of it as the sheriff specifies; and

(b)requiring the [F9officer of court] to return that money or, where the value of the money has been realised, a sum equivalent to that value, to the debtor.

(3)Where the sheriff is satisfied that, in the circumstances, the money attachment is unduly harsh to the debtor, the sheriff must, subject to subsection (4) below, make an order such as is mentioned in subsection (2) above.

(4)Where the value of the money attached exceeds £1,000 or such other amount as the Scottish Ministers may by regulations prescribe, the sheriff—

(a)may not specify money the value of which exceeds that amount; and

(b)may, where the money attached includes or comprises a banking instrument, authorise the [F10officer of court] to—

(i)realise the value of the instrument;

(ii)pay to the debtor from the money and, as the case may be, proceeds of that realisation the sum specified; and

(iii)deposit any surplus remaining in a bank account.

(5)In a case to which subsection (4)(b) above applies, the order under subsection (3) above authorises the [F11officer of court]

(a)to act as the irrevocable agent of the debtor in relation to the instrument; and

(b)to take any of the steps mentioned in section 184(3) of this Act.

(6)Subsection (4) of section 184 of this Act applies to any steps taken by virtue of subsection (5) above.

(7)Where the amount realised under subsection (4)(b)(i) above is less than the amount specified, the order is to be deemed to have required the [F12officer of court] to pay the amount realised only.

Textual Amendments

Commencement Information

I2S. 185 wholly in force at 23.11.2009; s. 185 not in force at Royal Assent see s. 227; s. 185(4) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10); s. 185 in force at 23.11.2009 in so far as not already in force by S.S.I. 2009/369, art. 3 (with transitional modifications in art. 4)

186Invalidity and cessation of money attachmentS

(1)Where, at any time before a payment order is made or the money attachment ceases to have effect, the sheriff is satisfied that there has been a material irregularity in the execution of the money attachment, the sheriff must make an order such as is mentioned in subsection (2) below.

(2)That order is an order—

(a)declaring that the money attachment ceases to have effect; and

(b)requiring the [F13officer of court] to return the money attached or, where the value of any such money has been realised, a sum equivalent to that value, to the debtor or, as the case may be, the person whose money it is.

(3)Where, at any time before a payment order is made or the money attachment ceases to have effect, the sheriff is satisfied that any money attached is not owned by the debtor—

(a)the sheriff must make an order such as is mentioned in subsection (2) above restricted to that money; and

(b)after the order is made, the [F14officer of court] may attach other money owned by the debtor and kept at the place at which the original money attachment was executed.

(4)An order under this section may be made—

(a)on the application of—

(i)the debtor; or

(ii)a third party claiming an interest; or

(b)on the sheriff's own initiative.

(5)Where such an order is made on the sheriff's own initiative, the sheriff clerk must intimate the order to—

(a)the debtor;

(b)the creditor;

(c)the [F15officer of court]; and

(d)any other person the sheriff thinks has an interest.

(6)The sheriff may not make an order under this section without first—

(a)giving—

(i)the debtor;

(ii)the creditor; and

(iii)any other person the sheriff thinks has an interest,

an opportunity to make representations; or

(b)holding a hearing.

(7)The sheriff must give reasons for making, or refusing to make, an order under this section.

187Termination of money attachmentS

(1)A money attachment ceases to have effect on the expiry of the period of 14 days beginning with the day on which the report of money attachment is made unless, within that period, the creditor—

(a)applies for a payment order; and

(b)sends a copy of the application to the [F16officer of court] under section 183(4)(b) of this Act.

(2)A money attachment ceases to have effect if the sum recoverable by the money attachment is—

(a)paid to—

(i)the creditor;

(ii)the [F17officer of court]; or

(iii)any other person who has authority to receive payment on behalf of the creditor; or

(b)tendered to any of those persons and the tender is not accepted within a reasonable time.

(3)Where a money attachment ceases to have affect by virtue of subsection (1) or (2) above, the [F18officer of court] must return money attached or, where the value of any such money has been realised, a sum equivalent to that value, to the debtor.

188Redemption of banking instrumentS

(1)The debtor may, before the expiry of the period of 14 days beginning with the date on which the report of money attachment is made, redeem a banking instrument attached by the money attachment.

(2)The debtor may not redeem an instrument in relation to which an order under section 181(3) of this Act has been made.

(3)The amount for which such an instrument may be redeemed is the value of the instrument specified in the report of money attachment.

(4)The [F19officer of court] must, on receiving payment from the debtor for the redemption of an attached instrument—

(a)grant a receipt in (or as nearly as may be in) the form prescribed by Act of Sederunt to the debtor; and

(b)report the redemption to the sheriff as soon as is reasonably practicable.

(5)The money attachment ceases, on the grant of such a receipt, to have effect in relation to the redeemed instrument.

Textual Amendments

Commencement Information

I3S. 188 wholly in force at 23.11.2009; s. 188 not in force at Royal Assent see s. 227; s. 188(4)(a) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10); s. 188 in force at 23.11.2009 in so far as not already in force by S.S.I. 2009/369, art. 3 (with transitional modifications in art. 4)

Back to top

Options/Help

Print Options

You have chosen to open The Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act as a PDF

The Whole Act you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open The Whole Act without Schedules

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act without Schedules as a PDF

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open the Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open the Whole Act without Schedules

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open Schedules only

The Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Point in Time: This becomes available after navigating to view revised legislation as it stood at a certain point in time via Advanced Features > Show Timeline of Changes or via a point in time advanced search.

Close

See additional information alongside the content

Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.

Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

Explanatory Notes

Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

Timeline of Changes

This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.

Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources