DMBM670500 - Summary warrant: General attachments: Dealing with (a) deliberate unlawful acts after attachment and (b) attached articles that have been stolen
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Para 21 of the Debt Arrangement and Attachment (Scotland) Act 2002 prohibits the defender or person in possession of the attached article from damaging, destroying, moving, selling, gifting or otherwise disposing of that article. If they do take any of these actions then they will be acting in breach of the attachment and may be dealt with as a contempt of court.
Para 21 of the Debt Arrangement and Attachment (Scotland) Act 2002 also advises that where an attached article is stolen the defender must give notice to both the sheriff officer and the creditor (pursuer) of the fact. He must also inform them of any claim for insurance that he either makes or intends to make with regard to the stolen article. If he does not follow this action he will be acting in breach of the attachment and may be dealt with as a contempt of court.
Applying to the court to attach other articles where the attached articles are either damaged, destroyed or stolen
Where the attached articles have been damaged or destroyed or stolen the creditor/sheriff officer can apply to the sheriff court to attach other articles that are owned by the defender and kept at the place at which the original attachment was executed. The application must be made on a (court) form 6 (para. 11 of the Debt Arrangement and Attachment (Scotland) Rules 2002).
Applying to the court to have a damaged article re-valued
Where a damaged article is involved the creditor/sheriff officer can apply to the sheriff court to have the damaged article re-valued. This too must be done on a (court) form 6 (Rule 11 of the Debt Arrangement and Attachment (Scotland) Rules 2002).
Movement of the attached article by the debtor (defender) or 3rd party
Where the defender or third party who knows that an article is attached, moves it from the place that the attachment took place at and the article is
- damaged, destroyed, lost or stolen or
- acquired for value either from or through the defender or third party by another person without knowledge of the attachment
or the defender or third party
- wilfully damages or destroys the attached article
you can apply to the sheriff to consign a sum of money to the creditor (pursuer). This must be done on a (court) form 7. (Rule 11 of the Debt Arrangement and Attachment (Scotland) Rules 2002.) The sum of money consigned will be equal to the value that the sheriff officer placed on the article when he carried out his attachment.
In the case of a damaged article the sum consigned will be dependent on the actual damage to it. In such cases the sum consigned will be equal to the difference between the value that the article was originally attached at and the value now placed on it if sold in its present condition on the open market. The revised valuation will be done by the sheriff officer (or if needs be where considered necessary, by a professional valuer).
If the attachment of a damaged article ceases to have effect before the article is auctioned, any sum consigned in court will be paid to the pursuer (but only to the extent of the sum recoverable). Any excess will be paid to the defender.
Court action on receipt of a form 6 or 7 application
On receipt of either a form 6 or 7 application from you in accordance with the above the sheriff will
- fix a date for a hearing
- grant a warrant for intimation (DMBM670100)
- intimate the application and warrant to the defender and send a copy of the intimation to the sheriff officer and
- complete a certificate of intimation (DMBM670100).
Action by the sheriff officer
The sheriff officer must lodge a copy of the attachment schedule with the sheriff clerk before the date fixed for the hearing.
Attendance at the hearing
The hearing should be attended by an experienced debt manager or above who must be fully conversant with the Debt Arrangement and Attachment (Scotland) Act 2002 as he/she will be expected to explain the circumstances of the case to the sheriff if necessary.