DMBM670750 - Summary warrant: exceptional attachments: Unlawful acts before exceptional attachment executed
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Articles moved, sold or given away
The defender, or any person who knows that an exceptional attachment order has been made, will be regarded as being in breach of the order if they, before the attachment is executed
- move any article which forms part of the defender’s non-essential assets from the dwellinghouse in which it is kept or
- sell, give away, or otherwise relinquish ownership of any such article without the consent of the sheriff.
Note: In order to obtain the consent of the sheriff to sell etc., the defender must make an application on form 27 (see the Debt Arrangement and Attachment (Scotland) Rules 2002 (SI560/2002)).
On receipt of such an application the sheriff clerk will fix a date for a hearing and intimate the application to you.
Articles wilfully damaged or destroyed
Any person who, knowing that an exceptional attachment order has been made and prior to the attachment being executed, wilfully damages or destroys any article forming part of the defender’s non-essential assets, will be regarded as acting in breach of the order.
Stolen articles
At any time after an exceptional attachment order has been made, where any article forming part of the defender’s non-essential assets is stolen, the defender must
- notify the pursuer, the sheriff officer and the sheriff who granted the order of the loss
- advise them of any related claim he makes or intends to make under a contract of insurance
- send form 5 to the sheriff who made the order and a copy to you as pursuer (the Debt Arrangement and Attachment (Scotland) Rules 2002 (SI560/2002) refer).
Movement of any article forming part of defender’s non-essential assets prior to attachment being executed
Where the defender or any third party who knows that an exceptional attachment order has been made moves any article forming part of the defender’s non-essential assets from the dwelling house in which it is kept before an attachment is executed in pursuance of that order and the articles is
- damaged, destroyed, lost or stolen or
- acquired from or through the defender or third party by another person without knowledge of the order or
- wilfully damaged or destroyed
you can apply on a form 7to the sheriff to consign a sum of money to the creditor (pursuer) (Rule 33 of the Debt Arrangement and Attachment (Scotland) Rules 2002 (SI 560/2002) refers).
Stolen articles
Where an article is stolen the sum consigned will be the amount it has been valued at.
Damaged articles
The sum of money consigned in the case of a damaged article depends on the actual damage to it. Where the article has been damaged but not so damaged as to make it worthless then the sum consigned will be a sum equal to the difference between the value of the article before it was damaged and the value of the article in its damaged state.
Where the article has been damaged to the extent that it makes it worthless then the sum consigned will be a sum equal to the value of the article before it was damaged.
Where in the case of a damaged article the exceptional attachment order ceases to have effect (expires) before the article is auctioned, any sum that has been consigned in court for this will be paid to the creditor to the extent of the sum recoverable. Any excess will be paid to the defender.