DMBM671160 - Summary warrant: Conjoined arrestment orders
General
If you discover that an earnings arrestment which you have served on an employer cannotbe operated because there is already another earnings arrestment in place you and/or anyother creditor can apply to the court for a conjoined arrestment order.
If the conjoined arrestment is granted then the original earnings arrestment will berecalled and a fresh order made requiring the employer to forward deductions to thesheriff clerk.
The sheriff clerk will oversee the operation of the conjoined arrestment order and beresponsible for making pro-rata payments to the creditors named in the order.
This will then mean that whilst there is still only one earnings arrestment in operationthe proceeds from it will be divided between the creditors who have been conjoined in theorder.
Applying for a conjoined arrestment order
To apply for a conjoined arrestment order you must
- obtain (court) form 43 from the court and
- request the employer to supply you with
- the name and address of the other creditor
- the date and place of execution of the earnings arrestment
- the amount of the debt specified in the arrestment schedule and
- whether there is already a conjoined arrestment order in operation against the earnings.
If exceptionally the employer fails to provide you with this information then you mustapply on a (court) form 42 (again available from the court) for an order requiring him todo so.
Signature on (court) form 43 application
Wherever possible the officer who signed the summary warrant application should signthe (court) form 43. If however this is not possible then you must attach a letter ofexplanation to the application.
Where to make the (court) form 43 application
You must make your application for a conjoined arrestment order to the court in thesheriffdom where the earnings arrestment has been laid. This may be a different court fromthat which granted the summary warrant.
The application should be made by hand, if convenient, or by the Hays DX system (or byfirst class post if for whatever reason this is not possible).
Hearing the form 43 application
The application will be heard before the sheriff in whose sheriffdom the earningsarrestment has been laid. An experienced officer who is fully conversant with the case andthe requirements of the Debtors (Scotland) Act 1987 should attend the hearing.
Once the sheriff has considered the case his decision will be final. If your applicationis refused the earnings arrestment will remain valid but the employer will not operate ituntil the debt recoverable by the prior arrestment has been cleared.
Form 43 application granted
When the sheriff grants an application the employer will be responsible to the courtfor all matters relating to it.
Deductions made from the defenders earnings will be sent to the sheriff clerk whowill arrange for payment of their appropriate share to be made to each creditor.
The method of operation and the intervals at which payments will be made to the creditorsmay vary from court to court.
You should
- liaise with the sheriff clerk to ascertain when payments may be expected and
- B/F your papers accordingly.
Note: You must not send reminders to the sheriff clerks office unlessyou have reason for serious concern regarding the matter.
Advising the sheriff clerk when the debt is cleared
As soon as the debt covered by the conjoined arrestment order has been paid orotherwise cleared (by discharge for example) you must notify the sheriff clerk in writingimmediately. If you do not do so the Department will be liable to repay the defender anyexcess deductions made by the employer plus interest on that sum.
In addition to this the defender may apply to the sheriff for an order requiring theDepartment to pay him twice the amount of the excess.