The following details some of the more frequently used terms you
will encounter in your dealings with the court when taking summary
warrant action.
Action of furthcoming – a final stage of
diligence for whatever has been subject to arrestment being made
over to the pursuer. For example, when a bank account has been
arrested and attempts to obtain a mandate from the defender to
release the arrested funds have proved unsuccessful, this final
stage of the diligence allows for the appropriate amount of funds
caught in the arrestment being transferred to the pursuer.
Apparent insolvency – a legal term that
means a debtor is unable to pay their debts and that at least one
of their creditors has taken legal action against them.
Arrestment – is the form of diligence
whereby a creditor ensures that money and moveable effects of the
debtor (e.g. an insurance policy) that are in the hands of a third
party are not made over to the debtor until the debt is paid. The
arresting creditor is known as “the arrestor”, the
third party as “the arrestee” and the debtor as
“the common debtor”. Arrestments laid on wages or
salaries etc due to the debtor by his employer are known as
earnings arrestments.
Attachment and auction sale – attachment is
a diligence over corporeal moveable property (owned by the debtor
alone or in common) for recovery of money owed by the debtor.
Attachment is carried out by a sheriff officer who values the
articles being attached at the price they are likely to fetch on
the open market. An attachment cannot be carried out on a Sunday or
on a day that is a public holiday in the area in which the
attachment is to be executed or any other day as may be prescribed
by Act of Sederunt. Also it should not be commenced before 8am or
continued after 8pm. The sheriff officer must, within 14 days of
the execution of the attachment, make a report of the attachment to
the sheriff.
The debtor has 14 days from the date of the execution of the
attachment to redeem the attached article. If he chooses to do so
once payment of the redeemed article has been received from him,
the attachment ceases to have effect.
If no redemption of the attached goods is requested then the
sheriff officer (once he has sent the report of attachment to the
sheriff) can make arrangements for the auction of the attached
articles.
Certificate/Warrant of Intimation – a notice
given to all interested parties of a step taken or to be taken in
the action.
Charge to pay – a formal demand for payment
following a decree or summary warrant. A Sheriff Officer serves the
charge on the debtor. The debtor then has to pay the debt within 14
days.
Debt Advice and Information pack (DAIP) –
this is a leaflet that the creditor must by law provide to the
debtor if they are taking steps to recover the money owed to them
through a court or legal process or if they intend to petition for
bankruptcy.
Defender – this is the person against whom
the pursuer raises the action in court.
Diligence – this is the term used to
describe the form of legal procedure which enables the creditor
(pursuer) to recover payment from the debtor (defender).
Pursuer – this is the person raising the
action in the court.
Redemption – this is the means by which the
debtor redeems the attached article – He has 14 days from the
date of the execution of the attachment in which to do this.
Summary warrant – a legal document signed by
a sheriff allowing recovery of unpaid taxes etc by attachment and
sale, arrestment or arrestment of earnings. An officer of HM
Revenue and Customs must apply to the court for such authority,
certifying that previous demand for payment has been made and that
the amount due remains unpaid at the date of their application. If
satisfied that the petition for warrant is in order the sheriff
will sign it granting his authority to recover the debt by the
following methods
