Bank Arrestments

A bank arrestment in Scotland is when creditors attach funds held in your bank account, with a view to having those funds transferred to them to pay your debts.

However, not all creditors can arrest your bank account and even where they can, there is no guarantee they will succeed.

How do Bank Arrestments work?

Bank arrestments are legally known as Actions of Arrestment and Furthcoming and are a two-stage process.

The first stage is when the funds are attached, which means your bank is instructed to freeze your funds (this is the arrestment phase); the second stage is known as the furthcoming, which is when the funds are taken from your account and given to your creditors.

The second stage can only occur in two situations. The first is when you sign a mandate and authorise your bank to transfer them, which can be at any point after the arrestment. The second is 14 weeks after the arrestment, when providing you have not lodged any objection, the funds are transferred by operation of law, regardless of whether you agree to the transfer or not.

When can creditors do a Bank Arrestment?

Bank Arrestments are a form of diligence in Scots Law, which means they are the are a legal form of debt recovery and cannot be executed by just anyone but must be executed by a Sheriff Officer or Messenger at Arms. As both Sherriff Officers and Messenger at Arms are officers of the Court, this means bank arrestments can only be executed if your creditors have obtained the authority of the Court to carry out the Arrestment.

Authority of the Court

What the authority of the court means, depends on what type of debt is involved. If the debt is a consumer credit debt, like a credit card, overdraft, or personal loan, then the firm that is owed the money must take you to court and obtain a court order known as a decree.

Once the Court has awarded the decree, they must then wait 14 days to allow you to appeal any decision, before applying for an extract of the decree. Once this has been issued they can then provide this to a Sheriff Officer or Messenger at Arms and instruct they execute the arrestment on your bank account, by delivering it to the bank that holds your accounts.

To do this, they must know what bank you have your account with.  This is one reason you may not wish to provide creditors your bank account details where you are struggling to pay your debts.

Summary Warrants and Bank Arrestments

The process for executing a bank arrestment is different where council tax or debts owed to HMRC are involved.

The reasons for this is because these types of debts can be legally constituted using a Summary Warrant, which is a type of court order, but unlike other court orders does not involve a court hearing.

To apply for a Summary Warrant, both local authorities and HMRC make an application to the Court.  The warrant is issued in your absence and without a court hearing.

As there is no court hearing, there is an extra stage the creditors must complete if they wish to execute a bank arrestment.  They first must serve a Charge for Payment.

This is a legal document that is served on you giving you 14 days to pay your debt in full. If you don’t, or if you don’t apply to the Court for a Time to Pay Order, the creditor is then allowed to arrest your bank account.

Summary Diligence

Finally, there is a third procedure that can be used to arrest a bank account and is known as Summary Diligence.

Summary diligence is a special procedure that allows a debt to be registered for preservation and execution with courts.

The summary diligence procedure operates exactly like the procedure for credit cards and personal loans: it is not necessary to serve a charge for payment, but equally it is not necessary to obtain a court order either.  The process of registering the obligation with the courts (in The Books of Council and Session), acts as a substitute for the process of going to the courts to get a decree, although you need to be in default with the debt before the creditor can extract the debt from the register and execute diligence on it.

Not all creditors can use summary diligence, however. It cannot be used, for example, to enforce debts regulated by the Consumer Credit Act, which covers credit cards and store cards, taken out when you are not borrowing as a business. Nor can it be used for council tax and HMRC debts, as an essential component of the summary diligence process is you must explicitly consent to the process being used when you accrue the debt. As both these types of debts are non-voluntary (they are accrued because the law says you meet the criteria for paying them) your consent is not required.

Summary diligence, primarily, is used for business debts, landlord guarantees and credit union loans (which are not regulated by the Consumer Credit Act).

How much can the Creditor take in a Bank Arrestment?

There is no limit to how much funds a creditor can take when they arrest your bank account.  They can seize the full amount owed (including interest and charges) and their legal costs and the costs of executing the arrestment itself.

Minimum Protected Balance

There are protections on how much the creditor must leave in your bank account, however. This is called the Minimum Protected Balance and means £494.01 must be left in your bank account.

When does the Arrestment become Effective?

The important date for an arrestment is the day it is served on your bank. This is the date of execution. The date of execution is important, as only the funds in your account on this date can be arrested. If there are no funds in your account on this date the arrestment fails, even if the next day £1,000, for example is paid into it.

When will a Bank Arrestment Fail?

Banks arrestments will fail where there are no funds in your account. They will also fail if your account is in overdraft of the funds available on the date of execution are less than the Minimum Protected Balance.

Comments

  1. Violet

    Hello
    My company recently (after chasing a client for unpaid invoices for months and followed all the correct simple procedure rules via the Sheriff Court) arranged a bank arrestment on this particular client which was successful.
    I understand that the funds are held for up to 14 weeks or until client signs the mandate releasing the funds earlier. Client has now contacted us to say he wishes to pay the debt from another account and would like us to arrange to lift the arrestment. Please can you advise if this is possible?

    1. Scottish Adviser Post author

      Hi Violet

      Yes it should be possible.

      There is nothing specific in legislation allowing for this; however, if you speak with the Sheriff Officers that you instructed to execute the bank arrestment, they will advise you.

      If I had my creditor hat on (and sometimes I do if I am helping people who are pursuing their employers for non-payment of wages), I would advise you, having got yourself into the position you are in, you would not want to recall any arrestment until the funds are in your account. I am sure your Sheriff Officers will make this point to you.

      However, an easier way would be for the person that has had their funds arrested to sign the mandate authorising the funds to be released to you now. That way no one has to wait 14 weeks.

      If the person who has had their funds arrested then needs funds in that account, they can transfer them into it from the account they are proposing to pay you from.

  2. Martin

    Thank you very much, I will phone the Helpline.
    Martin

    1. Scottish Adviser Post author

      Happy to help Martin. The guys at Business Debt Helpline are very good and knowledgeable and I am sure will take good care of you.

  3. Martin

    An Arrestment was executed on our Business Bank Account just before Christmas. The bank took nearly all the money in our Instant Access savings account, but this was only about a quarter of what we owe the creditor. We had made a payment arrangement and had made one payment (that’s how they got the bank details) but not been able to keep it up. I assume that what you say about the minimum protected balance applies only to individuals, so I am not asking about that, but I would be grateful if you could tell me whether they can do this repeatedly until the debt is paid? The money they took had been saved for essential van repairs so affected the running of the business. We will obviously resume payments as soon as we can but it may not be immediately. Thank you.

    1. Scottish Adviser Post author

      Hi Martin

      Yes you are correct the Minimum Protected Balance only applies to accounts held by individuals, so doesn’t apply to business accounts.

      Also, unfortunately, they can keep arresting the account whilst there is still a debt outstanding.

      You don’t say what type of business it is your operating (limited company, partnership, sole trader etc.) as there may be options available to protect your business depending on the type of business model you have.

      You can call the Business Debt Scotland Helpline which is part of the Money Advice Trust, a registered charity that owns the National Debtline.

      They give free debt advice for businesses in Scotland.

  4. Christina

    Hi can my account be arrested even if I have an arrestment on my wages already coming off my pay before I get it into the bank?

    1. Scottish Adviser Post author

      Hi Christina

      What you are describing is an Earning Arrestment followed by a Bank Arrestment. Basically, double diligence on the same funds.

      This is possible, although it might be possible to argue that the bank arrestment is unduly harsh as the earning arrestment has already been executed. This would need to be decided by a Sheriff.

      However, it is possible to request a Bank Arrestment is recalled or restricted on the grounds it is unduly harsh and this doesn’t cost anything and, hopefully your local advice agency or law centre will help you to do this.

      It may be if you get advice, your local advice agency can appeal to the creditor to release some if not all the funds. This would be quicker.

      You should contact your local Citizen Advice Bureau (you can find them here or local council and ask them who does free, face to face money advice in your area).

      Going forward you might want to look into the Debt Arrangement Scheme (What is the Debt Arrangement Scheme?). This will lift the earning arrestment and prevent any future bank arrestments.

      It will also freeze all interest and charges.

      There are a number of charities and also possibly your local council, that can set this up for you for free.

      It will allow you also to repay your debt at an affordable level, which can often be less harsh than an Earning Arrestment.

      Other solutions that may be suitable depending on your circumstances are Protected Trust Deeds (What is a Protected Trust Deed?) or Sequestration, but I would seek advice from a reputable advice agency first.

  5. Victoria

    I had an advance of universal credit yesterday to pay for essential living costs, whilst my claim is processed. The bulk of this has been taken as an arrestment to my bank account.
    Surely this can’t be legal? I now have a loan from DWP that I cannot use for the purpose it was given.
    Please help

    1. Scottish Adviser Post author

      Good Morning Victoria.

      I am sorry to hear this. Basically, it depends on the circumstances.
      First the first £494.01 should be protected, so your account should not have been left empty.

      However, there is an argument that arresting funds over this amount can also be incompetent where it can be shown the funds are social security benefits only. So, for example, where the only money paid into the bank account are benefits, this may be possible. Where some of the funds are from other sources as well , it may not be possible, as the mixing of funds from different sources change the character of the funds.

      However, even if we can show the funds are purely benefits, this doesn’t mean we will necessarily win as Sheriff Officers argue, that although this was the law prior to 2008, when the law changed then to introduce the minimum protected amount (the £494.01), these common law protections for benefits disappeared. I am aware of a case in Aberdeen Sheriff Court where this is being tested at the moment, but it has not been decided yet.

      A better solution might be first get advice from your local advice agency and see if they can appeal to the creditor to get the funds released on the basis it is a UC advance and for them to take it will cause severe hardship.

      If this doesn’t work then to appeal to the Sheriff on the grounds the arrestment is A) incompetent; and, or, B) should be recalled or restricted on the basis it will cause undue hardship.

      You should contact your local Citizen Advice Bureau (you can find them here or local council and ask them who does free, face to face money advice in your area).

  6. Duncan

    Hi,
    Ive just had £340.00 taken from my bank account and stating this is a Transfer to Arrestment Scottish Courts and Tribunals, to Arrestment Funds Secured £340.00
    Ive had nothing in writing informing me this was going to happen, what reason or why this was going to happen and dont know why its been taken from my account.
    Is this normal practice ? is this legal ? how do I find out why it was taken and where it was paid to ?

    1. Scottish Adviser Post author

      Hi Duncan.
      Sorry to hear this.
      It is called an Action of Arrestment and Furthcoming or bank arrestment. It is carried out by Sheriff Officers or Messenger at Arms on behalf of a creditor who is claiming you owe them money.
      If you contact your bank they should tell you who the Sheriff Officers are. If you then contact them, they should tell you who has instructed them to arrest your bank account.
      Depending on who it is the process varies slightly as to how they arrest your account. If it was for council tax, they should have served you a Summary Warrant and then a Charge for Payment first.
      If it was for a credit card or loan they should have taken you to court to get a court order first, but they don’t need to have served you a Charge for Payment first.
      There is also another process for certain types of debts like credit union loans that is called summary diligence.
      Essentially, the end result is the same. They freeze your account, but must leave you £494.01 in your account, which is the legally protected minimum balance.
      Over and above that they can arrest the full amount they are owed. The funds are then transferred into a fund to be held for 14 weeks. They will send you a form asking you release these funds to the creditors. You do not need to, but after the 14 weeks they are transferred automatically .
      The 14 weeks are to allow you to raise an objection through the courts that the action was not competent or is unduly harsh, or if it was a joint account, but not a joint debt, half the money belongs to someone else. Another argument may be the money in the account was wholly social security benefits, as there is an argument these types of funds cannot legally be arrested.
      You should seek advice about this if you want to explore it as an option from you local Citizen Advice Bureau or law centre. If there is still debt outstanding, you should seek advice also, as there is nothing to stop them doing another bank arrestment or even a wage arrestment or attachment.

      1. Duncan

        Hi again,

        thank you for your reply and advice, this all happened out of the blue with no notification by any means hence why I asked if it was legal to to this, surely someone should have made contact and informed me of what was going to happen, I dont know of any reason for this to have happened, Im retired and the only credit I have is for my car which is paid every month without fail by direct debit, I will contact my bank and ask who it was that made the order.

        1. Scottish Adviser Post author

          Thanks Duncan. In 2007 the legislation was changed with a view to giving people some advance notice, by sending them what is called a Debt Advice and Infomation Package, but those provisions were never implemented as the fear was it would give people advance notice and they would move their money from their accounts.
          The only notice you are guaranteed, therefore, is usually a Charge for Payment (if it’s a council tax or a HMRC debt) or a court summons if it’s an ordinary debt. HMRC can also use a Summary Warrant, which means there is no court order, but still have to serve a Charge.
          It is strange that you have no idea who it could be, so I would chat with your bank.
          There is one other type of bank arrestment that can be used, which is quite unusual and that is called an arrestment on the dependence, which is where someone gets the power to arrest your account before they take you to court, so you may know nothing of it before it happens.
          As I say, sorry this has happened at this time of year, but the bank will give you the information you need as they will have been sent an arrestment schedule from the Sheriff Officers.
          If you need more personalised advice once you know, Citizen Advice Bureaux are good for this. If you have anymore questions, please come back on. Happy to help.

          1. Duncan

            I contacted my bank yesterday on their first day back and they told me there was a letter on its way to me tell me what it was arrested for.

            The letter arrived today from the banks head office in Bradford telling me the money had been arrested and put into another account for up to 14 weeks, there was also the court documents enclosed giving me the details and a phone number to contact them on if needed.

            The documents were from the Perth Sheriff Court and the arrestment related to a court fine from May 2018, where £200.00 of the fine had been paid by direst debit at £40.00 per month and the balance of £340.00 was unpaid. So this was arrested from my bank account, the big problem is that I’ve never been in Perth, I’ve never been to court, I’ve never been fined and the details they have weren’t mine, wrong name and wrong date of birth and wrong person.

            They have said the money will be returned back to my bank account, but what amazes me is how on earth can they just take money from someones bank account without checking they have the right person and the correct bank account?

            1. Scottish Adviser Post author

              Hi Duncan

              I am shocked.

              I have never heard of anything like this.

              It seems incredible this could happen, particularly when you don’t even have the same name.

              I am wondering whether the mistake has been made by your bank or the Sheriff Officers?

              If it’s the Sheriff Officers mistake, the bank would not know, they would just do what the sheriff officer told them, as they are officers of the court.

              It’s a bit like the Police telling you they can do something. Most people would assume they are correct.

              However, if they did make the mistake I would suggest you have a right to not only an apology, but compensation for any financial loss and also upset and distress that has been caused.

              I would imagine any amounts would be modest, but they have denied you access to your own money with no apparent legal authority to do so.

              I would say this may be a case of what is known as, but rarely used as an action in Scotland, as wrongful diligence, a delictual wrongdoing, on the basis there was no proper authority to execute the diligence.

              If it was the Sheriff Officers that made the mistake, I would make a complaint to them and also possibly their professional body, the Society of Messenger at Arms and Sheriff Officers.

              You can in theory also write and complain to the Sheriff Principal at Perth Sheriff Court, who is the senior Judge in the Court, as it’s with Court’s authority (or lack of it) they acted.

              However, I am also thinking if the mistake has been made by your bank. Basically the Sheriff Officers have sent in the correct paperwork for another bank customer and the bank have applied the arrestment to the wrong account. This, without knowing all the details, seems more likely to me. If it was the bank I would definitely make a formal complaint. They will be embarrassed and will try resolve it quickly with you, as they know if they don’t you can take it to the Ombudsman.

              That aside I am glad you got it sorted quickly, which is the important thing for you

              1. Duncan

                Hi,

                It was the Sheriff Officers fault, they admitted it to me earlier on the phone.

                Now I’ve had more time to think about it I am disgusted that its happened and my daughter is fuming at what they did and made a point that what if the amount had been a lot greater and they had emptied my bank account? What if direct debits then couldn’t be paid? The bank have assured me they were only acting on the Sheriffs Document given to them.

                I am also wondering now will something like this affect my credit rating? Will it show up on my back details etc?

                I have to wait now on the person that will reverse everything, but she wont be in her office until Monday.

                1. Scottish Adviser Post author

                  Hi Duncan.

                  You are correct to be annoyed. It occurred on Hogmanay, your were left without access to your funds over the holiday period. Your bank, you may find, have applied a £25 fee for administering the arrestment and you are entitled to be compensated for that, if they have, as you should not be out of pocket.

                  If you do want to make a complaint I would put it in writing to them (they will have an email address on their website) and also copy in the Society of Messenger at Arms and Sheriff Officers outlining what, if any, financial loss you suffered and any distress you suffered.

                  I would point out to them this appears to be wrongful diligence as they had no legal authority for what they did (it may be little used, but they will know this is an actionable delict – wrongdoing – in Scots Law) and be honest with them.

                  Tell them what you think it will take to make things right.

                  You may be happy with just an apology, but if you believe it warrants financial compensation for the upset and worry it caused you, then tell them that’s what you expect.

                  I cannot guarantee you will succeed, as I say I think it will only be a modest amount if they agree to it, but as they say if you don’t ask…. I would also say you are considering making a complaint to the Sheriff Principal at Perth Sheriff Court.

                  It is shocking and clearly a case of maladministration on their part that led to you, a completely innocent party, suffering a detriment.

                  In terms of your credit file, I don’t believe it will affect this, as the bank should not report it as you have not missed a payment on anything.

  7. Alison

    Is there a maximum that Sheriff Officers can take from your bank account?

    1. Scottish Adviser Post author

      Good Morning Alison

      Sheriff Officers can freeze your account for the full amount owed, providing it is over the Minimum Protected Balance. This includes, interest and any legal fees owed, including the cost of executing the arrestment.

      Bank arrestment are not like earning arrestments, they are not just limited to a percentage over the Minimum Protected Balance, but only to the amount they are owed.

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.