Exceptional Attachment Orders are a type of court order that Sheriff Officers need before they can enter your home and seize your possessions to pay your debts.
They are different from Attachment Orders in that Attachment Orders only allow a Sheriff Officer to take items, such as cars, that are kept outside your home.
Although, one of the least used forms of debt recovery in Scotland, last year 229 Exceptional Attachment Orders were granted, primarily for Council Tax Arrears.
Exceptional Attachment Orders
|Council Tax Debt||HMRC Debts||Non-Tax Debts||Total|
Before a Sheriff will grant an Exceptional Attachment Order, the person you owe money to first must convince him that there are exceptional circumstances.
This, in practice, means the Creditor must show they have already made reasonable attempts to negotiate the repayment of the debt with you. They also must have served on you a Charge for Payment, giving you 14 days to repay the debt in full.
They also must have instructed Sheriff Officers to try and recover the debt first using less intrusive methods first, such as:
- Executing an Earning Arrestment;
- Serving a Bank Arrestment; or
- Executing an Attachment Order.
If the Creditor can show, however, they did not use these methods as they would not have resulted in them recovering their reasonable expenses and £100 towards the debt, they can be excused from not doing so.
They must, however, also show, that there is a reasonable prospect that if the Exceptional Attachment Order is executed, there will be non-essential items that can be attached in the home and if auctioned, can reasonably be expected to raise the costs of carrying out the Exceptional Attachment Order and £100 towards the debts.
What are Non-Essential Items?
Non-essential items are items in your home that Sheriff Officers cannot take to be sold. For a full list of Essential Items that cannot be attached, see here.
What will the Sheriff Consider before granting an Exceptional Attachment Order?
Sheriffs will consider several factors, such as:
- The nature of the debt owed, including whether it is a tax debt or a trade debt;
- Whether you live in the home;
- Whether you operate a business from your home;
- Whether you have received money advice;
- Whether you have previously had a Time to Pay Direction or Order and it has lapsed because you missed payments;
- Whether you have or have had an agreement with the creditor for the payment of the debt;
- Whether there is any evidence of any non-essential assets that could be taken, what their value is and where they are located;
- Your financial circumstances; and
- Whether you have applied for a Debt Payment Programme under the Debt Arrangement Scheme; or if you have previously had one, why it was revoked.
Prior to making an order, the Sheriff can instruct that you first should receive a visit from a money adviser to give you advice on your debts.
Sheriff Officers Powers of Entry
Sheriff Officers have a power to open lock and shut fast places.
This means if you lock the door or are not in, they can get a locksmith to come and open it. As they are executing a court order; if you try an obstruct them, they can call the police and you can be arrested and possibly face charges of Contempt of Court.
Once they have had an Exceptional Attachment Order granted, they normally must give you at least 4 days’ notice of when they intend to visit your home (Sheriff Court judges can dispense with this requirement if requested to by the Creditors. You do not need to be told beforehand that the Creditor has asked for this requirement to be dispensed with).
Sheriff Officers, however, should not attempt to enter the property if they know there are only children under the age of 16 in the home; or people who are not likely to be able to be able to understand the procedure being carried out because of their age, knowledge of English, mental health or because of a mental or physical disability.
There are certain days and times of days when attachments cannot be carried out, these are:
- A Sunday;
- A day which is a public holiday
- Attachments also should not begin before 8 am or after 8pm, or be continued after 8pm, unless prior permission of the court is obtained.
Acts before an attachment is executed
Anyone, which includes the person that owes the money, who moves, sells, gifts or destroys an item that could be subject to an attachment, after the Exceptional Attachment Order is made, but before it is attached, may be found to be in breach of the Order. They could be held liable for the value of the item and found to be in Contempt of Court.
Removal of items that are attached
When a Sheriff Officer carries out an attachment, he can only attach items that are not deemed to be essential. He also should also not attach items that are likely to have a sentimental value, such as a wedding ring, where the value of those items does not total £150.
Where he does attach an item, he should place on it a value that it would achieve if it was sold on the open market. If he wants to, he can obtain a professional valuation for the item.
He also should also arrange to remove the items from the home immediately, or if that is not possible as soon as possible after the attachment is executed.
Where an item is removed, however, it should not be auctioned until at least 7 days after it is removed. This is to allow the debtor to redeem the item at the value placed on it, or to object to the attachment on the grounds it is unduly harsh.
My Company, based in Scotland, undertook work, on behalf of a Sole Trader for a third party. On completion of the work we raised an Invoice but payment has never been made despite the Sole Trader being paid by the third party. We have raised an action under The Simple Procedure, with a Charge for Payment being served then a Bank Arrestment, but no money has been paid by the debtor. We have never been informed that it was the correct Bank and if there was any money in the account.We are now considering an Attachment Order but we also notice that there are Exceptional Attachment Orders that can be raised. Who actually carries out these Exceptional Orders and what is the cost involved. During the process up to the Bank Arrestment no one has talked to the debtor to try and arrange a payment plan to enable the debt to be paid. Any advice would be greatly appreciated. Thank you
You should normally be told by the Bank after 3 weeks from a Bank Arrestment being executed whether any funds have been attached. You should ask the Sheriff Officers if they have received any notifications.
All you will normally be told is if funds have been attached and if so, how much. Alternatively, they may tell you no funds have been attached.
You won’t receive any further information than that. You won’t be told if they held an account with that bank or not. Also you won’t be told why no funds were attached. It may be the account was in overdraft, or if it had funds in it, it may have been below the £529.90 Protected Minimum Balance.
It may be you have been unlucky in your timing. If the arrestment had been executed on another day, it may have been successful, as there may have been more funds in the account.
This underlines the most important thing you can do before you begin debt recovery and that is think about what you know about the person.
Do you know where their account is held?
Do you know on what day they get paid?
If you are thinking about attachment of property outside the home, do they own a car?
Is it their car or is it registered in someone else’s name? Is it subject to car finance, like a Hire Purchase, Conditional Sale or PCP agreement?
If it is, they don’t own it, so any attachment will fail.
Unfortunately, Exceptional Attachment Orders can be more difficult. There has to be a further application to the Court made by you for the order. You will have to show you made reasonable efforts to recover the debt by other means, or if you didn’t, that was because it was unlikely to succeed.
You need to show that if the Exceptional Attachment Order is executed, it will raise sufficient funds to cover the cost of carrying it out and also £100 towards the debt.
This isn’t easy to do, as it suggests you need to have knowledge of whats in the home. Also so many items in the home are protected (See Here).
The problem is all this will cost you money and is speculative: you may succeed, but equally you may not.
Also do you know the financial situation of the person you are pursuing?
If they lack the means to pay you, you may be throwing good money after bad. Also they can currently register a 6 month Statutory Moratorium for free at the moment because of Covid 19 Crisis, that protects them from Sheriff Officers. (You can check the Register here).
Debt recovery is always difficult and risky. You have not been paid, so when do you stop risking losing more money?
You need to ask yourself what you know about the person and weigh up the risks of taking any action.
However, you do have a decree, which means the debt won’t be prescribed (written off) for at least 20 years.
Also this may not be the best time to try and recover it, as I think its unlikely any Sheriff would allow an Exceptional Attachment Order under the current social distancing rules.
In terms of some other options you may have. Some debt collectors may agree to recover the debt for you without charging you, but for a % of what they recover if anything. That will possibly just mean sending out letters and trying to phone the person. This can sometimes work.
Also you could speak to a lawyer who may not charge too much to send them a letter and advise on other options, such as an Inhibition, if the person owns their home. This can be quite effective, but is a more long term strategy.
I think, being honest, I would be prepared to take a long term approach. With the current crisis, lots of people are being impacted and I get that may include your business too. Unfortunately, these things tend to have a knock on effect. However, the law at present, because of Covid, is not geared towards Creditors getting their money back.
However, a lawyers letter, I believe may be the least expensive and also possibly the most likely to succeed option you have.
It is also on you to try and contact the debtor to try and recover the money, but a lawyer acting on your behalf may have more success at this, as its less personal.
Forgot to mention only Sheriff Officers can execute Exceptional Attachment Orders, but there needs to be another hearing in front of the Court first, so you are best seeking advice from a Lawyer. You can apply for the Order yourself from the Court, but as its quite intrusive a procedure, I would expect a Court would be reluctant to grant it without a lawyer being involved. You can then give it to a Sheriff Officer to execute.
If an exceptional attachment is made do sheriff officers have to prove ownership of items as being the debtor’s as opposed to other occupants. I live with a partner, who has no connection to any of my debts, in their house (I am not on any title deeds) and own none of the items other than personal clothes. Two years ago I signed all my assets over to Crown as part of confiscation order leaving me with just the proverbial shirt on my back and having had no job, income or bank accounts since then I have not been in a position to acquire any new assets. Having owned many of the non-essential contents for decades it would be very difficult for my partner to prove proof of ownership through payment as receipts will likely no longer be available. None of the Explanations I have seen on the subject make any reference to ownership, simply to what is “in the home”. Similarly the criteria for being able to show reasonable prospect for there being attachable items gives no explicit qualification (from what I have seen) that the items are owned by the debtor rather than by another occupant. As avowed I have no assets so cannot simply pay any demands and it would seem unfair that the only way to protect my partner’s assets would be to leave them and deliberately make myself homeless. The debt is not tax related and does not meet the current minimum criteria for creditor enforced sequestration.
Before an Exceptional Attachment Order can be granted, there has to be a hearing in front of a Sheriff to determine whether it is likely to succeed in attaching sufficient assets for it to go ahead.
Obviously, it is important to attend that hearing and dispute whether there will be sufficient assets. However, the Creditors can lead evidence to show there would be. That may be someone who has been in your home, for example, like a Sheriff Officer or in theory a police officer. They may also have observed stuff through your windows.
I suppose also it could include evidence of purchases.
Its important to remember these are not criminal hearings, so the level of evidence does not need to show beyond reasonable doubt.
In relation to proof of ownership,in Scots Law there is a presumption that if you are in possession of something, you own it. Hence the old saying, possession is 9 tenths of the law.
You would be in possession of something if it is in your home, although I fully accept it could also be your partners.
To be honest, I think Sheriff Officers may take items they believe are yours, unless you can prove otherwise, at the time, to their satisfaction and then remove them.
It would then be for your Partner to appeal to the Court within the necessary time limits and ask the Court for them to be released,by providing proof of ownership.
You could provide evidence that you had gifted these goods over to your Partner, but this would not be an unusual argument for someone to make, so it would be for the Sheriff to decide if this was a genuine transaction or a contrived one, designed to defeat the claims of your creditors.
There is also a presumption against gift in Scotland, so it would be for you or your partner to satisfy the Sheriff there had been one.
Finally, in relation to a Creditor Petition for your Sequestration. The minimum debt level that need at present is £10,000, but that is a temporary rule for Covid 19, so come the 31st March 2021, could revert back to £3,000.
One option you could look at, at present is a Statutory Moratorium, which may give you some protection from Sheriff Officers.
You may also want to look at what items are protected and which are not. What can Sheriff Officers Take?
I am a home owner with a repayment mortgage and the property has no equity. Can they force me to sell my home when it’s clear it will not cover any of the debt?
Who would advise me correctly, as there are so many scammers out there?
I was wondering if it would be better to go with sequestration, but I don’t want to end up homeless, as the Leander owns the property until it is paid.
I don’t give personalised advice, as I obviously don’t know your full situation and try to not get into too much detail, as these comments are public.
In terms of who can sell your home in Scotland. Only those whose debts are secured over your home, like mortgage providers, or Trustees in Bankruptcy and Protected Trust Deeds.
Basically, you are, therefore correct to be cautious, as you do have an asset, in that you own your home (you are the owner, albeit it has a security over it securing your mortgage).
It really depends on the level of your debt what is the correct option. If your unsecured debt, like credit cards, loans, council tax etc. Can be repaid in a reasonable time frame, the Debt Arrangement Scheme is a viable option and will not risk your home, even if you have equity, providing you maintain your mortgage payments.
Bankruptcy can be more risky, as can Protected Trust Deeds, as your Trustee would have an interest in your home, and in theory could force a sale, but only if there is sufficient equity to make it worth their while. The problem is they can hold onto that interest until it is worth their while.
However, in Scotland where you enter a personal insolvency arrangement and own a home, the practice is the Trustee should enter an agreement with your at the outset as to how the home will be dealt with. This is to reduce the risk of you losing it and to allow you and your creditors to know at the outset, how it is going to be dealt with.
This agreement has to be registered with the Accountant in Bankrutpcy, who runs Scotland’s Insolvency service.
These agreements normally, in the case of a Bankruptcy, where you have zero equity agree that the Trustee will relinquish his interest in your home for £500, or some may say a £1,000. Now you cannot pay this during your bankruptcy, as if you have money you have to pay it to your Trustee during your Bankruptcy. The deal may be, therefore, you will pay it after you have made your 48 monthly payments to your Bankruptcy.
Alternatively, it may be agreed a family member will pay it for your during your bankruptcy (this is called a third party buy out).
All good and well. Providing you have no equity. Also providing you stick to the agreement.
If you don’t stick to the agreement, they can revalue your home at a later date, so although it may not have equity, you could have later and if you cannot pay that, they can force you to sell your home.
Where you do have equity, say £10k, a Trustee may agree before you go bankrupt they will disregard £5k of it (to reflect the cost for them having to sell your home if they had to).
If they agree to this, it may just be £5k that needs to bought out during the bankruptcy or at the end. Its the same deal though: don’t stick to it and they can revalue your home later (and it can go down or up in value, but I would not advise taking that gamble).
So, I would suggest if you are thinking of going bankrupt you may want to appoint your own Private Trustee, as you can discuss this and agree things before you sign anything.
If you appoint the Accountant in Bankruptcy (AIB), you don’t get this opportunity until after you are declared bankrupt.
If you had zero equity and did want to appoint the AIB, I would get your own valuation done first (not a homebuyers survey, just a straight valuation).
You would want to use a reputable surveyor to give you a value and also get a redemption figure from your mortgage provider, so you can be as certain as you can about whether you have equity or not.
There are situations you may want to appoint the AIB: you have no equity in your home and cannt afford to make a monthly contribution to your Bankruptcy, so the cost of the solution is paid by the AIB (but they would want something for your home).
The AIB usually will accept £500 or £1,000 where there is no equity, but tend to, in my experience want 100% equity realised where there is anything more than zero equity.
They also don’t tend to disregard any equity like private Trustees do by taking a more commercial approach. The AIB are driven more by minimising the cost to the public purse and getting as much back for creditors as possible.
Trust Deeds are similar in many ways, but only private Trustees can do them. Legally an agreement should be entered into at the outset as to how the Home will be dealt with.
Negative equity or zero equity is dealt with as in bankruptcy, with the trustee seeking £500 to £1,000.
Where there is more equity, Trustees can have more discretion in a Trust Deed than in a Bankruptcy, but the same applies regarding any agreement.
They are only good if you stick to them, otherwise they can revalue the property.
Extending Trust Deeds for a year or two is very common to allow you to buy out the Trustee’s interest in the home.
Finally, all this is dependent on you continuing to pay the mortgage during any solution. Stop that and the mortgage provider can call up the security.
As to where you get advice.
Well you have a choice.
I have a list of all Scotland’s free local debt advice agencies (Get Advice – see here), however, you can also contact a private Insolvency Practitioner (IPs).
Many of them also do the Debt Arrangement Scheme for free and won’t charge you a fee (they recover their costs from the Creditors).
In every Debt Arrangement Scheme, no matter who does it, all Creditors must pay 22% (2% to the AIB and 20% to the Payment Distributor). This is a cost to them, not you. Everything you pay reduces your debt.
Private IPs can also do Bankruptcies (and as I said, when you have a home and you expect you will have to pay something to your bankruptcy, appointing a private IP can be good as you agree everything beforehand).
Privage IPs are also the only people that can do Trust Deeds.
So, my advice is if you want, you can use my list of free advice agencies. If you want a private Trustee, just make sure that it is an Insolvency Practitioner you call, not a lead generator who will pass your details onto a licenced insolvency practitioner.
I hope also, I have given you enough information, so that you know what to ask and what your options are.
There is also nothing wrong with taking advice and then getting advice from someone else and comparing it.
If you do get a chance, I appreciate any feedback you can provide via my Trust Pilot Page.
I had the sheriffs come to my door and I rang up to ask to set up a monthly payment plan.
He has said he wont accept that. Is he right?
I’ve sought help from a debt company and they have sent me a email with earnings and an offer of payment to them, which I have emailed across.
Can he still refuse payment plan after this
Basically they can refuse your offer, as it is for them to decide what is acceptable to them.
If they do refuse it, they may choose to use legal debt enforcement procedures against you, like wage arrestments and bank arrestments.
However, you have said you have made an offer to them through a debt firm? They can still refuse this also.
You may be wiser seeking help from your local Citizen Advice Bureau or Local Authority Money Advice Service.
They may be able to negotiate on your behalf.