Summary warrant: Exceptional attachments: Applying for an exceptional attachment order
Debt management office action
An application for an exceptional attachment must be made on a form 22 (Schedule 2 to the Debt Arrangement and Attachment (Scotland) Rules 2002 - SI560/2002).
When making such an application you are also required to provide an extract of the summary warrant. To do this you must provide a photocopy of the form C96 and the schedule entry (form C95).
Note: It is likely that the schedule (form C95) will contain several entries. In the circumstances you will need to delete all other entries other than those of the defender’s from the schedule.
Sheriff clerk action
On receipt of the application and on being satisfied that there are exceptional circumstances the sheriff clerk will
- fix a date for a hearing and
- intimate (advise of) the application and also send a form of service (form 23) and a copy of the declaration of financial circumstances (form 24) to the defender.
Attendance at hearing
The hearing date will be at least 21 days after the date of your application. You must either attend or be represented at this hearing. If you do not attend the sheriff may dismiss your application.
Declaration of financial circumstances by defender
Where the defender wishes to make a declaration of his financial circumstances he must do so no later than 10 days before the date of the hearing. The sheriff clerk will send a copy of this declaration to you.
Considerations by sheriff before granting an exceptional attachment order
In considering whether to make an order the sheriff will take into account
- the nature of the debt (in particular where the debt incurred refers to any tax or duty or to any trade or business carried on by the defender)
- if the defender resides in the dwellinghouse specified in the application
- if the defender carries on a trade or business in the dwellinghouse
- if money advice has been given to the defender
- whether any agreement was entered into for settlement of the debt and
any declaration or representation made or document lodged by or on behalf of the defender which relates to
- the existence of any non-essential assets owned by the defender and where they exist their value or
- the defender’s financial circumstances.
The sheriff may also make
- an order for a visit to the defender by a person authorised to give money advice or
- any such other order that he thinks fit before deciding to grant an exceptional attachment order.
Where the sheriff makes an order for a person authorised to give money advice to visit the defender, a report of the visit has to be lodged with the sheriff clerk no later than 3 days before the hearing date. This report has to be made on form 26 and the sheriff clerk should send you a copy of the report. (The Debt Arrangement and Attachment (Scotland) Rules 2002 (SI560/2002 refer.)