Summary warrant: Variation of a conjoined arrestment order
Applying for a variation of a conjoined arrestment order
Where the employer informs you that the defenders earnings are already subject toa conjoined arrestment order you can apply on a form 49 (obtainable from the court) for avariation of that conjoined arrestment so that your debt may also be included.
Before making the application to the court you must ask the employer for details of theconjoined arrestment already in force. You will need details of
- the name and address of the other creditors
- the date and place of execution of the earnings arrestment and
- the amount of the debt specified in the arrestment schedule.
If the employer fails to provide you with this information then you must apply on a(court) form 48 (obtainable from the court) for an order requiring him to do so.
Signature on form 49
Wherever possible the officer who signed the summary warrant application should signthe (court) form 49. If however this is not possible then you must attach a letter ofexplanation to the application.
Where to make the (court) form 49 application
You must make your application for a variation of the conjoined arrestment order to thecourt in the sheriffdom that granted the original conjoined arrestment order. Theapplication should be made by hand, if convenient, or by Hays DX system (or by first classpost if for whatever reason this is not possible).
How the (court) form 49 application will be heard
The application will be heard before the sheriff in whose sheriffdom the conjoinedarrestment was granted. An experienced officer who is fully conversant with the case andthe requirements of the Debtors (Scotland) Act 1987 should attend this 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 conjoined arrestment has been cleared.
What happens when the (court) form 49 application has been granted
When the sheriff grants such an application the employer will be responsible to thecourt for all matters relating to it.
Deductions made from the defenders earnings will be sent to the sheriff clerk whowill arrange payment to each creditor of their appropriate share.
The method of operation and the intervals at which payments will be made to creditors mayvary 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 variation of the conjoined arrestment order has beenpaid or otherwise cleared (by discharge for example) you must notify the sheriff clerk inwriting immediately. If you do not do so the Department will be liable to repay thedefender any excess deductions made by the employer plus interest on that sum.
In addition the defender may apply to the sheriff for an order requiring the department topay him twice the amount of the excess.