Bankruptcy and Diligence etc. (Scotland) Act 2007

183 Creditor’s application for payment order

(1) This section applies where—

(a) money has been attached by a judicial officer in execution of a money attachment; and

(b) that money (or part of it) has not been released by virtue of section 182(6)(b), 185(3), 186 or 188(1) of this Act.

(2) The creditor may apply to the sheriff for an order (in this Part, a “payment order”) authorising payment to the creditor out of the money attached of a sum not exceeding the sum recoverable by the money attachment.

(3) An application under subsection (2) above must be—

(a) in (or as nearly as may be in) the form prescribed by Act of Sederunt;

(b) made before the expiry of the period of 14 days beginning with the day on which the report of money attachment is made.

(4) On making the application, the creditor must send a copy of it to—

(a) the debtor;

(b) the judicial officer; and

(c) any person such as is mentioned in section 182(3)(d) of this Act.

(5) Subject to subsections (10) and (12) below, where there is no opposition to the application, the sheriff must make a payment order.

(6) The debtor or a third party who claims ownership (whether solely or in common with the debtor) of any of the money attached may oppose the application under subsection (2) above.

(7) An opposition under subsection (6) above must be—

(a) in (or as nearly as may be in) the form prescribed by Act of Sederunt; and

(b) made before the expiry of the period of 14 days beginning with the day on which the application is made.

(8) Where there is opposition, the sheriff may not make a payment order without first—

(a) giving—

(i) the creditor;

(ii) the debtor; and

(iii) any third party who opposes the application,

an opportunity to make representations; or

(b) holding a hearing.

(9) Where the debtor or, as the case may be a third party, opposes the application on the ground that money attached is not owned by the debtor, it is for the debtor or the third party to prove that fact.

(10) Where the sheriff is satisfied, after considering any opposition or on the sheriff’s own initiative, that there has been a material irregularity in the execution of the money attachment, the sheriff must make an order such as is mentioned in subsection (11) below.

(11) That order is an order—

(a) declaring that the money attachment ceases to have effect; and

(b) requiring the judicial officer to return the money attached or, where the value of any such money has been realised, a sum equivalent to that value, to the debtor or, as the case may be, the person whose money it is.

(12) Where the sheriff is satisfied after considering any opposition or on the sheriff’s own initiative, that any money attached is not owned by the debtor—

(a) the sheriff must make an order such as is mentioned in subsection (11) above restricted to that money; and

(b) after the order is made, the judicial officer may attach other money owned by the debtor and kept at the place at which the original money attachment was executed.