Bankruptcy and Diligence etc. (Scotland) Act 2007

185 Release of money where attachment unduly harsh S

(1) The debtor may, before—

(a) a payment order is made; or

(b) the money attachment ceases to have effect,

apply to the sheriff for an order such as is mentioned in subsection (2) below.

(2) That order is one—

(a) providing that the money attachment ceases to have effect in relation to—

(i) the money attached; or

(ii) so much of it as the sheriff specifies; and

(b) requiring the [F1 officer of court] to return that money or, where the value of the money has been realised, a sum equivalent to that value, to the debtor.

(3) Where the sheriff is satisfied that, in the circumstances, the money attachment is unduly harsh to the debtor, the sheriff must, subject to subsection (4) below, make an order such as is mentioned in subsection (2) above.

(4) Where the value of the money attached exceeds £1,000 or such other amount as the Scottish Ministers may by regulations prescribe, the sheriff—

(a) may not specify money the value of which exceeds that amount; and

(b) may, where the money attached includes or comprises a banking instrument, authorise the [F2 officer of court] to—

(i) realise the value of the instrument;

(ii) pay to the debtor from the money and, as the case may be, proceeds of that realisation the sum specified; and

(iii) deposit any surplus remaining in a bank account.

(5) In a case to which subsection (4)(b) above applies, the order under subsection (3) above authorises the [F3 officer of court]—

(a) to act as the irrevocable agent of the debtor in relation to the instrument; and

(b) to take any of the steps mentioned in section 184(3) of this Act.

(6) Subsection (4) of section 184 of this Act applies to any steps taken by virtue of subsection (5) above.

(7) Where the amount realised under subsection (4)(b)(i) above is less than the amount specified, the order is to be deemed to have required the [F4 officer of court] to pay the amount realised only.

Textual Amendments

F1 Words in s. 185(2)(b) substituted (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 para. 24(2); S.S.I. 2011/30, art. 3(1)(3), Sch. 1

F2 Words in s. 185(4)(b) substituted (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 para. 24(2); S.S.I. 2011/30, art. 3(1)(3), Sch. 1

F3 Words in s. 185(5) substituted (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 para. 24(2); S.S.I. 2011/30, art. 3(1)(3), Sch. 1

F4 Words in s. 185(7) substituted (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 para. 24(2); S.S.I. 2011/30, art. 3(1)(3), Sch. 1

Commencement Information

I1 S. 185 wholly in force at 23.11.2009; s. 185 not in force at Royal Assent see s. 227; s. 185(4) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10); s. 185 in force at 23.11.2009 in so far as not already in force by S.S.I. 2009/369, art. 3 (with transitional modifications in art. 4)