When can an account be arrested

When can an account be arrested

• Arrestments in execution (following decree)
• Summary warrant
• Summary diligence
• Arrestment on the dependence

A bank arrestment can only be actioned by the creditor if it has the ’authority of the court’ to do so. The authority of the court depends on the type of debt involved.

Arrestments in execution (following decree)

For consumer credit debts (eg, personal loans and credit cards), the creditor must take the client to court and obtain a decree.1s73A D(S)A 1987 They must wait 14 days to allow for any appeals against the decree before applying for an ’extract of the decree’. Once this is issued, the creditor can instruct a sheriff officer to execute an arrestment on a bank account. They do not need to serve a charge for payment.

 

1     s73A D(S)A 1987 »

Summary warrant

Where debts are owed to HMRC or a local council for council tax, the process for executing a bank arrestment is different. This is because they obtained a court order called a ’summary warrant’, which is issued in court without a hearing. These creditors must issue a ’charge for payment’ before executing a bank arrestment and can only instruct the arrestment after the charge for payment has expired.

Summary diligence

In summary diligence, the process of registering the obligation with the courts in the Books of Council and Session acts as a substitute for the process of going to the court to get a decree. The client must be in default of the debt before the creditor can extract the debt from the register and execute diligence on it. Creditors do not need to serve a charge for payment. See here for more information about summary diligence.

Arrestment on the dependence

Arrestment on the dependence is an action taken by the creditor to freeze the debtor’s assets which are in the hands of an arrestee (usually a bank or building society). The key difference is the arrestment takes place before the action is heard in court. Creditors must make a clear case why the diligence should be granted, but the decision to grant arrestment on the dependence rests with the court. See here for more information about diligence on the dependance.