Challenging an attachment
There are several grounds where an attachment can be challenged.1Sch 1 (Appendix 1) AoS(DAA(S)) 2002 Some of the common grounds used include: •the fixed value of goods is too low;
•the release of a vehicle from an attachment;
•the attachment is invalid;
•the attached goods are jointly owned;
•the attached goods belong to someone else.
When a client takes the completed forms to the court, the sheriff clerk sets a hearing date and gives the client and the creditor an opportunity to make representations to the court. This also has the effect of postponing the auction until this is settled. The sheriff has the final say. There is no cost to the client to challenge an attachment, although if they lose and the creditor has costs associated with defending the action, they may ask the court to fix a hearing to allow expenses to be charged to the client.
The forms needed are in Schedule 1 (Appendix 1) to the Act of Sederunt (Debt Arrangement and Attachment (Scotland) Act 2002) 2002.
Fixed value of goods is too low
If the client believes the value fixed by the sheriff officer to any attached goods is too low, they can appeal this up to the date of the auction by completing Form 4. If the sheriff agrees with the client’s assertion, the attachment ceases; if not the auction goes ahead.2s23 DAA(S)A 2002
Release of a vehicle from attachment
A client can apply to the courts for the release of their attached vehicle.3s22 DAA(S)A 2002 This must be done within 14 days of the attachment and the car must be valued at £3,000 or less. The client can claim the sale would be ‘unduly harsh’. This is not defined in the Act, but it could be argued that the car is required for work or hospital appointments. If the attached vehicle is valued at more than £3,000, the sheriff can order the immediate sale of the car and state that £3,000 be returned to the client (to allow them to buy another car). If the car is not sold within 14 days of the order, it is returned to the client and excluded from the attachment. It cannot be attached again. A client must complete Form 11.
The attachment is invalid
At any time up until the auction, a client can make an application to the court to have the attachment declared invalid.4s26 DAA(S)A 2002 This can be on the grounds that there were procedural irregularities – eg, the attachment was carried out on a Sunday. The sheriff can also order that an attachment is invalid, without the client having made an application, if they are satisfied that the attachment has ceased to have effect (generally out of time) or the attachment was invalid due to procedural irregularities. Form 13 (Invalidity and Cessation of Attachment) should be completed.
The attached goods are jointly owned
Jointly owned goods can be attached by sheriff officers. The person who jointly owns the goods can (up to the date of the auction) pay the client’s share of the value of the goods attached to the sheriff officers, which transfers ownership to them and releases the goods from the attachment. The client or the joint owner can also argue that attaching the goods would be ‘unduly harsh’ to the joint owner and, if accepted by the sheriff, the attached goods would be released from the attachment. In both instances, sheriff officers can execute a further attachment on the client. Form 20 is used when the claim is that the attachment would be unduly harsh to the joint owner.
Attached goods belong to someone else
If a person claims to own the goods attached (and before the auction occurs), they can challenge the attachment of those goods.5s34 DAA(S)A 2002 This can either be done when the attachment is being carried out (and the sheriff officer is satisfied the goods they are about to attach belong to someone other than the client named on the attachment schedule) or by the owner using Form 18 to challenge the attachment of those goods when they have already been attached. If the sheriff is satisfied these goods belong to someone else, they are removed from the attachment schedule and sheriff officers can go back to the client’s address to further attach other goods.