Commentary on Provisions(1) Exceptional attachment Section 18 – Notice and redemption periods
58.Exceptional attachment is a form of diligence which can be used, in specific circumstances, to recover debt owed by a debtor to a creditor using a procedure which allows the attachment of non-essential assets within a debtor’s home. Section 53 of the 2002 Act provides for immediate removal of non-essential assets in execution of an exceptional attachment order once an attachment schedule has been completed unless the officer considers it impractical to do so, for example where specialist handling is required. Section 53(2) provides that if an article is not immediately uplifted, the officer must inform the debtor or any person in possession of the article when it will be removed. Rule 19.2 of the Act of Sederunt (Debt Arrangement and Attachment (Scotland) Act 2002 currently provides that a notice under section 53(2) must be given to the debtor and to any other person in possession of an article which is the subject of that notice, no later than 7 days before the proposed date of removal. This section modifies section 53(2) to cement that minimum notice period of 7 days into primary legislation.
59.Section 56 of the 2002 Act provides that the debtor may redeem non-essential assets within 7 days of the date on which they were attached. This section modifies section 56 so that, if an article was not removed immediately by the officer from the home in which it was attached, the debtor is entitled to redeem that article within 14 days of the date on which it was attached. Where an article is removed immediately by the officer from the home in which it was attached, the debtor has the same time to redeem the article as the legislation currently allows – i.e. 7 days from the date on which the article was attached.