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Dilligence Flashcards

1
Q

What are the 4 ordinary delligences

A

Attachment
Atrestments
Inhibition
Adjudication

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2
Q

Stair 4.47.1 def of dilligence

A

Decreets would be of no effect but as bees withiut stings if the law did not fix the kinds and forms of execution thereof

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3
Q

When were money attachments introduced

A

Part 8 of the 2007 act

was also DUE to abolished adjusdications and replaced with land attachments but has not been done

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4
Q

What does diligence do gen

A

It allows creditors to freeze or size
Individual assets
On first come first served basis

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5
Q

In the bankcrupcy process what is the proceedure

A

Procededure is for all cred
All assets are taken over
Distribution is on basis of equality
In bankcrupcy process debtors affairs are wound up by a trustee/liquadator. NO SUCH PERSON PERSON EXISTS IN DILLIGENCENCE

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6
Q

Can dilligence be followed by sequestration/ liquidation

A

YrsYes and NOTE ONCE BANKRUPTCY BEGINS DIL CEASES TO BE COMPETENT

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7
Q

Who carries out dil

A

Court officers: sheriff officer or messenger at arms

2007 act s57 – judicial officer to replace sherrif ect but never implemented ed

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8
Q

effect and priority of dil

A

except inhibition dil gives cred real right of security.
debtor date inhibition = reg

attachment = sherrif officer going to property identifying ceased assets

ARRESTMENT = debt funds = depends on the real right not back dated to the date it was not the date the items were ceased it was the date it was aimed at.

carried out- on assets owned by the debtor

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9
Q

erkine 3.6.1

A

it is the priority of the dil used upon the debt which alone the cred to a prefernce

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10
Q

mitchells v fergusson

A

PROPERTY LAW delivered conveyed 2 bros mitchels adjudication is carried out before conveyancing diligence will take priority

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11
Q

burnetts trustee v grainger

A

ptr coulter rev grainger church of scot, going to live in burnett. Graingers disp was lost and not REG. BURNETT went BUST. burnett still neg. notice of title sent to grainger formal conveyancing title against property

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12
Q

s35-36 debt arrangement and attachment

A

attachment

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13
Q

s. 191-192 BAD act

A

money attachment

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14
Q

are there real rights or personal rights encumbering the assets/ debtor

A

diligence done first always rank first.
ROLE of equalisation
if their is a right in security vs diligence.

which ever was the real right will prevail.

unless if there is a floating charge then it prevails unless effectively dilligence

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15
Q

part 3 of 2002 act

A

ATTACHMENTif assets in house then only attached in pursuance of exceptional attachment order.

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16
Q

s.48 2002

A

ATTACHMENTif trade or business in the house then s.48 is factored in. the value of attachable assets must be less thn value of debt and expenses other wise cannot attach

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17
Q

sch 2 2002

A

ATTACHMENTlists all the non essential items that cannot be attached

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18
Q

s.15-19 2002

A

ATTACHMENTif assets are outwith the dwelling house. and sherrif officier can open lock fast places.

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19
Q

s.45 2002

A

ATTACHMENTdefines dwelling house to not include the garage./ mobile home cannot be arrested

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20
Q

s.17 2002

A

ATTACHMENTattachment reported to court within 14 days

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21
Q

s.21 2002

A

ATTACHMENTeffect of attachment is that the debtor cannot remove or destroy attached item

if they do this a submission can be made to the sherrif court to argue that debtor = contempt of court

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22
Q

s.19 2002

A

ATTACHMENTthe debtor can make payment to reddem attached items. failure to do so= power to cred to remove assets and auction

creates a real right will have priority in sequestration and liquidation generally unless have not reg 60 days BEFoRe SEQUASTRAION

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23
Q

s.27 2002

A

ATTACHMENTthe auction is public

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24
Q

s.31 2002

A

ATTACHMENT the surplus of the sale goes to the debtor

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25
Q

s.173 2002

A

the interim attachment

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26
Q

define interim attachment

A

same as attachment but is sought as soon once the cred has raised the action against the debtor, not when he has a decree against him

it is NOT competent to attch items in DWELLING HOUSE with interim attch.

these items can be attch but not sold until end of court action and debtor gets an attachent

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27
Q

s.175 2002 BAD

A

this is a form of dil that attaches MONEY belongin to debtor - can lead to payment orders

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28
Q

part 8 2007 BAD

A

MONEY ARRESTMENTCash has only been able to be seizes since 2009

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29
Q

s.174 BAD

A

MONEY ARRESTMENT a charge for payment is required and where the debtor is an individual a debt advice and info pack is NEEDED

a money arrestment cannot be arried out against case in dwelling house

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30
Q

S.176BAD

A

MONEY ARRESTMENT

money arrestment cannot be carried out on a sun before 8am or after 8pm

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31
Q

177BAD

A

MONEY ARRESTMENT the officer of the court will go into premises and attach and remove money found there money being placed in a bank account within 14 days of the money attachment taking place

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32
Q

182BAD

A

MONEY ARRESTMENT crd can apply to court must happen within 14 days of report being made to court

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33
Q

183 BAD

A

MONEY ARRESTMENT

a payment order

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34
Q

187 BAD

A

MONEY ARRESTMENT

if not money attachment ceased to have effect and money must be returned to debotr

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35
Q

arrestment when is it used

A 
it is used mostly against incoperal movables 
1. money and incoperal
2. goods in pos of third part
3. arrestment of ships and cargo
4. arrestment of earnings
arster owes the arster money( the arrestee will be owed money by someone else)  example 
x owes 5 to Y 
xowed 5 by Q
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36
Q

ordinary arrstment

A

arrestment tripartite relations
the creditor- THE ARRESTER
the debtor- THE COMMON DEBTOR
the third party owing the obli to the debtor- the ARRESTEE

arstee owes the arster money( the arrestee will be owed money by someone else) example
x owes 5 to Y
xowed 5 by Q

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37
Q

s.73A-73T debtors scot 1987

A

arrestment is in the execution

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38
Q

procedure

A

arrestment in execution will follow a decree ir doc if debt a schedule of arrestment then prescribed on arrerstee

sherrif officier gets notice of arrestment to arrestee. happens at ANY TIME. there is meant to be a wintess

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39
Q

s.73J debtors scot 1987

A

arrestment. service @ head bank vs arrestment at branch.- former attach all acocunts held with that bank

latter attsch only accounts in that bank.

expiry of attached funds gor to the cred 14 week period court convey that a debt is due

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40
Q

tantum et tale principle

A

arrestment
arrestment cannot habe the effect of making the debtors pos any worse.
takes into account the defences available to the debtor by firthcoming

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41
Q

aquirenda

A

arrestment
new contract cannot be arrested only arrest rights that happen.
separation between future and contingent rights
FUTURE= CAN BE ARRESTED WITHIN A 6MONTH TIME PERIOD

CONTINGENT= CANNOT BE ARRESTED

42
Q

McDonald v mize

A

arrestment It may be statd without exception that the arrestment will be laid in the hands if the parties who would have been def in the action for payment of the sum arrested

CAN ARREST SHARES NOT MONEY

43
Q

s.73E debtors scot 1987

A

arrestment will attach the lesser of
1. the sum sum due to debtor OR the sum due from debtor to creditor plus expenses

coperals not gen arrested if there are movables

44
Q

s.73 Fdebtors scot 1987

A

arrestment if the arrestment if an individuals bank account has been prescriped a min balance it cannot be arrested - 494.04 is current limit

45
Q

effct of arrestment

A

arrestment once schedule served arrestment has a freesing effect on the debtor

46
Q

LONROW

A

owed money to news agent sdebt in£10k local news agent didn’t get paid. served notice on lead office bank acocunts. reported on stock exchange that wasn’t able to make payments

47
Q

S.76 G debtors scot 1987

A

ARRESTMENT
The arrestee has a duty to disclose whether the arrestment has successfully caught any funds and the value of those funds within 3 weeks of the arrestment

arrestment creates a real right in incoperals

48
Q

S.73Jdebtors scot 1987

A

ARRESTMENT
once the arrestment is made the funds arrested will automatically be released from arrestee to cred after 14 weeks from the service of that decree or the arrestment

49
Q

S.73Ndebtors scot 1987

A

ARRESTMENT

if there is an objection to the funds arrested being released to cred then there will be a hearing

50
Q

S.73 Ldebtors scot 1987

A

ARRESTMENT an objection to funds arrested being released

51
Q

HOW ARE ARRESTMENTS PRIORITISED?

A

ARRESTMENT
they are prioritised through prior tempore potiore jure rule
there are problems of double distress (multiple arrestments) this can lead to the fund in medio being the subject of an action of multiple poinding so that the court decides what each cred receives

52
Q

MORRISON V INTEGER SYSTEMS

A

ARRESTMENT

arrestment gives arrester preference in subsequent sequestration of debtor subject o the 60 day rule

53
Q

73 Edebtors scot 1987

A

ARRESTMENT were goods were stored by a third party (ie a warehouse). attachment was also competent though the intro of interim attachment rendered any benefit redundant

54
Q

ADMIND AND JUSTICE ACT AND RULES OF COURT OF SESSION CH 46

A

ARRESTMENT

ships are arrestable NOT attachable. cargo not attachable but ONLY arrestable

55
Q

S.47-50debtors scot 1987

A

ARRESTMENT

creditor serves a single arrestment which attaches future earnings

56
Q

S.90debtors scot 1987

A

ARRESTMENT before being available the cred must have been served with a charge for payment

57
Q

S.47 debtors scot 1987

A

ARRESTMENT

debt advice info package

58
Q

S.49debtors scot 1987

A

ARRESTMENT

arrestment served on employer employer must deduct sum in accordance

59
Q

SLATER V GRAMPIAN

A

ARRESTMENT

if cred is employer can arrest in own hands 14 days to pay

60
Q

73(2)(3)debtors scot 1987

A

ARRESTMENT

private pensions covered by scheme but social sec rights including state pernsion ARE UNARRESTABLE

61
Q

mac million v tlieth

A

ARRESTMENT
Sieze diligence PREVAILS OVER OTHER DILLICENCES.

prevails in insolvency.

diligence v floating charge decision confirms if you get a diligence that its carried out prior to the floating charge it takes priorty! overturn LORD AV V BANK OF SCOT

so bare arrestment will take priority

62
Q

arrestment example1

a = cred

bowes money to A

C OWES money to b

define their posidiotns

A

A= 3 party right as creditior
B =debtor
c= debtors debtor

63
Q

arrestment example 2
if A is owed money by b and b is owed money by c.
but before A could arrest b assigns right to d. d then intimates to c. would this confer assign rights on to D

A

yes a slong as D had intimated assignation to c before a had arrested b. then D would have had an assignation right

64
Q

define inhibiton

A

dil that affects the debtors heritable property
affects all debtors heritage- not merely specified subjects

does not give cred real right
is a freeze dil makes priority lit.

65
Q

s.146(1)BAD2007

A

inhibition can be used to enforce decree or doc debt

66
Q

147BAD2007

A

where the debtor is an individual a debt info package must be served at the same time that the schedule of inhibition is served

67
Q

148BAD2007

A

inhibitions must be reg in the reg of inhibitions. it is reg along with the execution of service of inhibition

68
Q

155 titles to land consol act 1868

A

an inhibtion will from the day it is reg unless notice was reg in ADVANCE and the inhibition is reg 21 days thereof

69
Q

149BAD2007

A

date of serving the schedule of inhibition = effective

70
Q

44(3) CONVEYANCING SCOT ACT 1924

A

inhibitions cease to have effect after 5 years

71
Q

157 BAD2007

A

inhibiton cease to have effect after debt paid

72
Q

s.157 titles to land consol 1868

A

effects inhibition affect all heritiable property of the debto in scot at the date inhibiton effective NOT DATE HERITAGE ACQUIRED

73
Q

160titles to land consol 1868

A

the inhibition prohibits the debtosr from conveying or otherwise granting a deed affecting the property

74
Q

playfair investmenrs v mcelvogue

A

strikes voluntary acts of the debtor.

missives are not voluntary acts thus inhibiton cannot stop it

inhibition can still be implemented after contract completed provision clear search on the reg will identify if a property has an inhibition

75
Q

park petrs

A

INHIBITIONif they take place on the same day Mr Thomson ruled that the original documents – not faxes – had to be exchanged (or at least be confirmed as being held on behalf of the other solicitor’s client) for the missives to be legal and binding.
The ruling is based around the principle of Scots law that provides that missive letters must be delivered in order for them to be effective and binding. This case held that the delivery of principal documents is fundamental and that the faxed delivery of documents will not suffice

76
Q

159titles to land consol 1868

A

inhibiton
goodfaith purchesors paying adequate consideration are not affected by inhibhition

heritiable cred who has security that pre dates the inhibiton vs a heritable cred that post dates inhibtion

77
Q

adjudication def

A

affects heritable and intellectual property rights
court of sesh action against specific heritable property MUST be reg in LAND REG

the cred is the ADUJUDGER and obtains a judicial right insec over property.
the cred CANNOT sell but has the power to REMOVE the debtor and let.
if already let the adjudge tkes rent by maMAILLS AND DUTIES

DEBTOR REMAINS OWNER

78
Q

WHAT HAPPENS IN ADJUICATION WHERE THE DEBT IS UNPAID FOR +10 YEARS

A

the adjudge can require ownership by a declarator.
adjudge unlikely to have to wait 10 years because the debtor may pay or
rents may pay off debt
or prior heritable cred may sell OR debtors sequestration

79
Q

hull v campbell

A

adjudication:
was the first case for years and considered whether the adjudge was entitled to a windfall benefit in the event of a declaratory of the expiry of the legal

80
Q

s.79 2007 bad

A

if brought into force then adjuications may be abolished

and replaced with land attachments

81
Q

s.4 1880

A

imprisonment for debt

still available for aliment but not sums awarded in divorce

82
Q

s.74 debtors scot act 1987

A

rates and taxes imprisonment for debt

83
Q

tasker v smith

A

confirmation as exec-cred
where debtor dead and exec confirmed action in dil can be directed against the exect

if no exec then the cred himself confirms as cred/ exec to value of debt

presupposes the debt is constituted if debtor died pre constitution action cognitionis causa tantum

84
Q

s.208 BAD 2007

A

sequestration for rent cease for rent renewed new they have to use attachment
ABOLISHED
LAND LORD HYPOTHEC

85
Q

2000 act

A

real adjudication on a ebitum fundi

86
Q

207 BAD 2007

A

Maills and duties tight to rent debto is a land lord and owed money in rent. raise an action mails and duties pay to cred rather than to land lord but to secured cred
207 WILL ABOLISH THIS BUT NOT INTRIODUCED YET

87
Q

15 A-15N DEBTORS SCOT ACT

A

15 F- cred needs to show dil on the dependence should be granted

88
Q

which dil does not need to wait for a decree but can use them during deoendence

A

inhibition and arrestment

89
Q

karl construction ltd v palisade properties

A

reform of s. 15 of DEBTORS SCOT ACTare to some extent based on changes in case law that implemented echr law

90
Q

dil on dependence v dil on execution

A

IF pursuer obtains decree dil continues as dil in execution but see the position re interim attachment. if absolvitor diligence FAILS

no forthcoming whilse action still depending. no auto matic release of funds

91
Q

ben-arous v mediouni

A

you will only be granted dil on the dependence if you go to court with claen hands

92
Q

summary dil

A

DECREE FOR PAYMENT IS NORMALLY OBTAINED BY ACTION in two cases the cred may receive decree of reg

debt is dishonoured draft or promissory note ntoorial protest is reg

where debtor has consented to reg

93
Q

dil on a summary warrant

A

debtors scot act 1987 sch4
not to be confused with summary dil. NO DECREE REQUIRED FOR TAXES ECT

ATTACHMENT ARRESTMENT customs and exceise
BAD ACT 2007 CHARGE FOR PAYMENT IS NECESSARY

94
Q

remedies against wrongous dil

A

damages for loss caused to the debtor interim orders

95
Q

time to pay order and directions

A

direction sought by debtor in terms of action for payment against him order sought when charge served or arrestenment carried out. in both debtor seeks time to make payment

while enforce creditor cannot use dil

reform s.210 2007 could grant a time to pay order if reasonable circumstances taking into account the details in S.1(1A) AND 5(1A) DEBTORS SCOT ACT 1987

96
Q

debt arrangement

A

MACKIN V MACKIN notwithstanding that an application to have a payment programme approved had been made with the appropriate entry in the DAS register, a warrant to cite required to be granted. Presentation of a petition for a warrant did not amount to petitioning for sequestration, which only occurred after citation and the calling of the petition on the date assigned. The regulations regarding applications for payment programmes related to the moving for sequestration to be granted. They did not apply to seeking a warrant to cite

97
Q

expenses

A

paid for by cred recovable by debtor

98
Q

sequestration and liqyidation- dil

A

s.24 bankruptcy scot act and s.185 insolvency scot act
if 60 days prior to sequestration/ liquidation= invalidated.

s.195 -198 bankruptcy scot act

if the debtor notifies the accountant they intend to do sequestration then moratorium on doing dilarises aginst the debtor for 6 weeks from reg of appropriate notice by accountant

99
Q

receivership and gen positioning regarding floating charges -dil

A

recievers right are subject to effectually executed dil.

insol act s.55(3)

macmill v t. lieth development- overturned decision that arrestment nit completed by firthcoming NOT EFFECTUALLY EXECUTED DIL
HELD THAT AN INHIBHITION IS AN EFFECTUALLY EXECUTED FIL

100
Q

administration - dilVERY IMPORTANT

A

insolvency act sch B1 para 43(6)moratorium which blocks enforcement and carrying out of dil
43(2) UNLESS EXISTING DIL

commercial (6 decks)

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