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Is it possible to recover money due to you without having to do going to court?

DebtRecovery

Often, clients contact us regarding debts due to them, with the understanding that a lengthy and expensive court action will have to take place before they have a hope of retrieving those funds. However, given the correct circumstances, there may be another alternative available.

Summary diligence is a feature of the Scottish judicial system. The term "summary diligence" is used to describe the enforcement of certain legal rights based on a document (for example, a lease or a Minute of Agreement) rather than a court decree. It can be a beneficial technique for creditors to avoid the courtroom.

Authority to rely on the document is acquired by way of the document's registration in the Books of Council & Session. If your paper is not registered in the Books of Council & Session, everything is not necessarily lost. You should inspect the document to see whether it contains a clause which allows the document to be registered "for preservation and execution". If it does, the document can be registered and relied upon. If it does not, you will most likely need to take guidance on legal procedures.

Provided that the document is registered, and that an extract of it can be obtained, it should be possible to do some type of summary diligence. There are various shapes that summary diligence might take. Some popular examples are:-

1. Mark A Charge for Payment

This entails instructing Sheriff Officers to serve the debtor with a written demand for payment. The debtor will have 14 days to make payment under the Charge for Payment. If payment is not received within that time frame, the lapsed Charge may be used to establish the debtor's "apparent insolvency" for the purpose of initiating sequestration or liquidation procedures.

2. A Statutory Demand

This is another type of written demand that gives the debtor 21 days to make payment. If payment is not received within that time frame, the lapsed Charge may be used to establish the debtor's "apparent insolvency" for the purpose of initiating sequestration or liquidation procedures.

3. Conduct A Bank Arrestment

Sheriff Officers can serve an arrestment on the debtor's bank accounts if you know where they are located. If the debtor has accounts with that bank and the money in those accounts exceeds the protected statutory minimum balance, the bank is compelled to seize funds equal to the debt's value. If you are unsure about the location of the debtor's bank, Sheriff Officers can issue speculative arrest warrants against the "big four" banks. In any case, you will be informed whether the arrest was successful and, if applicable, the amount seized.

It's worth emphasising that if the debtor lacks the cash necessary to pay their debts, enforcement may be tough. If you require guidance on unpaid debts, we will gladly advise you on your options, which may include court procedures or summary diligence.

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