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Dealing with Debt: Finding your feet: Advice for you if you are in debt

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4 Being taken to court?

If you have not paid your debts, your creditor can take you to court. This can happen if you haven't paid the whole amount that you owe, or if you haven't made the payments that are due.

How do I know if I am being taken to court?

You will know that court action is being taken if you receive a summons or an initial writ.

  • If you owe £750 or less you will receive a small claims summons.
  • If you owe more than £750 and up to £1,500 you will receive a summary cause summons.
  • If you owe more than £1,500 then you will receive an initial writ.

The summons or initial writ should tell you who is taking you to court, how much they think you owe them, and how they have worked out that amount. It should also tell you what court the action is being taken in and what they want the sheriff to do.

Information on summary cause and small claims is available from the court on request atwww.scotcourts.gov.uk

What can the sheriff be asked to do?

Usually, the creditor taking you to court will ask the sheriff to order you to pay the amount you owe. If the money that you owe is rent or mortgage payments that you haven't paid on time, the sheriff might be asked to order you to leave your home. If the money that you owe is for a car or something else that you have bought on credit or hire purchase, they might also ask the sheriff to order you to give the goods back.

What should I do if I am being taken to court?

It is very important that you get help and advice.

Go here for free advice agency numbers.

You can also consult a solicitor. The solicitor may charge a fee, but if your circumstances allow, you may be able to get legal aid or the solicitor may provide an initial interview free of charge.

The papers that you will get with the summons or initial writ will ask you to reply to the court. There will be a date by which you have to do that. Do not ignore this date.

You will usually be able to do one of three things:

1 You can defend the claim if you don't agree that the money is due to the creditor taking you to court. This may be because you don't owe them anything, or because you think they have made a mistake about how much you owe. If you do this then there will be a hearing to allow the sheriff to find out more about the claim.

2 You can admit the claim if you agree the money is due to the creditor. If you do this, normally the sheriff will grant an order requiring you to pay the whole amount which is owed usually with interest, or to give back something which you have bought on credit or hire purchase, or to leave your home. You will generally also have to pay the creditor's expenses.

3 You can admit the claim but ask for time to pay if you agree the money is due to the creditor. You should get a form with the summons or initial writ that you must fill in if you want time to pay. You must say how much you are able to pay and whether you want to make payments weekly, fortnightly, or monthly or some other way.

Your creditor can choose to accept or reject your offer under option 3. If it is accepted then the sheriff will order you to make the payments you have offered. If it is rejected then there will be a hearing and you can attend this to explain to the sheriff why you need time to pay. Again you will usually have to pay interest and the creditor's expenses. It is up to you to find out from the court if your offer has been accepted or rejected.

You should get help and advice particularly if you are not sure how to answer the summons or initial writ.

Do you know?

  • You can't be taken to court unless a summons or an initial writ has been sent to you in the post or delivered to you personally.
  • An action for payment of money is not a criminal charge and doesn't give you a criminal record unless it's for non-payment of fines imposed by a court.
  • If you want to defend the claim you don't need to have a lawyer and you can appear at the court hearing yourself. Some courts have special advisers to help people who do choose to go to court without a lawyer.