An attachment of earnings order is only possible if your debtor is employed not self-employed, in the armed forces or a merchant seaman.
Before you can apply for an attachment of earnings order your debtor must have breached the payment terms of the judgment and be in arrears over £50.
The order is sent to your debtor’s employer by the court. The employer must deduct a court determined amount each time the debtor is paid, the amount is determined by the debtor’s income and living expenses, and therefore the amount can be small. The money is sent to CAPS (centralised attachment of earnings payment system). CAPS then send the money to you.
You can ask the debtors local county court to search the attachment of earnings index. The index details all the attachment of earnings orders against residents in a courts local area. If the search confirms that your debtor has another attachment of earnings order, you can consolidate your debt with the other debt. If your debt becomes part of a consolidated order, payments received will usually be held by the court until the court receives 10% of the debt before declaring a dividend to you and the other people owed money by the debtor. Consolidated orders generally result in smaller payments less often than an ordinary attachment to earnings order.
If you want to object to a consolidated order you must notify the court within 16 days. The objection will be listed for a hearing which you must attend.
Once the application is made the court will ask the debtor to either:
If your debtor fails to return their statement of means, the county court enforcement officer will serve your debtor with an order demanding the forms be returned. If this doesn’t result in compliance there is a potential that a warrant of arrest will be issued, and the county court enforcement officer will execute the warrant and bring your debtor to court to complete the forms.
Once your debtors statement of means has been supplied a court officer (not a judge) will decide what your debtor should pay if anything. There is a protected earnings rate that covers your debtors essential living costs and the amount to be deducted from earnings will be from the income above the protected earnings rate. Your debtor can also ask the court to suspend the attachment of earnings order if the court officer agrees to the suspension your debtor will be ordered to make payments to you directly. If you disagree with the decision to suspend the attachment of earnings, an application can be made within 16 days outlining why you object. The application will be listed for a hearing which you must attend.
If your debtor fails to make payment under a suspended attachment of earnings order you can request a re-issue of the order.
After an attachment of earnings order is made, if CAPS do not receive a payment from the employer, they will establish why from the employer. The most common explanation is that:
If the employer fails to respond to CAPS, CAPS will ask the court to take action against the employer.
If your debtor becomes unemployed your order will lapse. If you find that your debtor has regained employment you can apply to re-issue asking the court to send the attachment of earnings to the new employer.
Before you incur the cost of making an application for an attachment of earnings order you must consider how likely the application will be successful. Remember, Mercian Law cannot guarantee success.
Obtaining an attachment of earning order may prevent you using other methods of enforcement such as warrant of control, third party debt order or charging order.
The Attachment of Earnings Act 1971 states ” so long as the attachment of earnings order is in force, no execution for recovery of the judgment debt shall issue against any property of the debt without the leave of the County Court.”
Therefore, where possible try the other methods of enforcement first before applying for an attachment of earnings order.