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How to claim unpaid invoices (part II)

How to claim unpaid invoices (part II)

In our previous post, “How to claim unpaid invoices?” we set forth the fastest and most efficient formula that we have until now, to claim unpaid invoices, which consists in a special judicial procedure called “procedimiento monitorio” (payment proceedings), whereby, after starting legal action against the defendant, if the debtor does neither pay nor object to the lawsuit, a writ is directly issued by court, allowing the claimant to start with enforcing stage and pointing out the assets and rights of the debtor that can be seized in order to satisfy the credit.

How to claim unpaid invoices? (II)

In that post, we explained with detail the features of the procedure, the requirements that the debt hast to comply in order to claim it through this procedure, the content of the lawsuit and the documentation to be attached, among other aspects. For more information regarding to it, we recommend you to read the whole post.

In this post, we are going to explain you the next steps we need to follow, in case the debtor objects to the claim or does not pay. It should be mentioned that all these proceedings will be compulsory legal assistance of a lawyer and a procurator.

  1. What to do if the debtor objects to the “monitorio lawsuit”

We find the answer in article 818.1 of Civil Procedural Act (CPA) that establishes if the debtor presents objection to the claim within the time allowed, the dispute will be solved in the corresponding trial.

In Spanish civil jurisdiction, there are two types of trial: “juicio verbal” (summary trial) and “juicio ordinario” (ordinary or regular trial).  We will have to continue the proceedings through “juicio verbal” if the quantity of the monetary claim does not exceed the amount of 6.000 euros, and through “juicio ordinario” if it is up to that amount.

The essential differences between juicio verbal and juicio ordinario are:

  • Lawsuit/Answer: in “juicio verbal”, once the lawsuit is sued and served to the defendant, the court appoints directly a date for the hearing as soon as possible, and the answer of the defendant to the claim will be made in the same date of the hearing; in “juicio ordinario”, when the lawsuit is sued, the defendant has one month to answer it, from the date the claim is served to him.
  • Resolution of some other aspects before the hearing (conflicts of jurisdiction, legal capacity or legal legitimacy of the parties, etc.) and proposal for evidence: in “juicio verbal”, these aspects are solved also in the same day of the hearing; in “juicio ordinario”, are solved in another day, previous to the hearing (which is called “audiencia previa”), date appointed by the court after receiving the answer to the claim from the defendant, and afterwards, it is appointed the date for the hearing.

Article 815.1 CPA requires that if the debtor objects to the “monitorio lawsuit”, he must plead, succinctly, all the reasons why he thinks he does not owe, wholly or partly, the quantity that the claimant is filing for.

However, the following articles do not set out the consequences that might suppose for the defendant if he withholds information when answering, or if he simply pleads “I do not owe anything”, or any other general expression.

Nor is a unanimous conclusion in court, because the criteria of our tribunals are divided. Some courts consider the reasons pleaded in the answer cannot be plead in a next trial, without prejudice to the necessity of the facts to be fully developed in legal form or motivated enough, but it can be done in the next step of the procedure; and other courts assert that, simply, the answer of the debtor objecting to the claim, converts the procedure in another trial (“verbal” or “ordinario”, depending on the quantity), and in this new trial the debtor can plead new facts, which he had not declared before.

  1. What to do if the debtor does neither object nor answer to the lawsuit, but he does not pay the quantity we are filing for

Article 816.1 CPA states that if the debtor does neither pay nor object to the lawsuit, a writ is directly issued by court, allowing the claimant to start with enforcing stage and pointing out the assets and rights of the debtor that can be seized in order to satisfy the credit.

Consequently, the next step to follow is to present a lawsuit enforcing the payment of the debtor, which is presented to the same court where the writ was issued. In the lawsuit we need to set forth that the time required by article 548 CPA to be able to start with enforcing stage (20 days from the final judicial decision has lead) has passed and the debtor has not paid, so we request to seize the assets of the debtor in enough quantity to satisfy the amount of the debt, plus interest and legal costs.

If we know assets or rights that the debtor owns, for instance and among the more common ones, a real property or salary, we must appoint them in order to accomplish that the court approves to seize them. If we do not have knowledge of any assets or rights of the debtor, we can apply the tribunal for approving the investigation of heritage of the debtor, which is done in Spain by consulting any public authority who can have this knowledge, like Tax Agency, National Department of Traffic, Social Security Treasury, Spanish Statistical Office, etc. and through the “Punto Neutro Judicial”.

The “Punto Neutro Judicial” is a service network which offers to courts the possibility to consult and interconnect with third parties or entities (Public Authorities, Professional Associations, Financial Institutions, Public Registers, etc.)

 

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