Procedimiento monitorio – money claims in Spain
Procedimiento monitorio – Money claims in Spain
The payment procedure allows to claim monetary debts provided there is documentary proof of the sum outstanding.
Advantages
- Fastrack system
- No limit to value of claim
- Low costs
- Ease of enforcement
Overview
The Procedimiento monitorio is a much faster method of pursuing a debt than the traditional court process in Spain.
A court hearing before a judge is only required if the debtor opposes the claim.
If this is not the case, and the debtor does not voluntarily pay or oppose within the timeframe allowed, the procedure automatically ends by means of a resolution that will allow the claimant to go directly to forced execution.
The forced execution ensures that assets of the defendant are seized until the claimed debt is fully paid.
Who can use the process?
Any individual or company who is owed a sum of money and can provide proof of the debt.
There is no limit to the amount that can be claimed using the money claim system.
The process is not suitable in instances where a judge needs to rule, for instance in relation to clauses within contracts.
In these types of cases, it is necessary to proceed with the usual court action.
The claimant can be based within Spain or another country.
What are the requirements to qualify for a money claim?
The main requirements for the Procedimiento monitorio are:
- Claim for money only
- The claim should be for a precise amount
- The deadline for payment has to have expired
- The debtor must be obliged to pay
- EXIGIBLE Debt, should be understood as one that does not depend on consideration, nor is subject to any condition.
Timescale for response
Once a case is submitted and the debtor correctly notified, they have 20 (calendar) working days in which to formal respond.
What documentation is required?
It is imperative that a relationship between the two parties is confirmed by submission of documentation.
The debt and link between claimant and debtor, must be proven in the following ways:
Documentation; these could be hardcopies or electronic documents delivered via email.
Invoices, delivery notes, certifications, telegrams, fax or any other document that records the relationship between the two parties.
It is important to indicate as accurately as possible the origin of the debt and the reasons for the claim submitted.
Where should claims be submitted?
The claim should be filed in place of residence/property/place of business of the debtor.
However, if the domicile or residence is not known, the address used for the purpose of the initial payment request may be utilised.
In the case of a claim of expenses of communities of property owners, the claim can be presented where the property is located.
If during the course of the procedure it is found that the defendant has residence in another judicial district or the result of the efforts to find out his address are unsuccessful, the procedure will be terminated.
This is so that interested party can present his claim or resort to the declaratory process through court.
Therefore, if the defendant cannot be located, the relevant court process should be used.
The only exception is a claim of expenses of communities of property owners.
In this case it is acceptable for the defendant to be notified at the address that the community has on file or at the property to which the debt relates.
What can happen after the payment request to the defendant?
Following submission of the claim, the following scenarios are possible:
1. The defendant pays voluntarily.
The payment can be made directly to the claimant. The court should be notified of receipt of funds.
Alternatively, the debtor can pay into the courts bank account.
2. The defendant contests the claim.
The claim can be opposed. The defendant must reply in writing outlining why they oppose the claim and providing relevant documentary evidence.
All or part of the claim can be disputed.
In this circumstance, the procedure stops and the normal court process should be followed.
For disputes up to the value of €6,000.00, a hearing in front of a judge will be arranged. The judge will preside over the claim.
If the amount exceeds €6,000.00, the claimant must submit a lawsuit through court in the usual process. This should be done within one month.
3. The defendant does not respond.
If the defendant does not respond, the claim will be accepted and will pass to the execution stage of the process.
If the debtor does not pay, what procedures should be followed?
Once the judgment has been passed, if the debtor does not pay the enforcement process will commence.
The debtors assets can be seized in order to pay the debt. A separate enforcement body is not required.
From the moment the order is issued, the amount will accrue interest provided in article 576 that is, an annual interest equal to the legal interest of the money increased by two percent or that corresponding by agreement of the parties or special provision of the law.
If you need any advice in relation to either claiming money or Spain or responding to a claim against you, please don’t hesitate to contact us.
Gascón Bernabéu offer no obligation consultations.
We will review your circumstances and provide clear advice to enable you to decide on how best to proceed.