Report concerning prejudgement seizure in debt collection procedures

Written by Laura on . Posted in Publications

This survey shall give a very brief overview over different possibilities of enforcing legal demands in different kinds of legal procedure of debt collection: 1. Ordinary civil proceeding, 2. Civil proceeding concerning exchanges or checks, 3. Civil proceeding concerning a summons.

1. Ordinary civil proceeding

In order to initiate a provisionally enforcement or afterwards a distraint several requirements have to be met: before commencing the procedure of provisionally enforcement the bearer of a possible postulation has to fulfil some conditions. The permission to provisionally enforce has to be requested and granted by the competent court, taking into account both, the legitimate conditions and the circumstances of the individual debt collection claim.

Time for requestion

The permission to provisionally enforcement can be requested in connection with the debt collection claim, which complies with the usual habits.

– In urgent cases before initiating a claim.

– For good reason, if a claim is already pending.

Form of the request

The request must fulfil several conditions in order to be accepted as lawfully

– The claimant must proof the “periculum in mora”, i.e. a concurrent danger of default of the respondent. However, the claimant must document an objective danger. It is not sufficient to argue with fears and beliefs of the claimant. It is also not sufficient, if a co-defendant is not solvent.

– The claimant must proof the “fumus boni iuris”, i.e. the claimant must document that a decision in favour of him is very likely. Thus he has to hand over documents, arguments and causes, that proof, that a decision in his favour is under the given circumstances verisimilar.

– If not stated otherwise the claimant has to pay a deposit accounting to a amount sufficient to compensate damages resulting out of a finally unjustified enforcement, i.e. if the judge decides not in favour of the claimant.

Conditions for granting the permission

– The provisionally enforcement must not excess its aim, which is only to secure the possibility to pursue the execution of the distraint, in case the judgement responds to the expectation of it.

– The provisionally enforcement can not be substituted by any other means, which lead to the same results, however, are less incriminating to the respondent.

– The court may even grant the provisionally enforcement of an action for injunction or execution, irrespective of the eventual judgement.

2. Civil proceeding concerning exchanges or checks

The claimant can initiate such proceeding of debt collection by requesting its implementation and concurrently .presenting a check or exchange or any other similar paper (in the following “exchange”).

The court will impose the following means on the respondent, if the exchange is valid and coherent.

– A payment period of ten (10) days

– The provisionally enforcement will be ordered. However it will only allow the enforcement into personal property to a certain amount. The enforceable amount consists of the figure stated in the exchange, default interests and expenses for the enforcement. But if the respondent refuses payment explicitly within five (5) days after having received the ruling of the court for reasons of denying the validity of the signature or the power to act as a representative, the court may cancel this regulation.

Notwithstanding the court must not cancel the regulation in the following cases:

– If the signature or surety occurred under notarial survey or survey of an official broker, which must be registered in the “Colegio de Comercio”, respectively with date specification.

– If the respondent refuses payment for any other than the mentioned reasons

– If the respondent recognised his signature in front of a court or in any other official document.

3. Civil proceeding concerning a summons

The claimant can request the initiation of a such procedure of debt collection before the competent first instance court if the following conditions are met:

  • His debt does not exceed 30.000,- €.
  • If his action finds its base on any kind of document, which is countersigned by the respondent, by signature, signet or any other electronical or physical sign, that is sufficient to identify the respondent
  • If his debt collection action finds its base on any invoice, certificate, fax or any other document, which complies -accredited by the claimant- to the usual habits between the parties.

Besides a claimant can initiate such a procedure if:

  • The claimant shows an enduring commercial relationship between the parties, by means of commercial documentation, which has to be presented coherently with the document proofing the demand
  • The claimant shows, that the action is based on debts with relevance to common costs of a house-owner association.

Further more the claimant must determinate in his action the identity of the respondent and the residence of himself and the respondent. The claimant can present this debt collection action before court himself without representation of an attorney or proxy holder. If the request is valid, coherent and lawfull, the court will impose a payment period of twenty (20) days on the respondent by means of court order.

The respondent has different possibilities to react within this period of time:

– He can pay the debt

– He can oppose the summons in written and enter into a trial

– He can refrain from any action

This survey shall have a focus on the third possibility only. If the respondent does neither pay the debt nor transmit an written objection, the claimant will be able to pursue a distraint. However it will only allow the enforcement into personal property to a certain amount. The enforceable amount consists of the figure stated in the document, default interests and expenses for the enforcement.

As far as the court order is concerned, it will legally binding after the expiration of the period and can not be object of a new ordinary civil proceeding.

Marina Bugallal Garrido

Tags: , , , , , , ,

Español