What are the consequences of not filing a defence?

Question

José Manuel Alburquerque · Accepted Answer

The court declares you in default (“rebeldía”), the situation of someone who does not appear in the proceedings despite having been summoned to them. The proceedings go ahead without you. Default does not amount to accepting the claim, so the claimant has to prove what they are claiming. But you lose the opportunity to defend yourself and to submit your documents and you will not be notified of anything else until the judgment. If the claimant wins, you will normally also be ordered to pay the costs. What default is It is declared by the court clerk (“letrado de la Administración de Justicia”), who manages the case at the court, when the time limit expires without the defendant having appeared. The law expressly states that default is not to be regarded as acceptance of the claim (“allanamiento”), which means accepting what is being sought, or as an admission of the facts set out in the claim, except in the cases provided for by the law itself. The claimant has to prove what they allege and the judge may dismiss the claim if they fail to do so. Anyone who appears in the proceedings within the time limit but does not file a defence is not in default, although they still lose the opportunity to file one. The decision declaring you in default is notified to you by post at your home address, electronically if you are required to deal with the courts by electronic means or by notice by publication (“edictos”) if it is not known where you live. After that, you will receive no further notifications until the one that brings the proceedings to an end. The judgment is notified to you by delivery at your home address and, if your whereabouts are unknown, an extract is published on the official online notice board (“Tablón Edictal Judicial Único”), on the website of the BOE, Spain's Official State Gazette. What you lose Even though the facts set out in the claim are not taken as admitted, being in default has the following consequences: You will no longer be able to file a defence or submit the documents that should have accompanied it. The judge cannot take into account of their own accord defences such as limitation, which only apply if the defendant raises them. You will not be told the dates of the hearings in the proceedings, unless you appear in them beforehand. If you lose, you will normally also have to pay the costs, which include the fees of the claimant's lawyer and court agent (“procurador”), subject to certain limits. In some types of proceedings, not responding has more direct effects. In eviction proceedings for non-payment, if the tenant does not pay, leave the home or object within the ten days they are given, the proceedings are brought to an end and the eviction itself (the “lanzamiento”), when the court bailiffs recover the property, takes place on the date already set. If you find out late You can appear in the proceedings at any time, but they continue from the point they have reached and do not go back. If the judgment is notified to you at your home address, you can appeal against it within the time limit set by law. Only in exceptional cases can you ask for a final judgment given in default to be set aside, for example if force majeure prevented you from appearing throughout the proceedings or if, through no fault of your own, you never found out about the claim. This must be requested within twenty days of the judgment being notified to you at your home address or, if it was not notified to you in that way, within four months of the publication of the notice. If the claim was not properly notified to you, you can also ask for the proceedings to be annulled. So, if you discover that a judgment has been given against you without your knowledge, consult a lawyer straight away.