What are the requirements for starting an order for payment procedure (“juicio monitorio”)?

Question

José Manuel Alburquerque · Accepted Answer

The debt must be a money debt, for an exact amount and already due, so that it can be demanded today. It can be for any amount, with no minimum or maximum. It must be recorded in documents, such as something in writing signed by the debtor, invoices or delivery notes of the kind normally used in that relationship or the certificate of debt issued by an owners' association (the “comunidad de propietarios”). In addition, you must know an address at which the debtor can be located. And the prudent course is to have invited them to negotiate beforehand, because the law generally requires an attempt to reach an agreement before a claim is brought. The debt The order for payment procedure is designed for recovering money debts without court proceedings when the debtor has no defence to raise. That is why it can only be used if the debt meets these conditions: It is a money debt. It cannot be used to ask for an item to be handed over, building work to be finished or premises to be vacated. It is liquidated and determined, that is, for a specific amount that results from the documents. It cannot be used for damage that still has to be assessed. It is due and payable, that is, the day for paying it has arrived and it does not depend on any pending condition. The documents The debt must be recorded in a document, on paper or electronic. The law accepts the following: Those signed by the debtor or bearing their stamp, mark or any other sign of theirs, physical or electronic, such as a contract, an accepted quote or an acknowledgement of debt. Invoices, delivery notes, certificates and other documents produced by the creditor themselves, provided they are of the kind normally used to document debts in that type of relationship. Commercial documents proving a long-standing prior relationship between the two parties, together with the document recording the debt. The certificate of non-payment of service charges issued by an owners' association. Full proof is not required. Initial evidence is enough, that is, the documents, together with what is explained in the application, must make the debt credible. This is assessed by the court clerk (“letrado de la Administración de Justicia”), the official who runs the court office. If the clerk has doubts, the judge decides. A delivery note signed by whoever received the goods carries more weight than an invoice on its own. WhatsApp messages or emails in which the debtor acknowledges the debt may be enough, provided it is clear that they are the debtor's. A bank transfer proves that the money was handed over, but not, on its own, that it had to be paid back. Other requirements Besides the debt and the documents, three more things must be checked: That an address is known at which the debtor can be found. In the order for payment procedure, the demand for payment cannot be made by notice by publication (“edictos”), the announcements published when someone cannot be found, except for debts owed to the owners' association. If the debtor cannot be located, the judge closes the procedure. That the debt is not based on an unfair term, where it arises from a contract between a business or a professional and a consumer, that is, someone contracting for their private life and not for their business. The judge checks this before requiring the debtor to pay. If the judge considers that a term may be unfair, they propose claiming only the amount that does not depend on it. The creditor has ten days to accept or reject the proposal. If the creditor does not reply, they are deemed to accept. If they reject it, they will only be able to claim the debt in court proceedings. That an agreement has been attempted beforehand. The law generally requires an attempt to reach an agreement before a claim is brought. It is not clear that this applies to the order for payment procedure, but in Barcelona, it is a criterion agreed by the court clerks that the attempt must be made before applying for it. It is also a criterion agreed by them that WhatsApp conversations, phone calls and text messages are not valid to prove it. The prudent course is always to make the attempt, by “burofax” (a certified letter with proof of content) or another means that leaves a record of the content and of receipt. The proof is submitted with the application.