What should I do if a time-barred debt is claimed from me?

Question

José Manuel Alburquerque · Accepted Answer

Plead limitation, that is, assert that the creditor has lost the right to be paid because they did not claim in time. The judge does not apply it of their own accord, even if the dates make it clear. You have to plead it when objecting in the order for payment procedure (“monitorio”), within the twenty working days, or when filing your defence if you are sued in court proceedings. If you do not, you will have to pay anyway. First of all, check the dates and do not pay any part of the debt or sign any acknowledgement, because this could be taken to mean that you are waiving limitation. When it becomes time-barred Which time limit applies depends on the law governing the debt, which is not always Catalan law even if you live in Catalonia. If it is governed by the “Código Civil de Cataluña”, the Catalan Civil Code, these are the time limits: Ten years as a general rule, for example for a loan that had to be repaid in one go. Three years for periodic payments, those made yearly or at shorter intervals, such as the rent under a tenancy or service charges. Each payment has its own time limit, which starts on the day it falls due. Also three years to collect what is owed for a service, for work carried out or for goods sold to a consumer. If it is a loan or a credit card that was being repaid in instalments, it is unclear whether each instalment becomes time-barred after three years or after ten, so it is advisable to have a lawyer look into it. In most of the rest of Spain, the general time limit under the Spanish Civil Code (“Código civil”) is five years. In all cases, the time limit starts again in full if the creditor claimed the debt from you in writing and the claim reached you, if they claimed it in court or if you acknowledged it, for example by paying part of it or asking for more time to pay. The fact that the debt has been bought by a fund does not make the time limit start again, although written claims made to you by the fund do interrupt it if they reach you before it expires. How to plead it Depending on how the debt is claimed from you, limitation is pleaded as follows: In an order for payment procedure, in the written objection, within the twenty working days following delivery of the demand for payment. If more than 2.000 euros is claimed from you, the document must be signed by a lawyer and by a court agent (“procurador”), the professional who represents you before the court. In a “juicio verbal” (the simplified procedure) or in ordinary proceedings (“juicio ordinario”), when filing your defence. Once it has been pleaded, it is for the creditor to prove that they interrupted the time limit, for example with the acknowledgement of receipt of a “burofax” (a certified letter with proof of content). A letter that reached you when the debt was already time-barred does not make it enforceable again. Together with limitation, you can raise other grounds, such as that the fund has not proved that it bought your debt or that the amount includes interest or charges that are not due. If you win the case, in principle it will be the creditor who pays the costs, which are mainly the fees of your lawyer and your court agent. What you should avoid doing It is common for the fund or the debt collection agency to write to you before going to court, proposing that you pay part of the debt, because the law generally requires an attempt to reach an agreement before a claim is brought. Until you know whether the debt is time-barred, bear the following in mind: Do not pay any amount or sign an acknowledgement of debt or a payment plan. If the debt was not yet time-barred, the time limit would start again. If it was already time-barred, it may be taken that you are waiving limitation, because the Catalan Civil Code treats any act incompatible with the intention to plead it as a waiver. Do not let the time limit in the court's demand pass, even if you are convinced that the debt is time-barred.