Who pays the costs of an order for payment procedure (“proceso monitorio”)?

Question

José Manuel Alburquerque · Accepted Answer

It depends on how it ends. If the debtor pays when the court demands payment, the case is closed without a costs order, costs being mainly the fees of the other party's lawyer and court agent (“procurador”). If the debtor neither pays nor objects, the debtor pays the costs of the enforcement proceedings opened to attach their assets. If the debtor objects, whoever loses the court proceedings that follow pays, in principle, the other party's costs, subject to certain limits. And if the creditor does not file the claim in time when one is required, the costs fall on the creditor. If the debtor pays If the debtor pays within the twenty working days given by the court, the court clerk (“letrado de la Administración de Justicia”), the official who runs the court office, closes the case. There is no costs order, so each party bears its own expenses. In principle, whatever the creditor has paid a lawyer or a court agent for the initial application, neither of whom was compulsory, is not recovered. Nor is the court fee, if one was paid. Owners' associations (“comunidades de propietarios”) have a special rule in the Spanish Horizontal Property Act (“Ley de Propiedad Horizontal”) that allows those fees to be charged to the owner in arrears even if they pay. It is not clear that the courts apply it to owners' associations in Catalonia. If the debtor neither pays nor objects If the debtor lets the time limit pass without paying or objecting, the court brings the order for payment procedure to an end and the creditor can apply for enforcement, which is the procedure for attaching the debtor's assets. The expenses are shared out as follows: The costs of enforcement are borne by the debtor, without the judge having to say so expressly. If the debt exceeds 2.000 euros, they include the fees of the creditor's lawyer and court agent, who are compulsory in that case. If it does not exceed that figure, in principle they do not include them. In the meantime, the creditor advances the expenses as they arise. The creditor recovers them at the end if the debtor has assets with which to pay. If the debtor objects If the debtor objects, the matter is decided in court proceedings and the costs follow the general rules: A party that is denied all the relief it sought pays the other party's costs, unless the case raised serious doubts. If each side wins in part, each pays its own costs and half of the common costs. What can be charged to the party ordered to pay costs for the fees of the other side's lawyer is capped at one third of the amount claimed, unless the judge finds recklessness, that is, that the party litigated knowing it was in the wrong. If 2.000 euros or less is claimed, a lawyer and a court agent are not compulsory and, in principle, their fees are not included in the costs. If one of the parties refused without good reason to make the prior attempt to reach an agreement, the judge may take this into account when deciding on costs. If more than 15.000 euros is claimed, the creditor generally has to file a claim in ordinary proceedings (“juicio ordinario”) within one month. If the creditor does not do so, the court closes the case and orders the creditor to pay the costs.