You have fights... and you win them!

With this phrase from the Spanish proverb, our popular wisdom reveals the lack of trust in our system of administration of justice. In short, what the saying means is that, it is better not to have to resort to judges and courts to settle the controversy of a matter, because, even if a victory results, money and health can be lost along the way, given how slow, late and arbitrary our justice may seem to the average citizen. Unfortunately, as a result of the economic crisis that has followed the COVID 19 pandemic, as well as the restrictive measures that have been adopted for its control, many of you will be forced to resort to it. Indeed, we are observing that in the months following the declaration of the State of Alarm, defaults by companies have multiplied, putting the liquidity of many of them in a critical situation as a result of the increase in delinquency both of its service providers and its own customers. Faced with this situation, the company must require payment from defaulters so as not to lose the opportunity to collect money; however, if the requirements are not met, the company will have no other option than to go to court, and with this, it will be necessary to face the stereotypes that underlie the well-known “You have and you win them lawsuits”. Well, precisely, in the year 2000, when the new Law of Civil Procedure was approved, among its novelties was the regulation of a special procedure for claiming unpaid debts, the monitoring process, with the objective that, through its channels, the protection of liquid monetary credit could be obtained quickly and effectively from many justiciable individuals, and in particular, of medium-sized and small professionals and businessmen. In short, it is a procedure in which the holder of the credit does not need a lawyer or attorney, and which begins with a simple request addressed to the Court of First Instance of the debtor's domicile; in such a request, the monetary amount due must be expressed, which must be a liquid, determined, overdue and enforceable amount. For this request to be accepted, together with it, the documents that result in the justification or legal appearance of the debt must be provided, such as invoices, delivery notes, debt recognitions, or in short, all those that make it possible to establish in a solid way that the defendant is a debtor of the amount claimed in favor of the applicant. The Court, having analyzed the application and declaring its admission, will require the debtor to pay the petitioner within twenty days, or appear in it and explain the reasons why, in its opinion, the amount claimed is not due. After this period has elapsed, if the plaintiff does not appear or the payment does not proceed, the court will record this circumstance by means of a judicial decision, which will be enforceable, which in practice implies the possibility of requesting the seizure of the debtor's bank accounts or outstanding balances. In this way, civil judicial procedure is simplified to the maximum, since, through a judicial request, in the event that the cases established in the Civil Procedure Act are met, the seizure can be obtained in a relatively short time. However, this theoretical simplification may not be so in practice: the debtor can appear in court and oppose the initial request for the monitoring procedure. This appearance will require the intervention of a lawyer and attorney depending on the amount being claimed, and will result in the transformation of this special procedure into the corresponding trial, forcing the creditor to also have to rely on the services of a lawyer and attorney if the amount claimed exceeds two thousand euros. With this transformation, the creditor will have to face not only the times set by the corresponding procedure, as well as with its different actions and phases, but also with their own times of the Court where your request fell, and thus to the slow processing you intended to resolve this type of procedure. On the other hand, the request for monitoring itself may be subject to interpretation by the Court, which will lead to a lack of security. Indeed, if the initial request for monitoring is signed by a company representative, it may be that the latter understands that he does not have the capacity to represent the company, and that it is required that it be signed by his legal representative (administrator, CEO). This “error” may be corrected at the request of the Court, or may directly constitute a cause of inadmissibility of the procedure, which will depend on the criteria followed in that judicial seat. In addition, it may be that the Court understands that the documents that accompany the request are not evidence of the debt that is claimed, thus denying it; what documents are valid to claim? , only the Court knows. As we can see, what apparently is a simple procedure that any citizen can urge without the need for more requirements than having a documented debt, can ultimately be transformed into a tortuous procedure in which there will have to be professionals from the world of justice who can duly guide the claimant. There is no doubt that the monitoring procedure constituted an advance in the civil process for the processing of monetary claims, and will be the reference procedure for all the outstanding receivables that are emerging as a result of the lack of liquidity that we are facing in these times of pandemic; however, it may not be able to completely eliminate the stereotypes that are attributed to our justice system, so, in the end, having the advice of a professional will be decisive for the correct approach to the request.

Hortensio Santos (T&L Attorney)