A client walks into the office with three unpaid invoices, an email from the debtor asking for “a bit more time” and the conviction that litigation will cost more than the debt itself. For that situation the Spanish Civil Procedure Act (Ley de Enjuiciamiento Civil) provides a dedicated route, the order for payment procedure (proceso monitorio) under articles 812 and following, designed to collect documented debts without a full trial when the debtor has nothing serious to say against the claim.
Which debts can be claimed
Article 812 requires the debt to be monetary, liquidated, determined, due and enforceable. In practice this means a specific sum of money, already calculated, whose payment date has passed. It cannot be used to demand the delivery of goods, to force someone to do something, or to claim amounts still to be fixed. Since the 2011 reform there is no ceiling on the amount, so the same route works for 300 euros and for 300,000.
The debt must be evidenced in documents. The law accepts two groups. The first is documents signed by the debtor or bearing the debtor’s stamp, imprint or mark, or any other physical or electronic sign, whatever their form. The second is documents of the kind that ordinarily record credits and debts in the type of relationship existing between the parties, even if the debtor never signed them, which covers invoices, delivery notes, certificates, telegrams or emails. A signed contract, an acknowledgement of debt, a matured promissory note or an invoice with its delivery note are examples that work every day. Homeowners’ associations also have their own rule for unpaid community charges, which are evidenced by a certificate of the general meeting resolution approving the amount.
The initial application
The procedure starts with an application, not a full statement of claim. It is filed with the first instance court of the debtor’s domicile or residence, or of the place where the debtor can be found for service (article 813). Jurisdiction clauses in favour of other courts do not apply here, so whatever the contract says about venue is irrelevant.
The application identifies creditor and debtor, with the debtor’s address, states the origin and amount of the debt and attaches the documents. Neither a lawyer nor a court agent (procurador) is required to file it (article 814), and official forms exist. The fact that representation is optional does not mean the drafting is unimportant. The application fixes the amount claimed, the interest sought and the documents relied upon, and on that depends whether the court admits it and whether the debtor has room to oppose it successfully. Before filing, we check whether the document genuinely proves the debt, whether the amount is correctly calculated and whether the debtor’s address is right, because a badly framed application is shelved and the whole process has to start again.
The payment demand
Once the application is admitted, the court clerk (letrado de la Administración de Justicia) serves a demand on the debtor to pay or file a written opposition within twenty days (article 815). The demand is served at the address given, using the forms the Act itself lays down for summonses. If the debtor is not at that address and cannot be located at another, the application is shelved, except in the special case of homeowners’ associations, which may resort to service by public notice. This is why locating the debtor is, in practice, the first real obstacle in the procedure.
Where the debtor is a consumer and the debt arises from a contract with a business or professional, the judge examines of his own motion whether the contract contains unfair terms before the demand is issued, and may declare the claim inadmissible or allow it to proceed without applying those terms.
Three possible outcomes
Once served, the debtor can do one of three things.
Pay. A receipt is issued and the file is closed (article 817). Payment may be made directly to the creditor or deposited with the court.
Stay silent. If within the twenty days the debtor neither pays nor opposes, the court clerk issues a decree closing the procedure and notifies the creditor so that enforcement can be requested (article 816). A simple request is enough, with no fresh claim. From that point ordinary enforcement begins, with attachment of bank accounts, wages, vehicles or property, and the debt accrues enforcement interest. This is the outcome that makes the procedure worthwhile, because it turns an invoice into an enforceable title without a trial. A debtor who stayed silent can no longer dispute the debt in other proceedings or seek repayment of what is collected in enforcement.
Oppose. Here the order for payment procedure ends and what follows depends on the amount (article 818). The debtor must set out in writing, even briefly, the reasons for denying that the sum is owed. No lawyer or court agent is needed to oppose unless the amount requires it.
What happens if the debtor opposes
If the debt does not exceed the threshold for the summary civil trial (juicio verbal), the court clerk issues a decree closing the procedure and ordering that the case continue under the rules of that trial. The creditor is given ten days to challenge the opposition in writing. The matter is then decided like any other summary civil case, and if the amount exceeds 2,000 euros a lawyer and court agent are compulsory.
If the debt exceeds that threshold, the creditor has one month from notice of the opposition to file a full claim under the ordinary civil procedure before the same court. If the month passes without the claim being filed, the case is dismissed and the creditor is ordered to pay costs. There is no leeway here, and it is a deadline frequently missed when the creditor has run the procedure without assistance and does not realise that the opposition shifts the burden of suing onto him.
Opposition does not close the route to recovery, it moves it to trial. The documents used for the application now serve as evidence and the debt continues to accrue interest. What changes is time and cost, which is why before starting it is worth assessing how likely an opposition is and on what grounds.
Interest and costs
The application may claim the contractually agreed default interest or, failing that, statutory interest from the date the debtor fell into default. No costs are awarded while there is no opposition, but in subsequent enforcement the expenses fall on the debtor, and in any trial following an opposition the general loser-pays rule applies.
When it is worth it and when it is not
The procedure is worth using when the debt is well documented, the debtor can be located and there is no genuine dispute on the merits. That is the case with accepted invoices, signed contracts, unpaid rent or community charges. It is less useful when the debtor has a serious argument, because opposition is guaranteed and several months will have been lost, or when the debtor is insolvent and there is nothing to attach. In the latter case the enforceable title will still allow attachment of whatever assets surface in later years, but it is better to know that before starting.
Our firm handles monetary claims through the order for payment procedure and through ordinary litigation within our debt recovery practice, as well as claims arising from contracts and liability under civil law generally. If you have an outstanding debt and want to know whether this procedure is the right route, you can contact us and we will review the documentation.
Frequently asked questions
Do I need a lawyer to start an order for payment procedure in Spain?
Not for the initial application, and the debtor does not need one to oppose either. A lawyer and court agent are required if the debtor opposes and the debt exceeds 2,000 euros, because the case moves to a summary or ordinary civil trial, and in subsequent enforcement when the amount exceeds that figure.
How long does the order for payment procedure take?
It depends on the court and on what the debtor does. If the debtor is located at the first attempt and does not respond, the decree allowing enforcement can arrive within a few months. If the debtor has to be traced to several addresses or opposes the claim, the timeline stretches with the court’s workload and the subsequent trial.
What happens if the debtor has no money?
The procedure gives you a title to attach assets, but it does not create assets where there are none. The court can check the debtor’s assets in the registers and databases it has access to, and the attachment can be extended to whatever surfaces later.
Can I use this procedure against a private individual without a signed contract?
Yes, if you have documents reflecting the debt, such as bank transfers, messages in which the debtor acknowledges owing the money, or invoices. The court assesses whether those documents are of the kind that ordinarily evidence debts between people in that situation. With no documents at all, this procedure is not the route and an ordinary civil claim would be needed.