How to claim a debt: ways to claim defaulters?

In this post, we intend to give a little light to those creditors, whether they are self-employed or companies, on the existing procedures in order to collect the amounts that are owed to them. Not in vain, and unfortunately, the commercial default is very present in our economy and there is a plurality of creditors who cannot see their credit satisfied.

In this context, there are two non-incompatible mechanisms to claim the debt: the extrajudicial route and the judicial route. As we will explain, although the first is optional, by logic and in an effort to reduce costs, it is necessary to exhaust it.

In order to outline the different actions, we have the following mechanisms:

Out-of-court way:

Judicial way:

• Monitoring procedure.
• Declarative procedure, which in turn can be verbal or ordinary.
• Exchange procedure.

EXTRAJUDICIAL VIA

Before starting any legal procedure, as we have stated, it is advisable to contact the debtor to try to reach an agreement and settle the debt. If it is done through a lawyer, it is guaranteed that this route will be carried out in the best way, since they have knowledge and practice in the claim and be able to know a very important aspect of the claim. Why the defaulter does not pay. Based on this, it will recommend tools to resolve the conflict, either through a payment installment, or a reduction in its amount,

If the out-of-court procedure is unsuccessful, either because you do not get in touch, or because you do not have sufficient liquidity to deal with the debt, to recover the unpaid amount it will be necessary to go to court. At this time, the sooner we do best, because waiting can lead to that post, the debtor is in a situation of total insolvency or bankruptcy, which, unless our credit has a position advantageous in the classification of bankruptcy credits, it will be difficult to recover the amounts owed.

JUDICIAL ROUTE

When friendly attempts to collect the debt have failed the only viable solution is to file a lawsuit in court for the amount owed. In this sense, the law provides for three different types of procedures to claim our debtors, and in any case the debt must be monetary, past due and enforceable. 

In consideration of how we have it documented, as well as its amount and / or foreseeable attitude of the debtor, we will go to one or another procedure, which is classified as follows:

A) Initial Petition for Monitoring Procedure

To claim this way, we must have a document that proves the debt (such as invoices, delivery notes, received, commercial relationship contract, etc.), which may not exceed 250,000 euros. Specify that this route is very popular in practice for claiming small debts. In addition, for the initial petition, it will not be necessary to hire a lawyer and solicitor, although it is highly recommended to hire them because they are knowledgeable about the judicial process.

Once the initial petition is admitted by the Judge, the debtor is required to object, pay, although the consequences of both options are as follows:

• If you object, the order for payment procedure will be transformed into a verbal or ordinary trial, depending on the amount of the claim, which considerably slows down the claim.
• Should not opposed or pay, the procedure ends by decree in which the amount owed is recognized. At this point, in order to collect the debt, it will be necessary to file an executive lawsuit, involving the execution and seizure of the debtor's assets.

B) Verbal or Ordinary Declarative Procedure

In this sense, we will go to one or the other in the following cases:

• Verbal Procedure: when the debt does not exceed 6,000 euros, and when we claim due income, recovery actions for the possession of a property, among others, regardless of its amount.
• Ordinary Procedure: when amounts greater than € 6,000 are claimed and, regardless of their amount, when the procedure concerns honorary rights, challenge to corporate agreements, unfair competition, among others, regardless of their amount.

Whichever procedure proceeds, the claim can obviously be filed without the need to previously initiate the initial request for an order for payment procedure described above, so this route is more economical when the debtor is foreseeably not going to pay on a voluntary basis or is going to oppose to said request alleging substantive reasons (for example, because he questions the amount, or indicates that the billed service was performed incorrectly).  

In any case, and although the verbal and the ordinary have their own procedural specificities, the judge's decision will have merely declarative effects in both cases, which means that it will not be enforceable per se. Therefore, once it is firm, an enforceable lawsuit must be filed if the seizure of the debtor's assets and their execution are sought.

C) Exchange Procedure

The specialty of this procedure lies in the fact that the obligation to return the amount owed is documented in a security title of those provided for in the Exchange and Check Law; be it a bill of exchange, a check or a promissory note, solely and exclusively. Another issue to take into account, apart from providing a specific document, is that it complies with the requirements of the referred legislation, that is, that it has minimal information such as date of issue, expiration, identification of the parties, among others specific to each security.

Despite its initial formalities, it is highly recommended that the creditor who has said document institute this specific procedure, because although in this procedure the intervention of a lawyer and solicitor is mandatory, whatever the amount is claimed; the probabilities of collection are considerably higher, because if the debtor does not pay or formulates opposition within 20 days of being notified, the goods are directly seized in sufficient quantity to cover the amount claimed, as well as interest, Expenses incurred (such as bank return expenses) and costs of the procedure.

This temporary speed can, after all, avoid what sometimes happens in other procedures in which the processing is slowed down, and that, can lead to the fact that at the time of the seizure, the debtor no longer has assets or rights that we can seize or do not reach a sufficient amount to see our credit satisfied. And here is the importance of documenting a debt through a security.

In any of the cases, and before initiating any of the aforementioned legal proceedings, it must be taken into account that there is one:

Need to previously investigate the debtor's assets, since filing a lawsuit blindly, without knowing of the existence of sufficient assets to respond to the debt, can entail more losses than what is actually claimed.

Possibility of recovering the costs involved in the judicial claim of the debt, inasmuch as unless an amount of less than 2,000 euros is claimed; To the amount claimed, the interests that accrue from the same can be added from the filing of the claim until its effective debt recovery; as well as that the costs are paid by the debtor.

Need to have the debt well documented: either by checks, promissory note, delivery notes, commission sheets or any document that proves the agreed consideration. 

In our office we have a team specialized in debt claims. Contact Mckenzielaw office if you wish to request a face-to-face visit to our offices.