Order for payment procedure

Parties in the order for payment procedure

Anyone who seeks payment of a net, certain, due and claimable debt.

Documents supporting creditor’s claim

The creditor in possession of the following documents proving a debt can apply for an order for payment procedure:

• Documents, in any form, containing the debtor’s signature/stamp/print.
• Invoices, delivery notes, certifications, telegrams, faxes or any other documents that, even unilaterally created by the creditor, usually document the claims.
• Documents stating the debt, accompanied by other commercial documents proving a previous longstanding commercial relation.
• Debt certifications of common expenses from urban property owners’ associations.

These are the documents required in art. 812 LEC. (LEC means Spanish Civil Procedure Act)

Where may it be applied?

As a general rule, in the First Instance Court of the debtor’s address. Settlements between creditor and debtor for a different jurisdiction are not accepted by LEC.

Application

The assistant of a lawyer is not required for filing the procedure.

A written document or a form (provided by the Courts) are enough and the following information must be included:

• Debtor’s identity.
• Creditor’s and Debtor’s addresses.
• The cause of the debt accompanied by the documents listed above.

Representation by a lawyer or another legal professional is not mandatory.

Courts’ admission criteria

According to LEC’s general principle, all orders for payment procedures accompanied by the documents listed above, are admissible. However, do not consider this principle as a broad interpretation because as we explain below, it must pass Courts’ criteria.

Madrid’s Courts of Appeal (section 19º) 17/07/2013 sentenced as follows regarding Court’s admission criteria:

“(…) The general principle of the LEC 2000 is the general admission of all order for payment proceedings. A limitation for that principle is the law, by establishing special requirements or formalities, or by granting Courts a certain margin of discretion in the admission of unregulated claims (…)”.

Meaning that is not possible to prove debts through documents different from the ones named in article 812 LEC. As for example, a debt proved by a debt’s certification issued by the creditor itself.

And meaning that Courts will not admit an order for payment if the claimant has not complied its legal obligations. We are referring obligations as the ones imposed to trading companies by consumers’ regulations: creditor’s prohibition to include abusive contractual conditions in standard form contracts.

Madrid’s Courts of Appeal (section 21) 17/05/2017 sentencing regarding Court’s admission criteria regarding creditor’s obligations:

“(…) among the documents provided by the entity **(a Bank)** with its application for an order for payment procedure, the specific conditions that were agreed between **the Bank** and the debtor regarding the litigious loan contract, are not included. Neither the “screenshot” proving the contract, nor the latter accompanied contractual conditions in relation to the loan, are clear about the specific conditions agreed when the loan was contracted (…) the lack of precision of the contractual agreed conditions, insofar as they were offered and effectively admitted, prevent any Court from being able to analyze the possible existence of abusive clauses in the order for payment procedure applied by the Bank (…)”.

So, even if the general admission’s requirements met – when art.812’s documents are attached – the application can be rejected. In the above case Courts understood that the fulfilment of claimant’s obligations, as the duty of information to the consumer/debtor where not proved. (Duty of information for a Bank includes previous information about contract terms and conditions, consumer’s viability analysis…).

In other words, the order for payment procedure cannot be used by the creditor to avoid its obligations.

Debtor’s no-answer case

If the debtor does not pay and does oppose the claim, the termination of the procedure will be ordered by the Courts. This Court order will be enough for the creditor’s starting an execution procedure.

Debtor’s payment

If debtor attends the payment, as soon as the payment is proved, the Court will close the case.

Debtor’s opposition to the claim

If the debtor opposes the order of payment procedure, then the procedure will be conducted as ordinary debt collection litigation. Under LEC provisions the conduction will be:

• An “ordinary procedure” for claims over 6001 euros. (Procedimiento Ordinario)
• A “verbal procedure” for those ones up to 6000 euros. (Procedimiento Verbal)

Verbal procedures are abbreviated procedures on civil litigation.

If the claim is over 2000 euros, the debtor’s opposition will need lawyer’s representation.

If the claim is below 6000 euros, then the procedure will be immediately transformed in “Procedimiento Verbal” by the Court. (This will also apply monthly leases even if the amount is over 6000 euros)

If the amount is over 6000 euros, the creditor must file a lawsuit within one month under “Procedimiento Ordinario” rules. If the lawsuit is not filed within a month, the procedure will be dismissed and the judicial costs will be on the creditor.

Debtor opposition’s arguments under order of payment procedure may be the same when opposing the debt under procedural ordinary rules. The debtor cannot introduce new arguments that might cause defenseless to the creditor while the conduction of the ordinary/verbal procedure.

And this is all about order for payment procedure under Spanish Civil Litigation Act. As you can see, it is a quite simple procedure. But remember that, we are specialized in recovery, for further information, please contact us.

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