The Spanish Supreme Court in a decision dated 5th of January 2010 decided to change an important practice used during many years. This change is basically due to the fact that many First Instance Courts are completely collapsed and by modifying the rules, the Supreme Court allows the First Instance Courts to close down a lot of their cases.
Practice before Supreme Court decision
Before this decision, in a “juicio monitorio” (the type of claim that we have almost always been presenting in your cases, the cheapest and the quickest) when the Court could not find the debtor in the address that we mention in the claim, the same Court was investigating other possible addresses and used to notify the debtor in the new addresses.
The new practice
The Supreme Court has changed this practise as it consider the practise to be an incorrect way of acting in accordance with the Spanish law and declared that the First Instance Courts, when the new domicile found correspond to another Court (in another city), instead of notifying this new Court and carry on with the case, now the Court can close down the case and return all the documents to the claimant.
Furthermore, now it is also general rule that the First Instance Court will not publish any edicts in this type of case (juicio monitorio). In our opinion this will complicate the chances of getting a judgement in a “juicio monitorio” when the debtor has completely disappeared.
(An edict is a document that the Court publishes, when the debtor can not be found and allows us to carry on with the claim without the notification of the debtor.)
These kinds of cases are not submitted to the new rules of the Supreme Court and allow the possibility of publication of edicts.
Though it takes more time to achieve a judgment through the ordinary proceedings than “jucio monitorio”, whereas when we finally get a positive judgment and starting the execution of this judgment, part of the patrimony (even sometimes the totality of it) has mainly disappeared because of the following:
1. The time spent in Court to get the judgment (nothing can be done against it, it is a question of quantity of cases supported by the Courts and there are some important differences between Courts all over Spain).
2. The possible existence of other privileged creditors like banks and Public Administrations who can get paid quickly because of their prerogatives (special execution, mortgages, etc…).
Practical conclusions which shall affect our cases:
1. As we consider the risk to be high getting the “juicio monitorio” through the process, we shall directly start ordinary proceedings. However, this will increase the costs of the process.
2. We cannot guarantee that though getting the final judgment executed, the debtor will still have patrimony left to fulfil the judgment as the delay in the Spanish Courts is very high and other creditors will recover their debt first (Public Administration, banks).
3. If during an execution of a judgment we do not get information on any patrimony during 6 – 8 months, we will close down the case.