How do I claim my claim in Spain?

When recovering debts in Spain, the creditor should always try to settle the matter with the debtor out of court, as court proceedings in Spain are often lengthy, labour-intensive and costly.

Therefore, in practice, about 90% of all disputes are settled out of court, only in about 10% of cases the involvement of courts is necessary.

In a first extrajudicial step, the creditor can put his debtor in default.  A debtor is requested to pay by means of a request for payment by registered mail (or by a so-called “Burofax”, a special form of registered mail) with a reasonable deadline and is in default after the deadline has expired.
Should legal proceedings become necessary, the Spanish
Civil Procedure Code (Zivilprozessordnung), the court will be preceded by an order for payment procedure. Up to a maximum amount of 30,000 €, monetary debts due can be asserted in a simplified dunning procedure.

The prerequisite for the legal dunning procedure is that the claim is a due monetary claim. In the application, the amount claimed must be specifically quantified. The dunning request must be filed with the court of the debtor’s domicile. An order signed by the debtor, invoices, proof of delivery or other documents documenting the existence of the claim must be submitted.

There is no obligation to hire a lawyer for the dunning procedure. However, the procedure is
experience has shown that the involvement of a lawyer considerably simplifies matters for the creditor. This begins with the determination of the address of the competent court and the submission of the dunning letter to the court. If the application fulfils all requirements, the court will send the debtor a demand for payment with the request to pay the claim or to file an objection within 20 working days.

If the debtor lodges an objection, the dunning procedure leads to ordinary legal proceedings.  If the debtor does not raise an objection, an enforcement order is issued ex officio, against which no further appeal is possible. The experience with the judicial dunning procedure is quite positive for undisputed claims in Spain. Only in a small proportion of cases is the transition to legal action necessary.

Should it become necessary to assert the claim in court, only one procedure through the ordinary legal channels (“Juicio Ordinario”) is available. All essential documents must be submitted in the original. Furthermore, the appointed lawyer needs a detailed Spanish notarial power of attorney.
The duration of the proceedings varies extremely from court to court, even within the same Spanish province. However, a minimum duration of 1 to 2 years must always be expected.

After court fees were abolished for some years, court fees were reintroduced for most procedural acts 2 years ago. Currently, however, court fees for natural persons have been abolished again (as of March 2016)!
The lawyer’s fees for court proceedings are based on the amount in dispute. The Spanish bar associations prescribe minimum fees. In addition to the lawyer’s fee, the fees of the trial agent (“procurador”) are also payable. According to the Spanish Code of Civil Procedure, the procurador is responsible for filing the claim, which he must sign alongside the lawyer. In addition to the timely submission of the pleadings prepared by the lawyer, the procurador’s duties include the acceptance of summonses and notifications from the court.

In summary, the creditor should first of all endeavour to pursue the claim out of court before the court action is taken. The dunning procedure is particularly suitable for the assertion of lower claims, the recovery of which would be too costly by legal action. A lawyer should already be involved in the dunning procedure, as he or she is familiar with the strict formalities of the application procedure and any subsequent legal action.