DEBT COLLECTION ATTORNEY
How can I file a complaint against someone who owes me money?
OTHER THINGS YOU MIGHT FIND INTERESTING
INTEREST.— This is a very important issue that is often overlooked: for debts arising from commercial or industrial relationships, the interest rate to be claimed is higher than the rate applied when collecting a debt under private or individual law.
Our Alicante-based law firm, Carlos Baño León—specialists in debt collection and unpaid bills—advises you not to settle for claiming only the statutory interest on the debt.
Law 3/2004 of December 29, on measures to combat late payment in commercial transactions (Directive 2000/35/EC of the European Parliament and of the Council of June 29, 2000), established very high interest rates to combat late payment in commercial transactions.
According to the aforementioned legal provision, a delay shall be deemed to exist—and interest shall therefore be payable—thirty calendar days after the date of receipt of the goods or provision of the services, unless the contract specifies a different period.
In addition to this interest, the creditor shall be entitled to reimbursement of any expenses incurred as a result of such delays.
The interest rate is that set by the European Central Bank every six months, and it is always significantly higher than the statutory interest rate, which applies to debts arising from non-commercial relationships, is officially approved each year, and is published in the Official State Gazette (BOE).
The attorneys at Carlos Baño León specialize in debt collection—whether for commercial or service-related debts—and have been successfully applying these high interest rates in their legal claims, much to the satisfaction of our clients. Please feel free to contact us.
Finally, you should be aware that once legal proceedings have begun and the judgment becomes final, the interest awarded in the judgment will increase by two percentage points from the date you file for enforcement of the judgment until the debtor makes payment.
In the course of your industrial, commercial, or professional activities, you have likely encountered situations involving non-payment of invoices, promissory notes, bills of exchange, checks, and other instruments of credit, and you may have had many questions about how to handle such situations.
Your attempts at amicable resolution won't always yield the desired result, and you may then find yourself wondering whether or not to entrust a professional with the task of collecting your debt.
Debt Collection Attorney
For many years, we have provided an efficient commercial debt collection service at very competitive rates, tailored to your needs.
We operate on the basis of a prior estimate and a professional services contract, always striving for transparency, certainty, and security.
HOW DO WE OPERATE?
A) PRELIMINARY PHASE
After receiving the client’s request, we issue a formal demand for payment with a certified record. This is very important for demonstrating the debtor’s intent to default before the judge, which will almost certainly result in the debtor being ordered to pay costs.
We do not charge you upfront for this service; instead, we agree with you on a percentage that we will collect if the debtor pays.
We will prepare a credit report at no cost to you if our collection efforts have been unsuccessful.
B) LEGAL PHASE
There are several types of legal proceedings for collecting debts or unpaid bills, which we summarize below:
1) MONITORIO PROCEEDINGS: for the collection of a debt through the submission of invoices or any similar document; this consists of a court order granting the defendant 20 days to file an objection or accept the claim. If the defendant does not respond or acquiesces, a ruling is issued immediately and is enforceable. If the defendant objects, the proceedings continue according to the appropriate process based on the amount in dispute—that is, either an ordinary lawsuit or an oral hearing.
The only drawback of this type of legal proceeding is that there is no award of costs, which is why our fees are very affordable, making it easier for clients to choose this legal proceeding.
However, our advice is to use this procedure only for claims involving relatively small amounts. Our firm has an extremely high success rate in these cases.
2) ORDINARY COURT PROCEEDINGS: The law specifies the types of claims that must be heard through this procedure, which applies only to claims exceeding 6,000 euros.
The lawsuit is initiated by filing a complaint, which must be drafted by an attorney and signed by a legal representative; once filed with the court, it must first be accepted by the court before proceedings can begin.
Once the complaint is accepted, the defendant will be given 20 business days (excluding Saturdays and holidays) to file a response. Once this period has elapsed, regardless of whether the defendant has filed a response, the court will schedule a preliminary hearing, followed by the trial.
As you can see from the numerous articles and news items featured on our website, our success rate in both court and out-of-court claims is extremely high.
3) ORAL TRIAL: for legal claims involving debts of less than 6,000 euros; briefly, the process begins with the acceptance of the complaint and its service on the other party, who has 20 business days to file a possible defense, and once any such objection has been verified, if there is one, the court proceeds to schedule a hearing—that is, it sets a date for the oral hearing—after which a judgment is rendered.
Our advice is that, when dealing with small claims, you should NEVER file this type of lawsuit but instead proceed directly to a payment order proceeding for the reasons we outlined above.
4) EXECUTORY PROCEEDINGS FOR BILLS OF EXCHANGE: is a summary judicial proceeding—that is, one that is brief and expedited—for the judicial enforcement of bills of exchange, promissory notes, checks, or other enforceable instruments, provided that such documents or instruments in the creditor’s possession meet certain minimum legal requirements. The proceeding begins with the quintessential enforcement measure, which is the seizure of the debtor’s assets, without prejudice to the debtor being granted a period of time to present arguments in their defense, bearing in mind that the grounds for opposition granted to the debtor by law in this case are minimal and almost all relate to compliance with the formal requirements of the aforementioned instruments or documents, aside, of course, from the claim of payment.
If you are the owner or holder of any of these securities or documents, you are absolutely guaranteed to recover your money, provided, of course, that your debtor is solvent and has assets that can be seized.
We will discuss our fees and payment terms with you.
OTHER ISSUES OF INTEREST – Debt Collection Attorney
EVIDENCE.
During court proceedings, in both summary proceedings and ordinary proceedings, the party bringing the claim must present evidence demonstrating the existence of the debt, as this is the primary requirement or obligation of the claimant; meanwhile, the obligation of the defendant is to prove that the debt does not exist, either by showing that it has been paid or by raising a legal defense.
The procedural rules governing ordinary civil proceedings require that, when drafting and filing a complaint with the court, the relevant evidence—including witness testimony, documentary evidence, expert testimony, and so on—be submitted along with it.
Hence the need to file a lawsuit with a reasonable chance of success in court that provides sufficient evidence of the debt’s existence, since this is the time to do so—at the time of filing the complaint—as the opportunity to present evidence is limited thereafter.
Thanks to our training and experience, the debt collection and default claim attorneys at Carlos Baño León know that this is a crucial issue; therefore, we never file a legal claim unless it is accompanied by substantial documentary evidence.
COURT FEES.
We do not want to conclude this article without mentioning two important points. One of these is that if the client filing the claim is a business entity, it must pay a court fee, the amount of which varies depending on the type of proceeding; specifically, €100 for a small claims proceeding, €300 for an ordinary proceeding, and €150 for an oral hearing (this expense is reimbursable as part of the legal costs).
COASTS.
Spanish procedural law governs the imposition of costs, which include fees for attorneys, legal representatives, expert testimony presented at trial, and other necessary expenses; the party whose claims are not upheld is required to pay these costs. However, for costs to be awarded against a party, the claim must be dismissed in its entirety; if the dismissal is only partial, each party will bear its own costs.
In this chapter, the role of Carlos Baño León’s team of attorneys—who specialize in debt collection and unpaid claims—is particularly significant when it comes to taking steps prior to filing a lawsuit, as the court takes this into account when awarding costs.
DURATION AND PROCESSING.
The duration of a legal proceeding to collect a debt—whether through summary proceedings or ordinary proceedings—depends largely on the court to which the case is assigned and, of course, on the location of that court, since the workload varies from one jurisdiction to another, as does the speed at lequel the courts operate.
PROVISIONAL ENFORCEMENT OF THE JUDGMENT.
Obtaining a favorable judgment at the trial court level allows for its provisional enforcement even if the defendant files an appeal, and this is a very important issue because, in most cases, this right this right, causes the losing party to withdraw the appeal or drop the case if they have filed one when faced with provisional enforcement, since this entails the early enforcement of the judgment without the requesting party having to provide any type of security or guarantee.
In fact, based on our many years of experience, we can say with complete confidence that once a favorable judgment has been obtained, it is usually easy to collect the debt immediately and ensure that the losing party waives their right to appeal the judgment.
The attorneys at Carlos Baño León, who specialize in debt collection and unpaid bills, have a proven track record of successfully handling provisional enforcement proceedings.
This provisional enforcement will consist of seizing either the balances in bank accounts held by the debtor or registering liens on real property.
ADOPTION OF PRECAUTIONARY MEASURES.
This is a very interesting point that arises relatively frequently: in many cases, the debtor’s financial situation may raise suspicions that they will attempt to prevent the completion of the legal proceedings or the enforcement of a favorable judgment. It is in such cases that procedural law permits the filing, along with the complaint seeking judicial debt recovery, of a request for measures such as a preventive attachment against the defendant’s assets, at the outset of the trial to ensure that, once the trial is over, the judgment can be enforced.
The preliminary injunction may, among other things, consist of a freeze on the debtor’s bank account balance or an entry in the Property Registry regarding the seizure of real property.
Procedural law generally requires that, in order to rule on this motion, the judge schedule a hearing at which the parties will appear to discuss whether the two requirements established by law are met:
1. The existence of a risk of insolvency during the course of the proceedings.
2º.- The appearance of a valid legal claim, understood as a preliminary or prima facie assessment based on indications, which allows the Judge to consider that the claim being brought is well-founded in law and may succeed, without this implying any advance ruling on the final judgment.
SETTLEMENT AGREEMENT.
From the time a legal claim for debts or unpaid amounts is filed until the hearing is held, it is possible for the parties to reach an agreement, which would be formalized through what is known as a “court-approved settlement agreement.” Needless to say, in this agreement the parties may agree on whatever they wish in accordance with their interests, which will result in the termination of the proceedings.
LEGAL REPRESENTATION IN COURT.
In court proceedings, except in limited circumstances, the interested party is required to be represented before the Court by a court representative, who is a professional distinct from the attorney. The Court communicates to this representative all rulings and procedural actions relevant to the client during the court proceedings, and the representative immediately forwards them to the attorney.
The representation by the court representative is granted either through a notarized power of attorney or through a power of attorney known as *apud acta*, which involves the interested party appearing before the Court to appoint the court representative.
You should know that even if the court proceedings take place in a town or judicial district different from your own, you may execute this *apud acta* power of attorney at the Courts of your own town or judicial district, by appearing there in person. Once this has been done, you will be given the said power of attorney, or a copy of it, so that you may send it to your court representative or to your attorney.
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