How long to get a community debtor into court?

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pigs-might-fly
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How long to get a community debtor into court?

Postby pigs-might-fly » Tue Aug 18, 2009 7:53 am

As a general rule, how long does it take a competent administrator to get a long standing community debtor into court?
In our urbanisation, which has been established for five years, we have a major owner, (a locale) who has not paid a centimo in community charges at all.
Every year the AGM of the community approves the debt and authorises the President to take recovery action. Apart from a delay when negotiations about the debt were taking place and action was temporarily suspended, we are assured by our administrators that "the matter is in the hands of the courts".
How can it take four years since approving the initial year's debt with no visible action whatsoever - only assurances to our president that "the matter is in hand"?
IT IS COMPLETELY UNBELIEVABLE, in my opinion.
How do we know our administrators are not hand-in-glove with the locale's owner (a substantial businessman, who was also involved with the promoters of the Urb.?)
How can we get an embargo or charge on the locale as I feel this is the only way to protect our interests in the event of a sale or bankruptcy (the locale, a big furniture shop, now closed although their other main outlet in Marbella is still trading)
How can we be sure that our administrators will supply proof of debts to any notary involved in a possible sale, I know that lack of a certificate will not preclude a sale as the notary will write this into the sale contract, but THEN we can only pursue a new owner for TWO year's debts)
Location: The Dukeries.

katy
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Re: How long to get a community debtor into court?

Postby katy » Tue Aug 18, 2009 9:11 am

Our Urbanisation has just sacked the Administrator for a similar matter. One debtor who owes thousands was a relative and a couple of others his cronies. They are/were also listed as owning less land than they actually had! I have never known a community that works well :evil:

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DavidSearl
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Re: How long to get a community debtor into court?

Postby DavidSearl » Wed Aug 19, 2009 11:37 am

pigs-might-fly,


Yes, Spanish court cases can drag on for four years, but a simple suit for payment of debt ought not to do so.

1. You want to see the papers presented for the "demanda" as registered and received by the Court by your Administrator or his lawyer. The President of the Community must sign these papers as he is your legal representative. Ask him to show you a copy. If you have to, get it on the Agenda for the next AGM to have the President give a full report, documented, on the status of the case against your debtor. If nothing has been done and no documentation of the case is presented, something is definitely wrong. You want to see the papers, the "demanda" as stamped by the court.

2. For debts up to 9,000 euros, there is a relatively simple procedure called "proceso monitorio". This is designed specifically to allow Communities to act against the non-payers. No lawyer is required. The court will order the debtor to appear and if he does not, the court can order his assets seized. For a more complete description of this procedure, see Pages 325-326 of You and the Law in Spain, 2009-2010 edition. You can get this by clicking on Santana Books in the Andalucia Welcome at the beginning of this section.

Good luck with it, David Searl
You and the Law in Spain

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pigs-might-fly
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Re: How long to get a community debtor into court?

Postby pigs-might-fly » Wed Aug 19, 2009 12:17 pm

Thank you very much, David, for your prompt and helpful reply. :idea:
I am a great fan of your books and have often consulted them over the years.
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fljordan
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Re: How long to get a community debtor into court?

Postby fljordan » Thu Aug 20, 2009 6:45 am

DavidSearl wrote:2. For debts up to 9,000 euros, there is a relatively simple procedure called "proceso monitorio".

Section 812 of the CPR 1/2000 Civil Procedure Rules ‘Ley 1/2000, de 7 de enero, de Enjuiciamiento Civil’ provides a faster and easier procedure (proceso monitorio) which simplifies, speeds up and reduces the costs of litigation in court in an action for recovery of arrears of commonholders up to 30.000 €.
DavidSearl wrote:No lawyer is required.

The order of payment procedure (proceso monitorio) does not require the intervention of lawyers but problems may arise where the debtor opposes the payment at court, in this case the proceedings require that the claimant must be represented by a lawyer.

Although it is not mandatory to go to court through a lawyer and /or ‘procurador’, however if the community decides to hire a lawyer, the debtor shall pay its fees. Section 21 (6) of the Commonhold Act 49/1960 provides:
‘Where in the initial application of the order of payment procedure the professional services of lawyer and legal proxy are used to claim sums due to the commonhold, the debtor shall pay, subject in any case to the limits set forth in rule 394 (3) of the Civil Procedure Rules, the fees incurred as a result of their intervention, irrespective of whether the debtor satisfied the payment requested or did not appear in court. In those cases where there is opposition, the general provisions regarding legal costs shall be followed. However, should the creditor’s claim be fully upheld, it should be included the lawyer’s and legal proxy’s fees, even where their intervention was not legally compulsory’
Where the comunity foresees that eventually the debtor will pay, no legal representative would be needed but problems arise where the debtor contests the claim. If that occurs it is advisable to be represented by a lawyer from the beginning. Likewise, it shall be compulsory to use a lawyer where the debt is more than 900 € and it is necessary to seek attachment execution even if the debtor does not contest the claim. (rule. 539 (1) CPR 1/2000

The main feature of the order of payment procedure is that depending on the debtor’s actions, once the lawsuit is served, the order for payment procedure could be brought to an end and the matter transferred to the ordinary civil court proceedings which do not have the same privileges for the creditors, nor the same costs of litigation.

- If the debtor, once notified, complies with the demand for payment within 20 days, the file is shelved.

- If the debtor lodges a statement of opposition the procedure changes depending of the amount of the debt:

a) Where the debt is equal or less than 900 €, the procedure shall be performed under the rules of the ‘oral procedure’.
b) Where the debt is more than 900 €, the procedure shall be performed under provisions established for the ordinary procedure.

- If the debtor does not turn up to court or contest, the judge shall rule and proceed with the execution on requisition of the creditor. The ultimate sanction will be a charging order on the property.

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DavidSearl
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Re: How long to get a community debtor into court?

Postby DavidSearl » Fri Aug 21, 2009 2:04 pm

fljordan has said it all and I heartily second his complete response.

Best Regards, David Searl
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sampedrena
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Re: How long to get a community debtor into court?

Postby sampedrena » Mon Aug 24, 2009 4:38 pm

Thanks to David Searl and fljordan for excellent information on proceso monitorio. Quick question; is the limit for the process without a lawyer 9,000 euros or 900 euros ? Also, how can we convince our President and Administrator that this system exists ? Despite showing them David's book, postings on this forum, and the actual articulo in the LPH, they are in total denial that this is a possibility. Our community is in a dire situation with bad debts currently at 40% of annual quota income, some of those debts 5 years old. We are just keeping afloat because the people who do pay are having to dip into their pockets and pay extra quotas.
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pigs-might-fly
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Re: How long to get a community debtor into court?

Postby pigs-might-fly » Mon Aug 24, 2009 5:04 pm

The answer is to call an extraordinary general meeting of your community (25% of owners, by cuotas, OR the President alone, is needed).OR you can wait until your regular AGM
Vote out the President & Administrators & replace with people who actually have a brain in their heads.
Research new administrators before the meeting and have them come along to it so they can make a presentation.
Cross fingers. :D
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DavidSearl
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Re: How long to get a community debtor into court?

Postby DavidSearl » Mon Aug 24, 2009 5:13 pm

Dear Sampedrena,

The limit for the simplest version of the "proceso monitorio" is 900 euros, as fljordan correctly remarks. I have to thank him again because even in my book I have put 9,000 euros, which is not correct. If your Administrator and President are not capable of understanding the law, perhaps a few of the Community members should club together and find a good lawyer to convince them. Let's keep in mind that there may be other reasons why they prefer to go through the standard procedures for debt recovery, which have not yet been brought out.

Thank you for your post, David Searl
You and the Law in Spain

fljordan
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Re: How long to get a community debtor into court?

Postby fljordan » Mon Aug 24, 2009 5:25 pm

pigs-might-fly wrote:replace with people who actually have a brain in their heads

Totally agree


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