Community
Law Corner:
Article 10
Collecting from the debtors takes time
By José Luis Navarro www.intercala.com
The Solicitor and Property Administrator for Intercala Administration
and
Pete Woodall (Woody's Los Boliches)
This article first appeared in the Euro Weekly News, Costa del Sol Edition March 2012
When a community takes legal action against a debtor it is often wrongly assumed that the outstanding money will be recovered by their lawyer as if by magic in a relatively short period of time. Unfortunately this is not the case, there are a great many time consuming steps that have to be taken before the money ends up on the community table. Here is a summery of the main ones.
Firstly the debt has to be approved as owing and minuted as such at a general meeting. Once this has happened then the debtor has to be officially notified by “Burofax”. This is a communication that has to be signed for, similar to a recorded delivery, but the Burofax actually specifies the contents of the communication. If the Burofax and its message can not be delivered because the debtor is unavailable, notification is then made by displaying it on the community notice board.
Either way, once the debtor has been notified, then the President and the administrator must produce a certificate that specifies: the amount of the debt, the general meeting at which the debt was approved, the way in which the debtor was notified and it must also contain a declaration the debt is still unpaid. This certificate is then given to the community’s lawyer who presents it to a Court Registry - and only then can the legal proceedings commence.
The Court Registry will forward the papers to one of its claims courts, the court once it accepts the case will give an order to their General Court Notification Office who will instruct an officer of the court to locate the debtor to inform them that the court intends to take action. The officer is required to visit the debtors address at least twice. If the debtor can still not be contacted, then a request is made to the Police, Social Security Office or Town halls etc for additional information as to where the debtor might be found. Again the officer is required to visit any new address, at least twice. If the debtor is not found then notification is made by a notice on the official court notice board.
From the time of this notification the debtor has twenty days to either; pay, do nothing, or refuse to pay. If they chose to pay then the case is closed, if they choose to do nothing, then the court will order and execute an embargo with costs.
If the debtor refuses to make payment then there is a trial, in nearly all cases the community wins and the court obliges the debtor pay the debt, plus costs.
If the debtor still does not pay, then after another twenty days the community has the right to request the court to seize the debtors assets or property. If there are no known assets then a search is instigated to locate some. When the debtor has assets that are easily liquefiable - bank accounts, deposits, salaries or a pension then the community is in luck, as the court can simply instruct the bank or similar to hand over the amount of the claim plus costs.
If however the assets are in the form of property, say the house within the community, then there are even more delays. The house must be embargoed and valued by an official architect and then be put up for auction but first notice of the auction or “subasta” must be published officially. When the auction finally takes place and if the property is sold only then can the money be transferred to the community.
Spanish courts have thousands of similar cases, and no matter how hard your lawyer works, each of these steps takes time but finally the court will settle with the debtor and resolve the situation.
As usual,
We at Intercala Administration strongly suggest you always seek proper and competent advice in all matters regarding the law.
Collecting from the debtors takes time
By José Luis Navarro www.intercala.com
The Solicitor and Property Administrator for Intercala Administration
and
Pete Woodall (Woody's Los Boliches)
This article first appeared in the Euro Weekly News, Costa del Sol Edition March 2012
When a community takes legal action against a debtor it is often wrongly assumed that the outstanding money will be recovered by their lawyer as if by magic in a relatively short period of time. Unfortunately this is not the case, there are a great many time consuming steps that have to be taken before the money ends up on the community table. Here is a summery of the main ones.
Firstly the debt has to be approved as owing and minuted as such at a general meeting. Once this has happened then the debtor has to be officially notified by “Burofax”. This is a communication that has to be signed for, similar to a recorded delivery, but the Burofax actually specifies the contents of the communication. If the Burofax and its message can not be delivered because the debtor is unavailable, notification is then made by displaying it on the community notice board.
Either way, once the debtor has been notified, then the President and the administrator must produce a certificate that specifies: the amount of the debt, the general meeting at which the debt was approved, the way in which the debtor was notified and it must also contain a declaration the debt is still unpaid. This certificate is then given to the community’s lawyer who presents it to a Court Registry - and only then can the legal proceedings commence.
The Court Registry will forward the papers to one of its claims courts, the court once it accepts the case will give an order to their General Court Notification Office who will instruct an officer of the court to locate the debtor to inform them that the court intends to take action. The officer is required to visit the debtors address at least twice. If the debtor can still not be contacted, then a request is made to the Police, Social Security Office or Town halls etc for additional information as to where the debtor might be found. Again the officer is required to visit any new address, at least twice. If the debtor is not found then notification is made by a notice on the official court notice board.
From the time of this notification the debtor has twenty days to either; pay, do nothing, or refuse to pay. If they chose to pay then the case is closed, if they choose to do nothing, then the court will order and execute an embargo with costs.
If the debtor refuses to make payment then there is a trial, in nearly all cases the community wins and the court obliges the debtor pay the debt, plus costs.
If the debtor still does not pay, then after another twenty days the community has the right to request the court to seize the debtors assets or property. If there are no known assets then a search is instigated to locate some. When the debtor has assets that are easily liquefiable - bank accounts, deposits, salaries or a pension then the community is in luck, as the court can simply instruct the bank or similar to hand over the amount of the claim plus costs.
If however the assets are in the form of property, say the house within the community, then there are even more delays. The house must be embargoed and valued by an official architect and then be put up for auction but first notice of the auction or “subasta” must be published officially. When the auction finally takes place and if the property is sold only then can the money be transferred to the community.
Spanish courts have thousands of similar cases, and no matter how hard your lawyer works, each of these steps takes time but finally the court will settle with the debtor and resolve the situation.
As usual,
We at Intercala Administration strongly suggest you always seek proper and competent advice in all matters regarding the law.