Small Claims Procedure

 

PART III ON THE SMALL CLAIMS AND NEGOTIABLE INSTRUMENTS PROCEDURES

CHAPTER ONE ON THE SMALL CLAIMS PROCEDURE

Section 812. Cases in which the small claims procedure is suitable

To be eligible to use the procedure the creditor must have bought

1. Whoever seeks payment from another for a net, specific, due and enforceable monetary debt of any amount may turn to a small claims procedure where such debt can be proven by any of the following means:

i). By documents which are signed by the defaulter or contain his seal, stamp or mark or any other physical of electronic sign, regardless of their form and nature or the support used.

(ii). By invoices, delivery notes, certifications, telegrams, telefaxes or any other documents which, even if created unilaterally by the creditor, are commonly used to prove credits and debts in relationships of the nature that appear to exist between creditor and debtor.

2. Notwithstanding the provisions of the preceding paragraph and in the event of debts meeting the requirements established in the said paragraph, a small claims procedure may also be lodged to claim the payment of such debts in the following cases:

(i). When, along with the document recording the debt, commercial documents are submitted evidencing a previous enduring relation.

(ii). When the debt is evidenced by means of certifications of non- payment of amounts owed as common expenses of communities of owners of commonhold land.

Section 813. Jurisdiction.

The Magistrate’s court of the address or place of residence of the debtor or, if the latter are unknown, the court of the place where the debtor can be found for the purposes of the payment request by the Court, shall be exclusively competent, except in the case of a claim of debt referred to in number (ii) of paragraph 2 of Section 812, in which case the Court of the place where the property is located shall equally be competent, at the discretion of the applicant.

In any case, the rules concerning express or contained jurisdiction in section 2 of chapter II of Part II of Book I of this Act shall not apply.

If the relevant enquiries on the address or residence conducted by the Court Clerk bear are unsuccessful or if the debtor is located in another court district, the judge shall issue an order deeming the proceedings to have come to an end, reflecting such circumstance in the records and reserving the creditor’s entitlement to bring the proceedings once again before the competent court.

Section 814. First request of the small claims procedure.

1. The small claims procedure shall commence with a request submitted by the creditor expressing the identity of the debtor, the address or addresses of the creditor and the debtor or the place where they reside or can be found and the origin and amount of the debt, accompanied by the document or documents referred to in Section 812.

Section 815. Admission of the claim and payment order.

1. If the documents submitted with the claim are among those described in paragraph 2 of Section 812 or constitute a prima facie evidence of the right of the claimant, confirmed by what is set out in the claim, the Clerk of the Court shall request the debtor to pay the claimant within a time limit of twenty days, proving such payment to the Court, or to appear before it to allege in a justified and grounded manner, in a writ of objection, the reasons why, in their opinion, they do not owe the amount claimed, either in full or in part. Otherwise they shall give account to the Judge who shall resolve as appropriate on admission of the initial claim to proceedings.

The payment order shall be notified in the manner provided for in Section 161 of this Act, with the warning that, should they fail to pay or appear alleging the reasons for refusal to pay, an enforcement order shall be dispatched against them in accordance with the provisions of the following Section.

2. In the claims of debt referred to in number (ii) of paragraph 2 of Section 812, notification shall be made at the address previously indicated by the debtor for notices and summons of all kinds relating to the affairs of the community of owners.

If no such address has been given, an attempt shall be made to serve the notice at the flat or premises and, should this also prove impossible, notification will be made in accordance with the provisions of Section 164 of this Act.

3. Should the amount claimed appear to be incorrect according to the documents attached to the plea, the Clerk of the Court shall notify the judge who, if appropriate, may make a proposal to the claimant to either accept or reject a proposed payment order for an amount lower than the amount initially claimed, which the judge shall specify.

The claimant shall be informed in such proposal that the plea shall be dismissed if they do not reply within ten days or rejects the proposal.

4. If the claim for the debt is grounded on a contract between a business person or professional and a consumer or user, the Clerk of the Court, prior to making the payment order, will give account to the Judge so that they may assess the possible abusive nature of any clause constituting grounds for the application or which may have determined the enforceable amount.

The Judge will review ex officio whether any of the clauses constituting grounds for the application or which may have determined the enforceable amount could be classified as abusive. If any clause appears that could be classified as such the parties will be given five days for a hearing.

Once they have been heard, the appropriate decision will be made by order within the following five days. Intervention of a lawyer or procurator will not be compulsory for these proceedings.

If any of the contractual clauses are deemed to be abusive, the order passed will set out the consequences of such consideration resolving on either the inadmissibility of the claim or continuation of the proceedings without applying the clauses which are considered to be abusive.

If the court does not find the existence of abusive clauses, it will declare as such and the Clerk of the Court will proceed to summons the debtor under the terms provided for in paragraph 1.

A direct appeal may be lodged against the order passed in all cases.

Section 161 Notices by way of copy of the decision or summons

1. Service to the consignee of notice of the copy of the decision or summons will be made in the court or to the address of the person who must be notified, summonsed, cited or required to appear, without prejudice to provisions in the field of enforcement.

Service shall be recorded on a certificate signed by the civil servant or by the court representative delivering it and by the person to whom it is served, whose name shall be recorded.

2. Where the consignee of the notice is found to be at the address and refuses to receive the copy of the decision or summons or to sign the certificate of service, the civil servant or the legal representative in charge of serving notice shall inform him that a copy of the ruling or summons remains at their disposal at the Court Office and that the effects of having served notice shall have come about, all of which shall be stated in the certificate.

3. Should the address at which an attempt is made to serve notice be the consignee’s domicile according to the electoral roll, or tax registries, or according to an official registry or to a professional body and should the defendant not be found there, notice may be served, in a sealed envelope, on any employee, family member or person with whom the defendant cohabits who is older than fourteen years of age, or to the building’s concierge, should there be one, duly informing the recipient that they are obliged to hand over the copy of the decision or summons to the consignee or advise them of it, if the consignee’s whereabouts is known, advising the recipient, at any event, of their liability in relation to protection of the consignee’s data.

Should notice be sent to the consignee’s non-temporary place of work, it shall be served, should the consignee be absent, to a person who claims to know them or, should there be an office in charge of receiving documents or objects, to whoever may be in charge of it, with the same advice as in the preceding paragraph.

The name of the person to whom the notice is addressed, the date and the time at which they were sought and not found shall be recorded on the certificate, as shall the name of the person who receives the copy of the decision or summons and their relationship to the consignee. Any notices served in this way shall take full effect.

4. Should nobody be found at the address at which notice is meant to be served, the Clerk of the Court, civil servant or the legal representative shall make an effort to find out if the consignee resides there.

If they no longer live or work in the address attended and any of the persons consulted know their current one, this will be recorded on the certificate of non-notification and notice will then be served at the address provided.

Should it turn out to be impossible to find out the defendant’s address through these means and should the claimant fail to designate any other possible addresses, the Court shall proceed in accordance with provisions of Section 156.

Section 156. Investigations by the court about the address.

1. In cases where the claimant states that he is unable to designate the defendant’s address or place of residence for the purposes of appear in court , the Court Clerk shall use any suitable means to find it and may, as appropriate, get in contact with the Registries, organisations, professional Bodies, entities and companies referred to in subsection 155 (3).

Upon receiving such communications, the Registries and public bodies shall proceed pursuant to the provisions governing their activities.

2. Under no circumstances shall the designation of an address be deemed impossible for the purposes of serving notice if such address is recorded in public archives or registries to which access may be gained.

3. Should the investigations referred to in subsection (1) lead to the address or place of residence being found, notice shall be served in the second manner set forth in subsection 152 (2) and, as appropriate, the provisions set forth in section 158 shall apply.

4. Should these investigations turn out to be fruitless, the Court Clerk shall issue an order stating that notice shall be served through public notices.

Section 816. Failure of the summoned debtor to appear and dispatch of the enforcement. Interest.

1. If the debtor does not appear, the Court will pass an order dispatch of the enforcement.

2. Once the enforcement has been dispatched, this will follow the procedure provided for in court judgments, and the challenge provided for in these cases may be made, but the small claims applicant and the enforcement debtor may not subsequently, in ordinary proceedings, claim the amount claimed in the small claims procedure or reimbursement of the amount obtained through the enforcement.

From the moment the order dispatching the enforcement is issued, the debt shall accrue the interest referred to in Section 576.

Section 817. Payment of the debtor.

If the debtor complies with the payment request, he shall be given the proof of payment staying of the proceedings as soon as the payment has been evidenced.

Section 818. Challenge by the debtor.

1. If the debtor files a writ of challenge in due time, the matter shall be resolved definitively in the relevant hearing and the judgment passed shall have the effect of res judicata.

The writ of challenge shall be signed by a lawyer and a legal representative if their intervention is required in view of the amount, in accordance with the general rules.

If the challenge of the debtor is based on the existence of an excess amount sought, action will be taken with respect to the amount recognised as due in accordance with subsection 21 (2) of this Act.

2. Where the amount of the claim does not exceed that set for an oral hearing, the Clerk of the Court will issue an order terminating the small claims procedure and resolving to continue the process in accordance with the provisions for that type of trial,  sending the challenge to the claimant, who may object to it in writing within a period of ten days. The parties, in their respective writs of objection and challenge, may request an oral hearing, following the procedures provided for oral hearings in section 438 et seq.

Where the amount of the claim exceed that set for an oral hearing and the claimant does not lodge the corresponding claim within a time limit of one month from the transfer of the writ of challenge, the Clerk of the Court shall issue an order declaring the staying of the proceedings and ordering the creditor to pay the costs. If the claim is lodged, the order putting an end to the small claims procedure shall resolve the transfer of such claim to the defendant, in accordance with the provisions of Section 404 et seq unless its admission is not appropriate, in which case it shall be resolved to notify the Judge for the latter to decide as appropriate.

3. At all events, when rents or amounts due from a lessee of urban property are claimed and the latter files a writ of challenge, the issue shall be definitively resolved by oral hearing, regardless of the amount.