With the publication of Law 1/2000, of January 7, on Civil Procedure, which came into effect in January 2001, the order for payment procedure was the main jurisdictional innovation for credit protection in Spain. Making the debt collection process more efficient, faster and lower costs were its main objectives. Currently, it is a process focused on claiming monetary, liquid, past-due, enforceable and determined debts mainly for small and medium-sized entrepreneurs despite the fact that, in practice, it is also used by large corporations.
Since its enactment and as a result of its operation, the payment order has undergone several changes, but after them, the process has been losing its effectiveness year after year. Bearing in mind that in our legal system there are other means to claim monetary debts and that the Monitory is a voluntary process and the one most used today. Is it viable and effective? Is it the process it was intended to be today?
The following graph, based on the latest data collected from the General Council of the Judiciary, corresponding to 2016, displays the different forms of termination of the order for payment process. Many are those who criticize this process, however, based on objective data we will analyze its viability:
With the figures presented and, mainly based on the 44.6% that ends in payment or execution, I join the opinion of authors who consider that the order for payment process fulfills its function in the collection of debts. I think that in a short period of time, about half of the initial requests end with either payment or an executive title. It is true that the figure could be higher and that over the years it has only decreased but even so, it continues to comply.
On the other hand, 8.1% end up in opposition. After it, the corresponding lawsuit is opened for the corresponding amount; that is, verbal judgment – art.250.2 LEC- if the amount is less than € 6,000 and in ordinary – art. 249.2 LEC- when this limit is exceeded. We appreciate a certain ease when filing the opposition, a dangerous weapon in the hands of those debtors whose aim is to delay the procedure. In this case, the order for payment process will only have served to delay the credit right more.
The high number of inadmissions represented by 47.3% is striking; that is, almost half of the initial monitoring petitions end with the inadmissibility of the court clerk due to doubts about the legal requirements, lack of procedural requirements … (Appeal order). Therefore, due to this strict control, we must be cautious and strictly respect the requirements established in the LEC otherwise we want to see our request inadmissible. It is important to have the debtor’s domicile well determined since, otherwise, the proceedings will be filed without further formalities.
Other data to take into account are its duration and cost. Regarding the first, despite not complying with the European mandate, according to statistics from the CGPJ, it has an average durability of 5.9 months, so it is still more laconic than the rest of the routes. Regarding the second, the intervention of a lawyer or solicitor is not mandatory for the initial request (regardless of the amount), once the threshold of € 2,000 has been exceeded, by virtue of RD 1/2015 it will be necessary to pay Court Fees for legal persons. By way of example, for a claim of € 2,500, € 112.5 must be paid as Court Fees, not counting the attorney and attorney fees. These rates go up progressively as the amount of the debt to be claimed increases.
In conclusion, the legislator partially sees his will fulfilled, either because of his facilities or because of its low cost; it is an eminently practical and to a certain extent efficient process. The fact that he considers that this process fulfills its mission does not imply that he affirms that the creditor’s credit rights cannot be protected in any way; However, it must be taken into account that this is difficult to achieve without affecting and undermining the right of the “debtors”; The fact that the word debtors is in quotation marks is not a coincidence because they are not debtors, until the contrary is proven and, the mere action of presenting a simple request for payment that is not answered within 20 days already considers you as such. It is a useful and at the same time strict tool whenever a person can be immersed in an executive process, because his opposition has not been presented in a timely manner.
In short, the order for payment process will be recommended to a greater or lesser extent depending on the case. On some occasions, the process that the legislator intended may be fast and efficient; and in others, it can be a mere delay in the collection of the debt.