They are claiming your revolving card debt: 20 days

The case, in five lines

What is brought

Written opposition to the order for payment, reasoned and substantiated, denying the debt and raising nullity of the revolving credit for usury and, in the alternative, nullity of the interest clause for lack of transparency, with a claim for everything overpaid.

Before which court

The Civil section of the Tribunal de Instancia (the first instance court) where the order for payment is pending, which is the one for the debtor's domicile, with appeal to the Audiencia Provincial (the provincial appeal court).

Deadline

Twenty working days from service of the demand, a lapse period with no possible extension (article 815.1 LEC, the Spanish Civil Procedure Act). Once it passes with no opposition and no payment, enforcement is ordered (article 816 LEC). Nullity of the contract never lapses, but recovery of money is governed by the five year period of article 1964.2 of the Civil Code.

Who can bring it

The holder who has been served with the demand, and each co holder or guarantor served separately. If the person served has died, the heirs who accepted the estate and are answerable for the debt.

Financial risk

Failing to oppose in time is the greater risk: article 816.2 LEC shuts the door on later disputing the amount claimed in ordinary proceedings. Opposing opens a trial with a costs risk if every head of claim is dismissed (article 394.1 LEC), although that same provision excludes costs where the case raises serious doubts of fact or law.

Twenty days, a lapse period, and what happens on day twenty one

Article 815.1 LEC provides that the court registrar requires the debtor, within twenty days, either to pay the applicant and prove it to the court, or to appear and set out in a reasoned and substantiated written opposition why, in the debtor's view, the sum claimed is not owed. The demand is served with an express warning of what follows.

What follows is in article 816.1 LEC: if the debtor neither pays nor appears, a decree closes the order for payment and the creditor's bare application is enough for enforcement to be ordered, without waiting the twenty days of article 548. From silence to attachment there is a single step, and the creditor takes it whenever it suits.

And paragraph 2 of that same article closes the discussion for good: the debtor under enforcement may not later seek in ordinary proceedings the return of whatever the enforcement yields. A usurious credit that nobody disputed within twenty days is collected in full, with the interest of article 576 on top. The deadline is not a formality, it is the case.

Do not rely on the court spotting the unfair terms for you

For years article 815.4 LEC required the judge to examine of his own motion whether any term was unfair before issuing the demand. That paragraph disappeared on 20 March 2024 with the reform brought in by Royal Decree Law 6/2023. Anyone still citing it is reading a statute that no longer exists, and cases have been lost on that reading.

Today the provision sits in article 815.3 LEC and is drafted as a power, not a duty: if the debt is considered to arise from a contract between a trader and a consumer, the judge, should he think a term might be unfair, may by order put to the creditor a proposed demand for the sum left once the amount produced by that term is excluded. May, not must. And if the creditor rejects the proposal, it is treated as withdrawn and must go to the declaratory proceedings that correspond.

Article 7.1 of Directive 93/13 requires Member States to provide adequate and effective means to stop the use of unfair terms, and article 6.1 provides that such terms are not binding on the consumer. That is a good argument inside the case, but it is no insurance policy: the only guarantee that anyone looks at your contract is that you oppose in time.

What they file is usually a printout and an unsigned contract

Article 812 LEC allows recourse to the order for payment with documents signed by the debtor, or with invoices, certificates and any other documents which, even though created unilaterally by the creditor, are of the kind that usually record debts in relationships of that class. That second door is the one the funds use: a balance certificate they issue themselves.

That is enough to open the order for payment, but not enough to win the trial that follows. There article 217.2 LEC applies: it is for the claimant to prove the facts from which the legal effect sought follows. If it does not produce the signed contract, the pre contractual information and the complete run of movements, it has proved neither the rate agreed nor how the balance reached that figure.

The assignee is also hampered by its own origin. It bought a portfolio for a fraction of face value and often received the data without the paperwork. When the original contract is called for, what turns up is an unsigned document, an illegible copy or nothing at all, and the claim is left without foundation.

Opposition turns the matter into the trial that corresponds

Article 818.1 LEC says it plainly: if the debtor files an opposition in time, the matter is finally decided in the trial that corresponds and the judgment has the force of res judicata. The fast track ends and a real action begins, with evidence, a hearing and the lender obliged to prove what it asserts.

If the amount does not exceed the ceiling of the oral trial, the registrar closes the order for payment and the matter continues down that route. If it does exceed it, article 818.2 LEC gives the applicant one month to file the corresponding claim: if it fails to do so, a decree stays the proceedings and orders the creditor to pay costs. It is not unusual for a fund that bought the debt cheaply to prefer not to spend on a contested trial.

In that trial the balance shifts. You stop being the person receiving a demand and start attacking the contract, and you can counterclaim for a declaration of nullity and repayment of everything overcharged. A four thousand euro demand often ends with no debt at all and a balance in your favour.

Inside the trial: usury first, transparency next

Article 1 of the Ley de Represión de la Usura (the 1908 Usury Repression Act) declares void any loan contract stipulating interest notably higher than the normal price of money and manifestly disproportionate to the circumstances of the case. The test the courts apply today, set by the doctrine of the Tribunal Supremo (the Spanish Supreme Court), compares the contract's annual rate with the average rate the Banco de España (the Spanish central bank) published for cards and revolving credit on the date of signature, and treats as usurious a rate exceeding it by more than six points. There is no fixed threshold, and measuring against today's average instead of the average for the year of the contract turns a winning case into a losing one, because that average has been falling for years.

If usury succeeds, article 3 of the same Act provides that the borrower is bound to hand over only the sum received, and that if part of it and the accrued interest have been paid, the lender must return whatever exceeds the capital lent. On an old revolving card with a low instalment, what was paid almost always exceeds what was drawn, so the debt being claimed disappears and a balance is left in your favour.

Where the gap falls short of six points, the second line of attack comes in, and it stands on its own. The second paragraph of article 83 TRLGDCU (the Spanish consumer protection act) declares void of full right any terms incorporated in a non transparent way to the detriment of consumers, and article 82.2 places the burden of proof on the trader who claims a term was individually negotiated. What is opaque in revolving credit is not the figure of the annual rate but the mechanism: an instalment that barely repays capital, capital rebuilt with every drawdown and an indeterminate real repayment period. Once the interest clause is void, the credit survives at no cost.

The money you recover runs on a clock of its own

Two things that are constantly confused deserve to be kept apart. Nullity, whether for usury or for lack of transparency, neither lapses nor prescribes: it can be sought even if the card was signed twenty years ago and even if it has been cancelled. What does have a time limit is recovery of the money, a personal action subject to the five year period of article 1964.2 of the Civil Code.

With revolving credit that period runs in respect of each monthly payment, so what is recovered is the overpayment made in the five years before the claim. Eighty two days are added to the count where it crosses the suspension of time limits in 2020. The calendar therefore works against you: every month of delay means monthly payments dropping off the old end of the count. Article 1973 of the Civil Code interrupts prescription by an out of court claim and by bringing the action before the courts, which here is the counterclaim that follows the opposition.

If the twenty days have already run out, the opening left is narrow and it is better to know it. Once enforcement is ordered, article 816.2 LEC refers to the opposition available against court judgments, which is that of article 556 LEC: ten days, and only payment, lapse of the right to enforce, or agreements recorded in a public deed, with no suspension of the enforcement. The unfair terms ground in article 557.1.7 LEC is reserved for non judicial instruments and is of no use here. That asymmetry is precisely why the twenty days are defended the way a case is defended.

How we run the case, step by step

1. 1

   We fix the exact date of service and count the deadline

   The first thing is the date stamp on the notification, not the content of the claim. We count the twenty working days leaving out Saturdays, Sundays, public holidays and the month of August, and that gives the real deadline. Everything else is organised backwards from that date.

2. 2

   We obtain the court file and see what has actually been filed

   We go through the initial application and its documents: whether there is a signed contract or only a balance certificate, whether the annual rate and the date of contracting appear, and what chain of assignments carries the credit to the fund now claiming. Ten minutes there show whether the case is won on evidence or on the merits.

3. 3

   We rebuild the history and set drawdowns against payments

   We call for the statements from day one and add up drawdowns, interest, fees and insurance premiums separately. That calculation says whether the debt claimed exists at all, how much is owed to you and what figure goes into the counterclaim.

4. 4

   We compare the annual rate with that year's average

   We locate the average rate the Banco de España published for cards and revolving credit on the date of the contract, never today's, and measure the gap. If it exceeds six points, usury leads the claim; if it falls short, the weight shifts to lack of transparency.

5. 5

   We file the reasoned and substantiated opposition

   The document denies the debt, challenges the creditor's evidence, raises nullity for usury and, in the alternative, for lack of transparency, and disputes the amount. Article 815.1 LEC requires it to be reasoned and substantiated: a blanket denial is the mistake that turns an opposition into a worthless piece of paper.

6. 6

   We run the trial and claim back what was overpaid

   Once the corresponding trial is open, we seek nullity, repayment of the excess charged and removal of any default entry arising from that debt. If the creditor lets the month of article 818.2 LEC pass without suing, the matter is closed with costs against it.

The law that applies

• Art. 812 LEC. Allows recourse to the order for payment with documents signed by the debtor or with invoices, certificates and any other documents which, even though created unilaterally by the creditor, are of the kind that usually record debts in relationships of that class. BOE-A-2000-323
• Art. 815.1 LEC. The court registrar requires the debtor within twenty days either to pay or to appear and set out, in a reasoned and substantiated written opposition, why in the debtor's view the sum claimed is not owed. BOE-A-2000-323
• Art. 815.3 LEC. Where the debt arises from a contract between a trader and a consumer, a judge who considers a term might be unfair may by order put forward a proposed demand for the sum left once the amount produced by that term is excluded. It is a power, not a duty. BOE-A-2000-323
• Art. 816 LEC. If the debtor neither pays nor appears, the order for payment is closed and the creditor's bare application suffices for enforcement; the debtor may not afterwards seek in ordinary proceedings the return of what the enforcement yields. BOE-A-2000-323
• Art. 818 LEC. An opposition filed in time takes the matter to the trial that corresponds, with a judgment having the force of res judicata; if the amount exceeds the oral trial ceiling and the applicant does not sue within one month, the proceedings are stayed with costs against the creditor. BOE-A-2000-323
• Art. 556 LEC. Against enforcement of court decisions the debtor may only oppose within ten days alleging payment or performance proved by documents, lapse of the right to enforce, or agreements in a public deed, and that opposition does not suspend the enforcement. BOE-A-2000-323
• Art. 557.1.7 LEC. Reserves to enforcement based on non judicial and non arbitral instruments the ground of opposition that the instrument contains unfair terms, so it is not available against enforcement arising from an unopposed order for payment. BOE-A-2000-323
• Art. 217 LEC. It is for the claimant to prove the facts from which the legal effect sought ordinarily follows, and where relevant facts remain doubtful the court dismisses the claims of whoever bore that burden. BOE-A-2000-323
• Art. 394 LEC. Costs at first instance fall on the party whose claims are all dismissed, unless the court finds and explains that the case raised serious doubts of fact or law, for which the case law in similar matters is taken into account. BOE-A-2000-323
• Art. 1 de la Ley de Represión de la Usura. Declares void any loan contract stipulating interest notably higher than the normal price of money and manifestly disproportionate to the circumstances of the case, or on such terms as to be leonine. BOE-A-1908-5579
• Art. 3 de la Ley de Represión de la Usura. Once nullity is declared, the borrower is bound to hand over only the sum received, and if part of it and the accrued interest have been paid, the lender must return whatever, counting everything received, exceeds the capital lent. BOE-A-1908-5579
• Art. 82 TRLGDCU. Defines as unfair those terms not individually negotiated which, contrary to the requirements of good faith, cause a significant imbalance to the consumer's detriment, and places the burden of proof on the trader who claims a term was individually negotiated. BOE-A-2007-20555
• Art. 83 TRLGDCU. Unfair terms are void of full right and treated as not written, the contract surviving if it can stand without them, and the second paragraph declares void of full right any terms incorporated in a non transparent way to the detriment of consumers. BOE-A-2007-20555
• Art. 6.1 de la Directiva 93/13/CEE. Unfair terms are not binding on the consumer under the conditions laid down by national law, and the contract continues to bind the parties on the same terms if it can survive without them. 31993L0013
• Art. 7.1 de la Directiva 93/13/CEE. Requires Member States to ensure that adequate and effective means exist to bring an end to the use of unfair terms in contracts concluded between traders and consumers. 31993L0013
• Art. 1964.2 CC. Personal actions with no special period prescribe after five years from the moment performance can be demanded, and that is the period governing recovery of what was overpaid. BOE-A-1889-4763
• Art. 1973 CC. Prescription is interrupted by bringing the action before the courts, by an out of court claim from the creditor and by any act of the debtor acknowledging the debt. BOE-A-1889-4763
• Art. 1208 CC. A novation is void where the original obligation was also void, unless the ground of nullity may be raised only by the debtor or ratification validates acts void from the outset. BOE-A-1889-4763

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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