Creditor chasing a debt already discharged in Spain by the court

The case, in five lines

What is brought

Opposition to the payment order or to the enforcement, relying on art. 490 TRLC and a certified copy (testimonio) of the discharge order; an application asking for the enforcement to be closed and the attachments lifted; a formal demand to the creditor, the fund and the credit files to stop claiming and to remove the debt; and, if the creditor seeks revocation, a defence before the insolvency judge.

Before which court

The payment order goes to the Sección Civil del Tribunal de Instancia (civil section of the court of first instance) of your home address; the enforcement, to the court that issued it; the certified copy of the order and any revocation, to the insolvency judge (Sección de lo Mercantil del Tribunal de Instancia, the commercial section of the court of first instance); the credit files, to the Agencia Española de Protección de Datos (Spanish Data Protection Agency) if they do not correct the entry. The judgment in the trial that follows the opposition is, as a rule, appealed to the Audiencia Provincial (provincial court of appeal).

Deadline

Twenty working days from the demand to oppose the payment order (art. 815.1 LEC); ten days from notification of the order issuing enforcement (art. 556.1 LEC). One month for the credit file to answer your request (art. 12.3 GDPR). The creditor may only seek revocation under art. 493 within three years of the discharge following liquidation or of the provisional discharge under a payment plan (art. 493.2 TRLC).

Who can bring it

You, as the discharged debtor, with a lawyer and a procurador (court representative), compulsory in a payment order above 2,000 euros, both of whom we provide. On the other side, whoever holds the debt today: the original bank, the fund that bought it or the debt collection company. Your guarantors, sureties and co-debtors cannot rely on your discharge.

Financial risk

If you do not oppose the payment order in time, enforcement is issued and you can no longer claim back in ordinary proceedings what is collected from you (art. 816.2 LEC). If the debt was not in your list of creditors or in the order, the discharge does not cover it. If the debt is one of the non-dischargeable kinds, the creditor keeps its rights of action. We do not promise the outcome of an opposition to enforcement: the grounds the law allows are limited.

The order protects you against the debts it lists, not against all of them

Art. 490 of the texto refundido de la Ley Concursal (TRLC, the consolidated Insolvency Act) is clear-cut: creditors whose claims are extinguished by the discharge cannot bring any kind of action against you to collect them, except to apply for revocation. No payment order, no enforcement, no attachment; and a letter demanding that you pay what was discharged has no right behind it. The same article preserves the position of creditors with non-dischargeable claims, who keep their rights of action and may enforce.

That is why the first step is to know which side the claimed debt falls on. The following, among others, are not discharged: maintenance debts, civil liability arising from a crime or for death or personal injury, criminal fines and very serious administrative penalties, debt secured by a charge within the limit of the special privilege and, above certain caps, public-law debt (art. 489.1). Exceptionally, the judge may have declared another debt non-dischargeable to avoid the creditor's insolvency (art. 489.2), and that will appear in your order. A card, a personal loan or a bank overdraft are, in principle, dischargeable.

What nobody tells you is that the discharge does not wipe out everything you owed. The Tribunal Supremo (Supreme Court), in its judgments 254/2026 and 260/2026 of 18 February, has held that it only reaches the claims the debtor listed, ordinarily in the list of creditors filed with the application and, where applicable, in the final list of creditors, and that the order must identify them: it is not a blank cheque. A debt that is not listed falls outside it, and its creditor may claim it. That is why, before opposing anything, we check that the debt is in your insolvency file.

A fund now holding the debt does not change what was extinguished

Banks sell portfolios of unpaid debts to funds and debt collection companies, and the name now claiming from you often bears no resemblance to the one you put in your list of creditors. Art. 490 does not protect you against a named creditor but against the collection of an extinguished claim. Whoever buys a discharged claim acquires no more than the seller had: a claim that can no longer be collected from you.

The battle is over identification. What the fund claims (original lender, contract or card number, amount, date of default) is cross-checked against your list of creditors and the order. If it matches, the claim has no basis. If the fund bought the debt before the insolvency case and you listed it under the bank's name, it is still the same claim. And your discharge is sent to the Registro público concursal, the public insolvency register (fourth transitional provision of Law 16/2022 and art. 500.3 TRLC): a professional debt collector can hardly argue that it could not have known.

What nobody tells you is that, since Organic Law 1/2025, a creditor must attempt negotiation before suing, and some of the fund's letters are exactly that. Answer in writing, enclosing the order: if the party invited to negotiate refuses to take part, the party that issued the invitation is exempt from paying costs even if it loses, unless the court finds an abuse of the public justice service (art. 394.4 of the Ley de Enjuiciamiento Civil, LEC, the Civil Procedure Act). And a warning: the fund may still pursue anyone who guaranteed the debt or signed with you as co-debtor, because the discharge does not reach them (art. 492.1), and your spouse for marital community debts until they obtain their own discharge (art. 491). Whatever they pay, they cannot recover from you (art. 492.2).

A payment order must be answered within twenty days, even if the debt was discharged

The payment order is the route banks and funds use most: with a contract or a statement, the letrado de la Administración de Justicia (court registrar) requires you to pay within twenty days or to oppose in writing, explaining why you do not owe the sum (art. 815.1 LEC). They are working days and run from the day you receive the demand. The case is heard by the Sección Civil del Tribunal de Instancia (civil section of the court of first instance) of your home address, which has no reason to know about your discharge unless you raise it.

If you do not answer, the registrar closes the payment order and the creditor simply applies for enforcement (art. 816.1). And this is the serious part: neither you nor the creditor may afterwards claim in ordinary proceedings the amount demanded or the return of what is obtained through enforcement (art. 816.2). By not answering in time, a discharged debt becomes a debt that is collected from you. The opposition must be signed by a lawyer and a procurador when the amount requires it, which is above 2,000 euros (art. 818.1); we provide both.

Once you oppose, the matter is decided in the appropriate trial and the judgment has res judicata effect (art. 818.1). If the amount does not exceed the ceiling for the juicio verbal (oral proceedings), it continues that way and the creditor may challenge the opposition within ten days; if it does exceed it, the creditor has one month to file a claim and, if it does not, the case is dismissed with costs against it (art. 818.2). At trial, costs are awarded against the party whose claims are rejected in full, unless there were serious doubts of fact or law (art. 394.1): with the order and the list of creditors on the table, that doubt is hard to sustain.

If your wages or account are already attached: opposition and release

The attachment may come from three places: a payment order that went unanswered, an earlier enforcement that the insolvency case put on hold and the creditor revives, or a new enforcement based on a loan policy or a notarial deed. The deadline to oppose is ten days from notification of the order issuing enforcement (art. 556.1 LEC), and in an enforcement that predates the insolvency case that deadline has usually already passed; the weapons, moreover, differ. Against a court decision, opposition only allows documented payment or performance, lapse of the right to enforce and agreements recorded in a public document, and it does not suspend the enforcement (art. 556.2). Against a loan policy or a deed, the grounds in art. 557.1 are closed and opposition does suspend it (art. 557.2).

None of those lists mentions the discharge, which is why we do not promise you an outcome. What we do is act on every front at once: an application to the same court, with the certified copy of the order, asking for the enforcement to be closed and the attachments lifted because art. 490 TRLC bars the creditor from any collection action; opposition within the deadline on whatever grounds fit; and an analysis of when the enforceable title arose. If it predates the discharge, the claim was extinguished afterwards and the order says so; if it is a payment order you left unanswered after being discharged, art. 816.2 LEC works against you. The sooner it is requested, the fewer pay packets are withheld.

What nobody tells you: including a claim in the final list of creditors is equivalent to a final judgment for enforcing it, but that is designed for an insolvency case that ends without a discharge (art. 484 TRLC). The same article says the debtor remains liable for what is unpaid ‘unless he obtains the benefit of the discharge’. And if the claimed debt is non-dischargeable, the creditor is within its rights (art. 490, second paragraph): then the defence is different, the amount, the public-debt cap or the part covered by the security, and we tell you so plainly.

Provisional discharge, final discharge or discharge under the previous law

With a payment plan, the order does not discharge you in one go: it grants a provisional discharge, and the final one comes when the plan period ends without revocation (art. 500.1), by an order that is published in the Registro público concursal and against which no appeal lies (art. 500.3). What is discharged is the part of the dischargeable debt that, under the plan, remains unpaid (art. 499.1). Meanwhile, the affected creditor collects what the plan allocates to it and, if it believes you are in breach, the law gives it a route: asking the insolvency judge for revocation (art. 499 ter).

During the plan, moreover, declaratory and enforcement actions for non-dischargeable debt or for new obligations you take on are brought before the insolvency judge, through the incidente concursal, the ancillary insolvency proceedings (art. 499.2), not in the court of your home address. If a payment order reaches a different court, it is answered there and in time, relying on the order and on this rule of jurisdiction: what cannot be done is to leave it unanswered. And revocation for concealment, for an inheritance or a prize, or for a final conviction may only be sought within the three years set by art. 493.2.

If your discharge was applied for before 26 September 2022, it is governed by the previous law: the first transitional provision of Law 16/2022 applies the new law only to discharge applications filed afterwards, even if the insolvency case was opened earlier. That regime had different rules; for example, the former art. 178 bis of the 2003 Insolvency Act, in the payment plan route, extended the discharge to outstanding ordinary and subordinated claims even if they had not been lodged. That is why we read your order under the law it was issued under, not today's.

Defaulters' registers and CIRBE: erasing the trace of the debt

The discharge order following liquidation of the estate, or the final discharge order under a payment plan, contains an instruction to the affected creditors to notify the discharge to the credit information systems they had previously informed of the default (art. 492 ter.1). The rule sets no deadline, and many lenders do not comply. With a provisional discharge there is no instruction: we do not promise removal before the final discharge.

You may obtain a certified copy of the order and require those systems directly to update their records (art. 492 ter.2). The basis is twofold: processing default data is only presumed lawful if the debt is certain, due and payable, and the data may only be kept while the default persists (art. 20.1, letters b and d, of the Ley Orgánica de Protección de Datos, LOPDGDD, the Spanish Data Protection Act); and the General Data Protection Regulation gives the right to rectify inaccurate data and to erase what should no longer be processed (arts. 16 and 17). The controller has one month to answer (art. 12.3) and, if it does not, or answers badly, a complaint may be lodged with the Agencia Española de Protección de Datos (art. 77). The Court of Justice of the European Union (Cases C-26/22 and C-64/22, SCHUFA, 7 December 2023) adds that a private agency may not keep data on a discharge for longer than the public register does.

What nobody tells you: the demand must go to the file and also to the creditor that registered you, because both are joint controllers and it is the creditor that answers for the debt existing and being accurate (art. 20.2 LOPDGDD). If you write only to the file, it may reply that removal has to be requested by whoever made the entry. In the Central de Información de Riesgos del Banco de España (CIRBE, the Bank of Spain's central credit register), the discharged debt must disappear: you request the report yourself, free of charge and without a digital certificate, in person by appointment or by post with form FDU-031 signed by hand and a copy of your DNI or NIE, and rectification is requested from the reporting lender or through the Bank of Spain itself.

How we run the case, step by step

1. 1

   Pin down the deadline that is running

   With the payment order demand or the notice of enforcement, we count the twenty or ten days. Send it to us the day you receive it: the deadline does not wait for the paperwork to be gathered.

2. 2

   Check that the debt is in the order

   We cross-check what is claimed (original lender, contract, amount) against the list of creditors, the final list and the order. If a fund bought the debt, we require it to prove the assignment and which claim it concerns.

3. 3

   Obtain the certified copy and grant the power of attorney

   Our procurador requests a certified copy of the order in the insolvency proceedings. You grant the power of attorney free of charge by appearing before the court registrar of any court office, without a digital certificate or Cl@ve.

4. 4

   Oppose and ask for closure and release

   We file the opposition to the payment order or the enforcement relying on art. 490 TRLC and the certified copy, and in the enforcement we also ask for closure and for the attachments on wages or accounts to be lifted.

5. 5

   Send formal demands to the creditor, the fund and the files

   With your authorisation, we send the order to the creditor and the fund, answer their invitation to negotiate in writing, and demand removal from the file and from whoever registered you, who have one month to reply.

6. 6

   Costs, Data Protection and revocation

   We seek costs against the creditor that loses; if the file does not correct the entry, we complain to the Agencia Española de Protección de Datos; and if the creditor applies to the insolvency judge for revocation, we defend you there.

The law that applies

• Arts. 489 y 490 TRLC. The discharge extends to all unpaid debts except those listed in art. 489.1 (maintenance, civil liability for crime or personal injury, criminal fines and very serious penalties, secured debt within the special privilege and public-law debt beyond its caps, among others). Creditors whose claims are extinguished may bring no collection action except to seek revocation; holders of non-dischargeable claims keep their rights of action. BOE-A-2020-4859
• Arts. 491, 492 y 492 ter TRLC. The discharge does not extend to the spouse for marital community debts until they obtain their own, nor does it affect the creditor's rights against joint and several co-debtors, sureties, guarantors, insurers or a third-party mortgagor; their recourse claims against the discharged debtor are affected like the main claim. The order instructs creditors to notify the discharge to credit information systems, and the debtor may require them to do so with a certified copy. BOE-A-2020-4859
• Arts. 493, 493 bis, 493 ter, 499, 499 ter y 500 TRLC. Any affected creditor may seek revocation for concealment, substantial improvement through inheritance, legacy, gift or gambling, or a supervening final conviction or penalty, within three years, following the oral proceedings procedure; with a payment plan, also for breach of the plan. During the plan, actions for non-dischargeable or new debt go to the insolvency judge as ancillary insolvency proceedings. The final discharge order is published in the public insolvency register and is not open to appeal. BOE-A-2020-4859
• Arts. 815, 816 y 818 LEC. In the payment order procedure the debtor is required to pay within twenty days or set out reasons in writing. If the debtor does not appear, enforcement is issued and neither party may later claim the amount or its return in ordinary proceedings. With an opposition, the matter is decided in the appropriate trial with res judicata effect; above the oral proceedings ceiling, the creditor must sue within one month or the case is dismissed with costs against it. BOE-A-2000-323
• Arts. 394, 556 y 557 LEC. Against enforcement of court decisions, documented payment or performance, lapse and agreements in a public document may be raised within ten days, without suspending enforcement; against non-judicial titles, only the closed grounds in art. 557.1, with suspension. In declaratory proceedings, costs are awarded against the party whose claims are rejected in full, and a party that invited the other to negotiate is exempt from them if the other refused to take part, unless there is an abuse of the public justice service. BOE-A-2000-323
• Art. 20 LOPDGDD. Processing default data in shared credit information systems is only presumed lawful if the debt is certain, due and payable and the data are kept only while the default persists, for five years at most. The system and the creditor are joint controllers, and the creditor answers for the debt existing and being accurate. BOE-A-2018-16673
• Arts. 12, 16, 17 y 77 RGPD. The data subject may obtain rectification of inaccurate data and erasure of data no longer necessary or unlawfully processed; the controller must answer within one month, extendable by two more with notice, and if the request is not dealt with a complaint may be lodged with the supervisory authority. 32016R0679
• Disposiciones transitorias primera y cuarta de la Ley 16/2022. The reform applies to discharge applications filed from its entry into force, even if the insolvency case was opened earlier; earlier ones follow the previous legislation. Until the insolvency statistics regulation is approved, the court registrar sends to the public insolvency register the decisions granting provisional discharge under a payment plan and discharge after liquidation. BOE-A-2022-14580

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

Frequently asked questions