Law firm guidesInsolvency and debt relief

A creditor files for your compulsory insolvency: five days left

Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826

The short answer

You have five days from the summons to appear and oppose, and article 20 TRLC admits only three grounds: the applicant's lack of standing, the non existence of the external fact relied on, or that despite that fact you were not, or are no longer, insolvent. Failing to oppose in time has the same effect as admitting the claim.

A supplier you owe 38,000 euros has petitioned for the compulsory insolvency of your company. The business invoices, pays wages and is up to date with social security, but it carries an attachment levied last year in an enforcement action that turned up insufficient assets. You receive the summons on a Friday afternoon and are given five days to appear. The petition also asks for interim measures over the company's bank accounts. Losing this is not losing a lawsuit: it is losing control of your company.

The case, in five lines

What is brought: Appearance and opposition to a creditor's petition for a declaration of compulsory insolvency, offering the evidence to be relied upon.
Before which court: The sección de lo Mercantil of the Tribunal de Instancia (the commercial division of the first instance court) competent to declare insolvency, which examines the petition and rules on the opposition.
Deadline: Five days from the summons ordered in the decision admitting the petition, during which the file is made available and opposition may be filed with an offer of evidence. The period is not extended.
Who can bring it: The summoned debtor is the party who opposes. On the other side, the debtor itself and any of its creditors have standing to petition, as do partners personally liable for the company's debts.
Financial risk: If the opposition fails, insolvency is declared with all its effects. Even before that, the judge may order interim measures over the company's assets, though the applicant may be required to post security to answer for damage if the petition is ultimately dismissed.

Five days, and silence produces the same effect as surrender

Article 14.2.2 TRLC requires that, where the creditor's petition rests on certain external facts, the judge admit it on the next working day, ordering the debtor to be summoned and served with the petition so as to appear within five days, during which the file is made available and opposition may be filed with an offer of the evidence to be relied upon.

That period contains two things at once: appearing and opposing with evidence. Merely entering an appearance and asking for more time is not enough. And article 19.2 shuts the door with a rule that surprises many companies: it has the same effect as an admission of the claim where the debtor, once summoned, has failed to oppose within the period.

Put another way, letting five days run is equivalent to accepting that your company be declared insolvent, with every consequence that follows. The same article treats as an admission the case where the debtor, before being summoned, has filed for its own insolvency. The response to a compulsory insolvency petition is therefore decided in hours, not in weeks, and usually over a weekend.

Depending on which fact the petition relies on, you may not even be summoned

Article 2.4 TRLC lists the six external facts revealing insolvency on which a creditor may found its petition: a prior final judicial or administrative declaration of insolvency; an enforcement title under which execution issued without the attachment producing sufficient known free assets; attachments from pending enforcement actions generally affecting the estate; general cessation of current payments; cessation of payment of tax debts, social security contributions or wages; and absconding with assets or their hurried or ruinous liquidation.

Article 14.2 treats them very unequally. If the petition rests on the first three, the judge declares the insolvency on the next working day. Only where it rests on any of the remaining ones, or where it comes from another entitled applicant, is an order of admission issued summoning the debtor for five days so that it may oppose.

That is why the first thing read in the petition is not the amount claimed but which paragraph of article 2.4 it relies on. An old attachment that did find sufficient assets does not fit the second paragraph, and an isolated enforcement action does not generally affect the estate. Misclassifying the external fact is the most expensive mistake the creditor makes.

There are only three grounds of opposition and the third puts the burden on you

Article 20.1 TRLC lists them exhaustively: the debtor may base its opposition on the applicant's lack of standing; on the non existence of the external fact revealing insolvency on which the petition is founded; or on the fact that, although that event occurred, it was not in a state of insolvency or is no longer in that state.

Paragraph 2 adds the rule that decides most cases: if the debtor claims not to be in a state of insolvency, the burden of proving solvency falls on it. Claiming solvency is not an excuse, it is an evidential burden, and anyone who takes it on without up to date accounts, bank certificates and proof of available credit lines will lose it.

It is also worth reading article 2.3 before choosing the ground. A debtor is in current insolvency where it cannot regularly meet its due obligations, and in imminent insolvency where it foresees that within the next three months it will not be able to meet them regularly and punctually. The word regularly is the key: the argument is not whether you owe, but whether you can pay in an orderly way.

A creditor who bought your matured debt four months ago cannot petition

Article 3.1 TRLC opens standing wide: the debtor and any of its creditors may petition for a declaration of insolvency, and where the debtor is a legal person it is for the management or liquidation body to decide on filing its own petition. Paragraph 3 adds partners who are personally liable for the company's debts.

But paragraph 2 introduces an exception almost always overlooked: a creditor who, within the six months before the petition was filed, acquired the claim by inter vivos acts and on a singular basis after it had fallen due has no standing. In other words, whoever buys already matured debt in order to use it as leverage.

Checking this is pure documentary work: who holds the claim today, when it fell due, when it was assigned and on what basis. If the assignment fits the exception, the ground of opposition based on the applicant's lack of standing under article 20.1 is raised first, because it decides the case without even reaching your financial position.

Interim measures can arrive before any declaration of insolvency

Article 18.1 TRLC allows the judge, at the request of the party entitled to seek compulsory insolvency and upon admitting the petition, to adopt under the Civil Procedure Act whatever interim measures are considered necessary to preserve the integrity of the debtor's assets. There is no need to wait for a declaration: they can be ordered at the same time as the summons you have just received.

The defence has a concrete tool here in paragraph 2: the judge may require the applicant to post security to answer for any damage the interim measures might cause the debtor if the insolvency petition is ultimately dismissed. Requesting that security, and requesting it quantified, makes the creditor's manoeuvre expensive.

Paragraph 3 also requires the judge to rule on any interim measures granted in the very decision that either declares insolvency or dismisses the petition. In other words, the measures do not float indefinitely over the company: they have a natural expiry date, and that ruling is expressly requested in the opposition rather than waited for.

Notifying negotiations is only possible before the petition is admitted

Article 585.1 TRLC allows a debtor, whether an individual or a legal person, facing a likelihood of insolvency or imminent insolvency, to notify the body competent to declare insolvency of the existence of negotiations with its creditors, or of the intention to start them immediately, in order to reach a restructuring plan that overcomes the situation it is in.

Paragraph 2 marks the exact time limit: a debtor in a state of current insolvency may make that notification so long as no petition for compulsory insolvency has been admitted. Once the creditor's petition is admitted, that door closes, and article 588.4 confirms that a notification filed afterwards produces no effect until the petition is resolved.

That is why sequence matters so much. A company that sees the petition coming and still has room chooses between two different routes, and only one of them remains open after the order of admission. That decision is taken with the procedural calendar in front of you, not once the summons has already arrived.

How we run the case, step by step

1
Identifying the external fact relied on and whether it fits
We identify which paragraph of article 2.4 TRLC the petition relies on, because that determines whether there is a summons and an opposition at all or whether insolvency is declared outright. An attachment that did produce sufficient assets, or an isolated enforcement action, do not fit where the creditor claims.
2
Verifying the applicant's standing and the history of its claim
We check who holds the claim, when it fell due, and whether it was acquired by inter vivos acts on a singular basis after maturity within the six months preceding the petition, in which case the creditor has no standing.
3
Appearing and opposing within the five days
We appear and file the opposition within that same period, articulating whichever grounds under article 20 apply and offering the evidence there and then. We also ask for the applicant's security to be quantified where interim measures are in play.
4
Building the evidence of solvency
If you argue there is no insolvency, the burden of proof is yours. We produce an updated balance sheet and profit and loss account, bank balance certificates, available credit facilities and proof of current payment of wages, contributions and tax obligations.
5
Decision on the opposition and on the interim measures
The judge either declares insolvency or dismisses the petition, and in that same decision must rule on any interim measures previously granted. If the petition is dismissed, the security posted answers for the damage caused to the company.

The evidence that decides the case

The enforcement order and the record of attachment relied on, to show whether the attachment did or did not produce sufficient known free assets for payment.
The applicant's title to the claim with its maturity date and, if it was assigned, the deed or assignment agreement with its date.
Certificates of being up to date with the Spanish tax agency and with the social security treasury.
Proof of payment of the last three months of wages and of the other remuneration arising from the employment relationships.
An updated balance sheet and profit and loss account, bank balance certificates and credit facilities with available headroom, which form the core of the solvency evidence.
A schedule of pending enforcement actions with their subject matter and scope, to show that they do not generally affect the company's estate.

What closes the door

Letting the five days run, or merely appearing without opposing. Failing to file an opposition within the period has the same effect as admitting the claim and insolvency is declared.
Claiming the company is solvent without producing evidence. If the debtor claims not to be insolvent, the burden of proving solvency is on it, and an assertion is not evidence.
Hurriedly paying only the petitioning creditor in the belief that the matter dies. Later petitions are joined to the first and the new applicants are treated as parties without the proceedings going back.
Notifying the opening of negotiations once the creditor's petition has already been admitted. That notification produces no effect until the compulsory insolvency petition is resolved.
Ignoring the request for interim measures accompanying the petition, instead of asking that the applicant be required to post security to answer for damage if the petition is dismissed.

The law that applies

Art. 20 TRLC. Limits the debtor's opposition to three grounds: the applicant's lack of standing, the non existence of the external fact revealing insolvency on which the petition rests, or that despite that fact the debtor was not or is no longer in a state of insolvency. It places on the debtor the burden of proving solvency whenever solvency is claimed. BOE-A-2020-4859
Art. 2 TRLC. Defines current insolvency as the inability to meet due obligations regularly and imminent insolvency as the forecast of being unable to meet them regularly and punctually within the next three months, and lists the six external facts on which a creditor may found its petition. BOE-A-2020-4859
Art. 14 TRLC. Requires the judge to examine the creditor's petition immediately and draws two paths: where it rests on the first three external facts, insolvency is declared on the next working day; where it rests on any other, or comes from another entitled applicant, an admission order issues summoning the debtor for five days to appear and oppose with an offer of evidence. BOE-A-2020-4859
Art. 3 TRLC. Gives standing to the debtor and to any of its creditors, and also to partners personally liable for the company's debts, but excludes a creditor who within the six months before the petition acquired the claim by inter vivos acts on a singular basis after it had fallen due. BOE-A-2020-4859
Art. 19 TRLC. Requires insolvency to be declared where the summoned debtor admits the claim, and treats as an admission both the debtor's own insolvency filing before being summoned and its failure, once summoned, to oppose within the period. BOE-A-2020-4859
Art. 18 TRLC. Allows interim measures to be adopted on admitting the petition in order to preserve the integrity of the debtor's assets, empowers the judge to require the applicant to post security answering for damage if the petition is dismissed, and requires a ruling on those measures in the very decision declaring insolvency or dismissing the petition. BOE-A-2020-4859

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

Frequently asked questions

Can I ask for more time to answer the petition

Article 14.2.2 TRLC sets five days to appear, and within that same period the file is made available and opposition may be filed with an offer of evidence. Article 19.2 adds that failing to oppose within the period has the same effect as admitting the claim. Appearing to ask for time, without opposing, leaves the matter exactly where doing nothing would.

My company invoices and pays wages, does that prove there is no insolvency

It helps, but it has to be proved. Article 2.3 TRLC defines current insolvency as being unable to meet due obligations regularly, so the argument is about the regularity of payment and not about turnover. And article 20.2 places on a debtor claiming solvency the burden of proving it, with accounts, bank certificates and proof of current payment.

The petitioner bought my debt from another supplier, does that matter

It can decide the case. Article 3.2 TRLC denies standing to a creditor who, within the six months before the petition was filed, acquired the claim by inter vivos acts on a singular basis after it had fallen due. If the assignment fits, the opposition is put on the applicant's lack of standing and your financial position is never reached.

Can my accounts be frozen before insolvency is declared

Article 18.1 TRLC allows the judge, on admitting the petition, to adopt whatever interim measures are considered necessary to preserve the integrity of the debtor's assets. Against that, paragraph 2 empowers the judge to require the applicant to post security answering for damage if the petition is ultimately dismissed, and paragraph 3 requires a ruling on those measures when deciding.

Can I notify that I am negotiating with my creditors to buy time

Only if you get there first. Article 585.2 TRLC allows a debtor in current insolvency to notify the opening of negotiations so long as no compulsory insolvency petition has been admitted. And article 588.4 states that if such a petition had already been admitted by the date of the notification, the notification produces no effect until it is resolved.

This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.