Your debtor opposes the monitorio: what to do in one month

The case, in five lines

What is brought

Continuation of the money claim under the verbal procedure rules, or an ordinary claim, depending on the amount, once the debtor's objection brings the monitorio to an end.

Before which court

The Civil section of the Tribunal de Instancia (the first-instance court) where the initial monitorio petition was filed, which then hears the subsequent case.

Deadline

The debtor has twenty days from the payment order to object. If the claim exceeds the ceiling of the verbal procedure, you have one month from service of the objection to file your claim.

Who can bring it

The creditor who filed the monitorio, personally or through whoever proves acquisition of the debt. The debtor's written objection must be signed by a lawyer and a court representative where their involvement is required by reason of the amount.

Financial risk

If you let the month lapse, the dismissal decision orders you to pay costs. If you sue and lose, you bear the costs of a full declaratory case, which is no longer documentary and does allow expert evidence of appreciable cost.

The objection does not decide who is right: it changes the case in which it is decided

When the debtor appears within the twenty days and sets out, with reasons, why he considers he owes nothing, the monitorio ends. Article 818.1 of the Civil Procedure Act is clear: the matter will be finally decided in whichever case corresponds, and the judgment handed down there will have the force of res judicata. You move from a fast documentary claim to full litigation with pleadings and evidence.

That change has a consequence which surprises many creditors. The written objection must be signed by a lawyer and a court representative where their involvement is required by reason of the amount, and from then on the matter is argued with documents, witnesses and, if needed, an expert. Creditors who come late to preparing that second stage usually lose for want of evidence, not for want of a good claim.

Below fifteen thousand euros the case continues by itself; above that, you must sue

Article 250.2 of the Civil Procedure Act sets fifteen thousand euros as the ceiling of the verbal procedure for claims not covered by the subject matters of its paragraph 1. If your claim does not exceed that figure, the court clerk issues a decision terminating the monitorio and orders the case to continue under the verbal procedure, serving the objection on you, and you may challenge it in writing within ten days.

Once that challenge is filed, or the period has run, both parties are given five days to propose the evidence they wish to produce, naming the people who must be summoned to give evidence as a party, as witnesses or as experts. That is the decisive moment of the case: the list of evidence filed in those five days is, in practice, the whole case. Whatever is not proposed there is not produced later.

Nobody reminds you of the one month deadline to file the ordinary claim

Where the amount claimed exceeds the ceiling of the verbal procedure, article 818.2 places a burden on the creditor: if the corresponding claim is not filed within one month from service of the objection, the court clerk issues a decision dismissing the proceedings and ordering the creditor to pay costs. There is no prior warning, no reminder and no second chance inside those proceedings.

If the claim is filed in time, the same decision that ends the monitorio orders it to be served on the defendant under articles 404 and following, unless it should not be admitted. That is why the useful work starts the day the objection arrives, not on day twenty five: an ordinary claim requires facts, documents and legal grounds set out in a detail that cannot be improvised in a week.

If the objection only disputes the amount, the admitted part does not wait for the case

Many objections do not deny the debt: they cut it down. The debtor admits owing eight thousand of the twelve thousand claimed and disputes the rest for discounts, returns or penalties. Article 818.1 provides for that situation: where the objection is based on the claim being excessive, the amount acknowledged as owed is dealt with in accordance with paragraph two of article 21 of the same Act.

Strategically, that kind of objection is good news badly read. It records in writing an acknowledgement of debt by the debtor himself and narrows the case to the disputed band, usually the easiest to prove with delivery notes and emails. The right answer is not to claim the whole sum again as if nothing had happened, but to rely on what has been admitted and concentrate the evidence on the four thousand being denied.

If your debtor is a consumer, the judge reviews the terms before ordering payment

Article 815.3 requires that, where the debt is considered to arise from a contract between a trader or professional and a consumer or user, the court clerk must report to the judge before any payment order is issued. If the judge finds that a term underpinning the petition, or one that has determined the amount demanded, may be unfair, the judge may propose by order a payment demand for the sum resulting from excluding that term.

The same article also provides for a reduction where the documents filed show that the amount claimed is not correct. In both cases the creditor must accept or reject the proposal within ten days, and it is deemed accepted if the period passes without any statement. If the creditor rejects it, he is treated as having withdrawn and may only pursue his claim in whichever declaratory case corresponds.

For urban lease rent, an objection always leads to the verbal procedure

There is one exception that avoids the one month trap. Article 818.3 provides that, in every case, where rent or sums owed by the tenant of an urban property are claimed and the tenant objects, the matter will be finally decided under the verbal procedure rules, whatever the amount. A landlord owed forty thousand euros in rent does not have to file an ordinary claim within the month.

This matches article 250.1.1, which submits to the verbal procedure, whatever the amount, claims for sums owed through non payment of rent and other amounts due. The practical consequence is that the landlord must be ready for service and for the ten day challenge, not for drafting a fresh claim. Confusing one situation with the other costs the entire case.

How we run the case, step by step

1. 1

   Read the objection and set the real amount at stake

   The first task is to establish whether the claim exceeds the ceiling of the verbal procedure, because that decides whether the case continues by itself or a new claim must be filed. What the debtor admits is separated from what he genuinely disputes.

2. 2

   Diarise the month and the ten day period

   The month is counted from service of the objection and, in the verbal procedure, the ten days to challenge it and the five days to propose evidence. These periods are not extended by agreement between the parties or by ongoing negotiations.

3. 3

   Gather evidence of the supply, not just the invoice

   An invoice proves that you issued it, not that the debtor received what was invoiced. We gather orders, signed delivery notes, work sheets, emails accepting the goods, and any earlier part payment, which is the strongest tacit acknowledgement of the debt.

4. 4

   Challenge the objection or file the ordinary claim

   In the verbal procedure the objection is challenged in writing and evidence is proposed. Above the verbal ceiling, the ordinary claim is drafted and filed within the month, with numbered documents and the interest claimed already calculated.

5. 5

   Hearing, judgment and immediate move to enforcement

   Evidence is produced at the hearing and an express order for costs is requested. Once the judgment is final the matter is not over: the enforcement claim is prepared without pause, because a debtor who objected rarely pays voluntarily afterwards.

The law that applies

• Art. 815 LEC. It governs the twenty day payment order requiring the debtor to pay or to appear and set out, with reasons, why nothing is owed. It also provides for reducing the sum where the documents do not support it, and for judicial control of unfair terms if the debtor is a consumer, with ten days to accept or reject the proposal. BOE-A-2000-323
• Art. 818 LEC. A timely objection sends the matter to whichever case corresponds, with the force of res judicata. If the amount does not exceed the verbal ceiling the case continues that way, with ten days to challenge; if it exceeds it, the creditor has one month to sue or the case is dismissed with costs. Urban lease rent always goes to the verbal procedure. BOE-A-2000-323
• Art. 250 LEC. It defines the scope of the verbal procedure. Paragraph 1.1 submits to it, whatever the amount, claims for unpaid rent and sums owed by a tenant, while paragraph 2 sets fifteen thousand euros as the general ceiling for other money claims not covered by the subject matters of article 249.1. BOE-A-2000-323

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

Frequently asked questions