Among the different competences, that the Law of Voluntary Jurisdiction, has attributed to Notaries, is the procedure for claiming non-disputed monetary debts, whose regulation is contained in articles 70 and 71 of the Law of Notaries, colloquially the notarial payment procedure.
Through this procedure, a person (although we already anticipate that not all) to whom an amount of money is owed can obtain a voluntary payment letter or alternatively a title of execution without the need to go to court and with full guarantee for the debtor's rights.
From the formal point of view, it is articulated through an act of notification and request, which, once a series of requirements have been met, has a privileged effect, consisting in that it becomes an executive title, which allows us to file an executive demand and directly request the seizure of the debtor's assets.
That is to say, it is not a process, since there is no claim before a Notary, nor does he issue any resolution on the existence and validity of the debt; For the same reason, the function of the Notary ends when the debtor appears before him and opposes it.
What differences does it have with the judicial order for payment procedure?
The judicial monitoring is a simple procedure (regulated in articles 812 and ss LEC) for the claim of monetary debts, which is articulated as follows:
1.- Petition by the creditor, addressed to the competent court, stating the identity of the debtor, the domicile or domiciles of the creditor and the debtor or the place where they reside or could be found and the origin and amount of the debt, to which does not need a lawyer or attorney.
2.- Examination of the documentation by the Judge.
3.- Requirement to the debtor so that, within a period of twenty days, he pays the petitioner, accrediting him before the court, or appears before it and alleges in a well-founded and reasoned manner, in a written opposition, the reasons why, in his opinion, understand, you should not, in whole or in part, the amount claimed.
4.- If the debtor does not comply with the payment requirement or does not appear, the court clerk will issue a decree terminating the order for payment process and will notify the creditor to request the execution office.
5.- Creditor's request for the dispatch of the execution. From the time the order dispatching execution is issued, the debt will accrue the interest referred to in article 576 LEC.
The notarial order for payment procedure replaces the first four phases of the judicial order for payment procedure, that is, the presentation of the claim, the notifications to the debtor, and in case of non-payment, the transfer to the creditor to request the dispatch of the execution.
It has the advantage that it is a faster system; making comparisons is difficult, since the term depends on each court, but as an example in The annual report of the General Council of the Judiciary for the year 2011 established an average term of 8.6 months in Spanish courts for payment procedures.
The notarial procedure will not take more than a month, although then you would have to go to court, but with the possibility of securing the lawsuit through the embargo.
On the other hand, the notarial procedure will have a cost, not high, while the judicial procedure, if processed personally by the interested party, without a lawyer or solicitor, obviously the cost will be the work it takes to prepare it.
What debts can be claimed by a notary?
While all kinds of monetary debts can be claimed through the judicial procedure, without limit of amount, whatever their origin, in the case of the notarial file, it only serves to claim monetary debts, that is to say, of money, of a civil or commercial nature, also without limit of amount, but with an objective limitation because it does not fit to claim lDebts based on a contract between a businessman or professional and a consumer or user; those based on article 21 of the Horizontal Property Law (this is a claim for community fees and contributions to owners) and those based on article 553-45 of the Civil Code of Catalonia having the same nature; food debts with minors or incapacitated, and those based on unavailable materials or that require judicial authorization; and the debts of the public administrations.
Due to the fact that the concept of consumer is not univocal neither in our laws nor in the interpretation of the same that the courts have made, we are waiting for how the use of the notarial procedure is solved in practice. Of course, we anticipate that a very restrictive interpretation may prevent the claim of debts, in which no particularly protectable type of interest is appreciated a priori, despite the fact that the debtor may be a consumer. I give as an example, why can't the procedure be used by a doctor who has performed dental implants, a cosmetic surgery operation, or the payment of a luxury residence where the prices of the product are clearly and clearly known? anticipated?.
Which Notary should I go to?
There is a criterion of notarial competence, in the sense that the file must be processed before a notary residing at the debtor's domicile, consigned in the document from which the debt results or documented evidence or the place where the debtor can be found. .
What should I bring to the Notary?
The document from which the debt results and which, in the opinion of the Notary Public, is unquestionable. In other words, the only limitation is that this procedure cannot be used to claim a debt whose existence results exclusively from the creditor's statement.
As an example of the documents that prove the existence of the debt, in accordance with article 812 LEC we can cite: documents, whatever their form and class or the physical support in which they are found, that appear signed by the debtor or with his seal, imprint or mark or with any other signal, physical or electronic; through invoices, delivery notes, certifications, telegrams, telefaxes or any other documents that, even unilaterally created by the creditor, are among those that usually document credits and debts in relationships of the kind that appear to exist between creditor and debtor
Is it possible to include in the claim the expenses of the claim file?
Not at the beginning. It is a matter unrelated to the amount of the debt.
Should I file a lawsuit before the Notary?
No, you will only have to present the identity document, and if applicable, the public document (power of attorney or office appointment) from which the representation results, in case of acting on behalf of another.
Once the person has been identified, the proof of the representation and the documentation proving the amount of the debt and the debtor's domicile being sufficient, the Notary drafts a document called a requirement, which is the request and authorization to the Notary, so that can notify the debtor.
What does the Notary do?
He appears at the debtor's home and gives him a certificate (a document that reproduces what was signed) in which the debtor is told that he must pay within twenty business days, warning that if he does not pay or does not oppose to the claim, the Notary will record said circumstance in which case, and the record will be a document that will carry execution for the purposes of number 9 of section 2 of article 517 of the Civil Procedure Law.
Unlike what happens with the general regime of notifications, from the text of the law it seems that only personal notification is possible, not by mail. Which should make us assess, resort to this procedure, when there are probabilities of not finding the debtor.
In any case, it is not necessary for the debtor himself to be notified, since the notification shall be understood to have been delivered by delivery to any employee, family member or person who lives with the debtor, provided they are of legal age, and are in the address of the former, always accredited. If the request is made at the addressee's non-casual workplace, in his absence, it will be made to the person in charge of the unit destined to receive documents or objects.
And in the event that the recipient is a legal person, the Notary will understand the procedure with the person of legal age who is at the address indicated in the previously expressed document and who is part of the administrative body, who proves to be a representative with sufficient powers. or that in the opinion of the Notary publicly acts as the person in charge of the legal person to receive reliable requirements or notifications in their interest.
What happens if the debtor does not want to receive the documentation from the Notary?
The request to the debtor will be considered valid if it is located and effectively requested by the Notary, and he refuses to take charge of the documentation, which will remain at his disposal at the Notary.
What happens if the debtor cannot be located?
If the debtor cannot be located at any of the possible addresses accredited in the minutes or the request cannot be delivered, the Notary will terminate his action, stating such circumstance and the exercise of the creditor's right by means of judicial.
What can the debtor do before the notification?
Pay, oppose or do nothing.
To whom can the debtor pay?
To the Notary or to the creditor himself.
If you choose to pay the Notary himself, he will proceed, without delay, to deliver the amount paid to the creditor in the manner requested by the latter, the file being closed, which will become a letter of payment, and from which the debtor may have a copy.
In the event that the creditor is paid and the latter confirms the payment before a Notary, the latter will close the record, terminating the action. If there is no express confirmation by the creditor, the Notary will also close the record, leaving the judicial process open.
As a guarantee for the debtor, payment before the Notary is preferable, since it will be publicly recorded.
Can you accept a partial payment?
It will depend on what has been requested, but if the payment is requested before a Notary, he cannot accept a partial payment if he has not been authorized to do so. The creditor, of course, could accept a partial payment.
Can a third party pay instead of the debtor?
Indeed. In our right the payment by third party is admitted, with the consequences, foreseen in article 1158 Civil Code.
What means of payment are acceptable?
In principle, any, but it is most advisable that the form of payment be determined in the request itself, through a personal bank check or by designating a current account, better notary.
In accordance with article 1170 CC, the delivery of promissory notes to order, or bills of exchange or other commercial documents, will only produce the effects of payment when they have been made, or when the creditor has harmed them.
In any case, the rules limiting payment in cash between professionals must be respected, which cannot exceed 2,500 euros.
How can the debtor oppose the claim?
The opposition must be motivated, that is, it is not enough to say I do not agree. The reasons for the opposition may refer to the lack of constitutive facts or to the existence of impeding, extinctive or excluding facts concerning the documents presented to prove the debt and the obligation itself. They can also refer to defects in the processing of the file.
It is carried out by means of an appearance of the debtor before the Notary Public, in which the reasons on which it is based will be collected in writing, stating it by diligence. Once such circumstance is communicated to the creditor, the notarial action will end, leaving the rights of the creditor to claim the debt in court.
What is the term to pay or oppose?
The debtor's term to pay or oppose is twenty business days, from the notification. If the last day is a non-business day, the term will expire on the next business day.
Sundays and holidays are excluded, but the procedural rule that the month of August is a non-business month does not apply.
The hours of payment will be those of the notarial office, and it is convenient that it be stated in the request.
Once the term has expired, it cannot be paid, unless there is the agreement of the creditor.
What happens if the debtor does nothing?
The essence of the procedure is that if the debtor does not allege reasons to oppose, the Law, interpreting the debtor's silence as full proof of the existence of the debt, confers on the notarial deed the character of execution title, and would allow the seizure of the debtor's assets.
Is it possible to formulate the requirement or make the answer through a general power of attorney for lawsuits?
Normally these powers have powers to appear before a notary for the purpose of requiring the practice of acts of presence, notification and/or requirement, as well as making responses to the latter two.
In any case, it will be necessary to value the power.
