The recovery of a debt does not always involve a common law process, but the mere notification does not guarantee payment and, as a rule, is not an enforceable title. The strategy depends on the documents proving the debt, the deadline, the debtor’s defenses, and the statute of limitations.
It starts with verifying the claim
Gather the contract and its annexes, orders, invoices, proof of delivery or performance, account statements and communications regarding the recognition or challenge of the debt. Check who is the creditor and the debtor, the exact amount, the maturity, the interest or penalties and any partial payments. A unilaterally issued invoice does not always prove on its own the existence and extent of the obligation; what matters is the contractual relationship and the entire evidence.
When a payment order may be appropriate
The special procedure applies, in principle, to certain, liquid and enforceable claims that consist of the payment of a sum of money and result from a contract proven by a written document or another document admitted by law. The creditor must follow the preliminary summons provided for by the Code of Civil Procedure, with the legal deadline of 15 days, and keep the proof of the communication. Claims entered in the insolvency proceedings are excluded from this procedure.
The order for payment can be simpler than a common law action, but it does not guarantee the admission of the claim. If the debt is seriously contested or the resolution requires the submission of complex evidence, the court may reject the special request, and the creditor may file a common law action. The court hears the debtor’s defenses and examines the documents.
When you can proceed to enforcement proceedings
The notification or invoice does not, by itself, authorize the seizure or pursuit of the goods. For enforcement, an enforceable title is required, such as an enforceable judgment, an enforceable payment order, or a document that the law recognizes as such. Enforcement is sought through a judicial executor, in compliance with the procedure and deadlines.
Do not delay checking the prescription
The general statute of limitations is 3 years unless the law establishes a different term. The starting point and any causes of suspension or interruption depend on the nature of the claim and its history. A delay can only interrupt the statute of limitations if it is followed by a lawsuit within 6 months. The statute of limitations does not apply automatically by court order; the debtor must invoke it under the law.
Practical steps
- Check the documents, the due date, the partial payments and any objections;
- send a legal notice and keep the proof of the communication;
- choose between the payment order and the common law action depending on evidence and defenses;
- after obtaining an enforceable title, it analyzes the execution through a judicial executor.
Before sending the summons, check the total amount, interest rates, and deadlines, especially if the debt is old or the debtor is in insolvency. For assistance in collecting receivables, see page of services for commercial disputes.
Official texts: Code of Civil Procedure, Art. 1014 and following and Civil Code, provisions regarding prescription.
General information, not legal advice for an individual claim. Conditions and deadlines depend on the documents and the history of the claim.
