SPAIN Law and Practice Contributed by: Alfonso López-Ibor, Pablo Henríquez de Luna, Virginia Jover and Pedro Echeguren, López-Ibor Abogados
adequate opportunity to present their case (ie, the defendant was given enough time to enable them to defend the enforcement proceedings); • interim judgments or protective and provisional measures are enforceable if no breach of effec - tive judicial protection has been committed when being adopted ex parte – as a general rule, these judgments or measures are adopted after a hear - ing attended by both parties, and ex parte relief is exceptional; and • final judgments for a specific amount of money, etc. 2.2 Enforcement of Domestic Judgments The legal framework for the civil and commercial enforcement of domestic judgments is governed by the Civil Procedural Act (CPA). The specific rules that apply to enforcement proceedings depend on the relief granted in the judgment. Options Available to Enforce Judgments When enforcing domestic judgments or authenticated public documents, general rules are applied; specific rules will only apply depending on the type of relief that is granted (monetary obligations or specific per - formance). Special enforcement rules are only to be used when enforcing the first notarial copy of a mort - gage deed (non-judicial title). The main difference is based on faster mortgage foreclosure proceedings and the action in rem that is exercised in mortgage foreclosure. General proceedings ( procedimiento de ejecución ordinario ) enforce judgments with monetary and non- monetary obligations, such as specific performance, third-party debt order, etc. Therefore, in monetary obligations, all assets of the defendant are suitable to be targeted and are used to pay for the debt being claimed. In money judgments, a court’s enforcement order will include the attachments of all or part of the debtor’s assets identified in the writ of enforcement. Otherwise, further means of investigation should be carried out by the court to trace a debtor’s potential assets to attach. The monetary or non-monetary nature of the obliga - tion to be enforced will determine the way coercive measures will be used by courts.
To enforce judgments ordering payment of monetary obligations when the opposition writ to enforcement is dismissed requires the following court actions: • freezing bank accounts and seizure of assets (mov - able or immovable) or even a defendant’s income, as professional wages with certain limitations (mini - mum wage cannot be seized); and • judicial or extrajudicial auctions of a defendant’s assets (a defendant’s home will be one of the last assets used to pay back the debt) – this debt will include the amount declared in the enforcement writ, plus legal interest and judicial costs. To enforce judgments related to non-monetary obli - gations (ordering the defendant to perform certain actions, to refrain from performing such actions or to undo actions already performed) when the opposition writ to enforcement is dismissed requires the following enforcement actions: • financing a third-party service provided to comply with the enforcement judgment when the defend - ant fails to comply, at the defendant’s expense; and • issuing fines against the defendant when intuitu personae obligations are required and the defend - ant is unwilling to act accordingly – no third party can substitute the defendant’s performance, ser - vice or skills, and fines are the only coercive way to compel the defendant to enforce the judgment. Enforcement Procedure Enforcement proceedings start with an application (ex parte or in audita parte) to enforce the judgment, without hearing the defendant or the debtor object to the enforcement. The application for an enforce - ment order should be filed before the Court of First Instance: • where the judgment has been rendered (Article 545 of the CPA); • where the award has been rendered; or • as a general rule for non-judicial documents (Arti - cles 50 and 51 of the CPA), where the residence of the defendant is located, where the asset is locat - ed or where the obligation has to be performed.
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