SPAIN Law and Practice Contributed by: Alfonso López-Ibor, Pablo Henríquez de Luna, Virginia Jover and Pedro Echeguren, López-Ibor Abogados
Estimated Length of Time The time it takes to enforce domestic judgments depends on how easily the defendant’s assets could be converted into cash money. Attaching the defend - ant’s bank accounts is the easiest and fastest way to pay the debt. Unfortunately, such accounts do not normally cover the total debt, and an auction of the defendant’s assets will have to be carried out, delay - ing the payment of the debts, especially if there are third parties who claim ownership of the attached or seized assets ( tercería de dominio o de mejor derecho – Articles 595 and 614 et seq of the CPA). Most Efficient Option The most efficient option consists of seeking enforce - ment of mortgage notarial deeds, as mortgage enforcement procedures are faster than the common ones. Therefore, banks seeking the enforcement of notarial deeds (ie, first notarial copy of the mortgage deed) are recommended to use this option of enforce - ment, but only if there are no potentially “unfair terms” included in the mortgage contract (clauses of early termination based on trivial grounds of breach of con - tract, etc). The post-judgment procedure for determining the defendant’s assets is described in Article 590 of the CPA (judicial investigation of the state of the enforce - ment debtor). The defendant’s assets must be identified by the judgment debtor in the enforcement claim (Article 549 of the CPA); however, if there are concerns that the value of the debtor’s assets will not cover the amount for which the enforcement has been ordered, further search and investigation by the court should be required. 2.4 Post-Judgment Procedures for Determining Defendants’ Assets At the expense and request of an enforcement creditor who cannot designate sufficient assets of the enforce - ment debtor, the court clerk shall issue an order to move the proceeding forward (Article 590 of the CPA). The following measures will be contemplated in the order:
• compelling any bank, public body, registry or persons stated by the creditor to provide the list of assets and rights of the enforcement debtor of which they are aware – the court clerk shall not claim data from bodies and registries when the enforcement creditor can obtain such information either themselves or through their court repre - sentative, who is duly empowered to do so by the grantor of their power of attorney; • requesting co-operation with the above-mentioned parties; and • issuing periodical coercive fines when co-operation is not provided (sanctions are subject to appeal, according to Article 591.3 of the CPA). 2.5 Challenging Enforcement of Domestic Judgments As a general rule, the enforcement court’s orders can be challenged on the following grounds: • procedural matters (Article 559 of the CPA); and • substantive law matters (Article 560 of the CPA). These grounds of opposition differ depending on whether the domestic judgment or non-judicial enforcement document is: • a final judgment (Article 556 of the CPA); • a provisional judgment (Article 528 of the CPA); or • a mortgage foreclosure (Article 695 of the CPA). Common grounds to stay enforcement proceedings based on domestic judgments or non-judicial enforce - ment documents are as follows. • On procedural matters – irregularities in the proce - dural rules affecting the right to be heard and to a fair process of law. For example: (a) judgments rendered without valid service of proceedings; (b) lack of capacity or representation of the party seeking enforcement (Article 559 of the CPA); (c) fraudulent enforceable document (Article 569 of the CPA); (d) enforcement judgment revoked (Article 566 of the CPA); or (e) previous insolvency proceedings (Article 568 of the CPA and Articles 55 to 57 of the Insolvency
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