A reality that every company or individual must face at some point in their existence is that they will need to take out a loan, but also to be in the position of waiting for payment of a debt, for goods delivered or a service rendered. However, the reality is that, at times, faced with the debtor’s insolvency or irresponsibility, it becomes necessary to take specific action in order to recover our money.
At BBMabogados we have the best professionals for pursuing the defaulting debtor who refuses to honour their commitments. Do not hesitate to contact us to assess your situation and design the best strategy.
How to collect a debt in Santander?
Debts are all those obligations lawfully created in favour of another, in a clear and precise form, which must also be fulfilled within a set time, previously agreed by the parties.
From the above, it stands out that the debt must be due. In this respect, it should be remembered that it is not enough for us to suspect the debtor’s intention not to pay; we must necessarily wait until the agreed period has elapsed. That said, once the payment period has passed, the corresponding proceedings against the defaulter should be started as soon as possible.
OUT-OF-COURT RECOVERY
This means that collection will be attempted directly, without the need to involve the courts. In any case, it is always necessary for these collection actions to be carried out by a solicitor, whose task will be to secure the return of the money and, in turn, avoid incurring in practices that the defaulter could later invoke in their favour, such as harassment during collection.
At this stage, alongside the solicitor, we should carry out the following actions:
SEEKING THE EVIDENCE THAT PROVES THE DEBT
Every debt must be duly supported by evidence. That is, there must be a document, of any nature, on which the debt is based. These may be:
– Contracts.
– Promissory notes or bills of exchange.
– Invoices.
– Even emails or messages in which the debtor acknowledges and accepts the debt.
AN ATTEMPT IS MADE TO NEGOTIATE WITH THE DEBTOR
At this stage it is necessary to inform the debtor of our express wish to be paid immediately. This communication must necessarily be made by a solicitor, since it will let the defaulter know of our intention to start serious proceedings against their failure to pay.
Broadly speaking, in addition to the request for immediate payment, this communication should also state the exact date (which is why it is recommended that it be sent by certified fax, or burofax), the amount of the debt and any interest that may have accrued, together with instructions on how such payment should be made.
PAYMENT DEADLINE
While the communication should state that payment must be made immediately, it is also prudent to set a strict deadline, for example of 5 days, and indicate that once that period has elapsed the appropriate judicial claims will be started.
JUDICIAL RECOVERY AGAINST THE DEFAULTER IN SANTANDER
There are different ways of suing the defaulting debtor before the courts, so that these judicial bodies order payment and even seize the debtor’s assets to cover the debt; nevertheless, before starting these proceedings it is necessary to investigate the defaulter’s assets.
In this respect, it should be remembered that judicial proceedings will be of no use if the debtor does not have the assets to answer for the debt. That said, this investigation must be carried out with the necessary prudence, in order to avoid committing the offence of invasion of privacy.
With that clarified, let us briefly look at the types of proceedings available to secure that the defaulter pays what is owed:
THE ORDER-FOR-PAYMENT PROCEDURE (JUICIO MONITORIO) IN SANTANDER
This is a simple and quick procedure in which the judge is asked simply to assess the documents supporting the debt in order to reach a decision. Once the claim has been processed and the defaulter notified, they will have 20 days to present their reasons not to pay the debt or to pay it. If they do not do so, the judge must issue a judgment ordering payment, which may be enforced against the debtor’s assets.
This procedure is quite fast, but its downside is that it is enough for the debtor to deny that the debt exists for the procedure to stop or to be converted into ordinary proceedings.
ORDINARY PROCEEDINGS
These are the proceedings brought against the debtor and involve the debtor being summoned, a claim being filed and the evidence proving the existence of the debt being submitted to the proceedings.
Ordinary proceedings, in turn, have two different procedures depending on the amount claimed, namely:
– Under 15,000 euros: the case follows the oral hearing (juicio verbal) procedure.
– Over 15,000 euros: this type of claim is conducted through the ordinary written procedure established by law.
BILL-OF-EXCHANGE PROCEEDINGS
If our debt is supported or proven by a cheque, promissory note or bill of exchange, then it is possible to resort to these special proceedings, whose stages are established by law but are shorter and simpler than the other procedures.
Do not hesitate to contact us so that we can suggest the mechanism that best suits your situation.
SOLICITORS WHO EMPATHISE WITH THEIR CLIENTS IN DIFFICULT MOMENTS
We protect our clients’ rights with the utmost dedication and diligence, placing special emphasis on personal attention
