With the publication of Law 15/2015, of July 2, on Voluntary Jurisdiction, in which the eleventh Final Provision modifies the Law of May 28, 1862, on Notaries in which a new Title, the VII, of “Intervention of Notaries in special files and acts” is introduced, in which in its chapter IV, Section 2 in articles 70 and 71 establish the rules of “claim of uncontrasmented monetary debts”, or what is commonly called the Notarial Monitorio.
It is a question of granting new powers to the Notary, being able to claim before him monetary debts that are not contradicted, it will allow the creditor to have a voluntary payment letter or the formation of an extrajudicial enforceable title to which the debtor, where appropriate, may only oppose judicial means for those causes assessed in article 557 of the Civil Procedure Law.
Although it is commonly called notarial order for payment, the Voluntary Jurisdiction Law itself explains in its expletion that it is not an order for payment procedure or small amount, but what is sought is to apply the European Regulation establishing a European enforcement title for untested claims, and that allow it to be filed, as an alternative measure to the judicial route that contributes to reducing the volume of cases that are registered annually in the Courts. It is an alternative process, which does not exclude the civil order for payment procedure stipulated in articles 812 and ss, but is integrated as one more option in the claim of monetary debts.
Existence of a monetary debt of a civil or commercial nature, regardless of the origin, and without taking into account limits due to the amount.
It is also required, as in judicial order for payment proceedings, that this debt be liquid, determined, overdue and enforceable.
If these requirements are met, the Notary may be requested to require the debtor to pay, previously verifying that the debt presented by the creditor is documented and that there is no doubt about the existence of it, that is, that it is an undoubted debt. In the claim for the debt, the principal, remunerative interest and default interest applied must necessarily be broken down.
No Notary may be chosen, the one that corresponds to the debtor’s domicile must be chosen by residence, whether it is the one that appears in the documents that prove the debt, the one that is the habitual domicile of the debtor, or any other in which the debtor can really be found.
The following debt claims are excluded:
- a) Debts that are based on a contract between an entrepreneur or professional and a consumer or user.
- b) Those based on article 21 of Law 49/1960, of July 21, on Horizontal Property.
- c) Maintenance debts in which minors or persons with judicially modified capacity are interested, nor those that fall on unavailable matters or operations subject to judicial authorization.
- d) Claims in which a Public Administration is concerned.
Likewise, in addition to the list of excluded claims, the Notary will not accept the request if any of the data, documents or is not considered competent.
Start of the process
The Notary will collect the identity of the creditor and debtor, domicile of both, origin, nature and amount of the debt. Accompanying the documents that are the basis for initiating the claim.
The domicile of the debtor and creditor will be collected as reflected in the documentation provided, if these are not the current ones, they may be modified after sufficient documentary accreditation.
Request to the debtor.
Once the creditor’s application has been accepted and the requirements have been verified, the Notary will require the debtor to pay the petitioner within twenty working days.
Once the requirement is made, several alternatives can happen:
- The debtor is not located or the request cannot be delivered; in that case, the Notary terminates his action, leaving open the possibility that the creditor can exercise a claim through judicial means.
- The debtor is located and required by the Notary; in this case the process continues.
- The debtor refuses to accept the documentation; the result will be the same as if you had accepted it, leaving the documentation at your disposal in the Notary’s Shop.
- The request made to others will be valid, provided that they are at home and are of legal age, being able to be employees, relatives or any other person who lives with the debtor or who is responsible for receiving documentation at the debtor’s usual place of work, warning in that case the Notary, of the obligation to deliver the request to the debtor or give notice of it.
- If the addressee is a legal person,the Notary may deliver the request to any adult who is part of the administrative body, or who in the opinion of the Notary acts as the person in charge of the legal person to receive requirements or reliable notifications.
Appearance of the debtor.
Once the requirement has been practiced:
- If the debtor appears,he may:
- Pay the debt within 20 days before the Notary.
- Pay the debt directly to the creditor.
- Oppose, collecting the Notary the reason for the opposition in a diligence, subsequently transferring to the creditor, and ending the notarial action, always leaving the judicial route open.
- If there are several debtors and only one opposes, it may lead to the end of the notarial action with respect to all, if the cause is concurrent, stating the payments that could have been made by any of them.
- If the debtor does not appear, nor does he object,the Notary will record it in the minutes, and from that moment the record will be a document that will entail execution for the purposes of number 9 of paragraph 2 of Article 517 of the Code of Civil Procedure. Such enforcement shall be conducted in accordance with the provisions for extrajudicial enforceable titles.