Notes and Comments. October 2015
SEPIN Legal Department
The first thing to note is that these are only changes (although relatively important) of the procedural issue in the monitoring trial, since until the moment in which, where appropriate, the defaulter to whom the process has been directed “opposes ”, things remain exactly the same. And the most important thing is that the previous procedures of the Community of Owners for the timely claim through said procedure are not modified at all.
Reiterating the above, it is stated that art. 21 of the Horizontal Property Law, without any change, so its provisions of the Board regarding authorizing the President or Administrator for the action, approval of the settlement of the debt, requirement to the defaulter and expenses thereof, seizure of assets and imposition of costs of Lawyer and Attorney, etc., so these Notes have the exclusive purpose of pointing out the changes that have taken place by Law 42/2015, which modifies the Civil Procedure Law, with entry into force on 7 of October 2015, which do affect the development of the monitoring process, provided, as indicated above, that the defendant presents an opposition.
The issues to take into account, from a procedural point of view, are the following:
First. In art. 815 LEC, after the reform carried out by the aforementioned Law 42/2015, it is established that the defendant's opposition must be “founded and motivated”, when before the debtor was only required that the allegations be “succinct”, it being sufficient to simply indicate that he did not have any outstanding amount or any other certain or uncertain matter.
Having said the above, it must be noted that this new requirement does not mean that the breadth of the response allows questions other than the debt itself to be raised. As an example, it is clear that it is not possible for the defaulting defendant to attempt a kind of “challenge” of the Boards, which, in any case, would not be taken into account by the Court and, without a doubt, correspond to the ordinary procedure, but that and Other limitations do not prevent you from indicating in detail and reasoning the reasons for the opposition, also taking into account what appears in art. 818 of the same LEC and discussed below.
Second. Until the reform carried out by the aforementioned Law 42/2015, when there was opposition from the debtor and the amount was lower than the maximum provided for the oral trial (currently, 6,000 euros), the Court already summoned the parties for the corresponding process , in accordance with art. 818 LEC.
Well, now this is no longer the case, in accordance with the same provision, the defendant's opposition is communicated to the creditor, in this case the Community, who may allege what is appropriate challenging the statements of the defaulter in the period of ten days. Both parties may request the holding of a Hearing following the procedures of arts. 438 et seq. LEC.
It is assumed that if no one requests the holding of the Verbal Trial Hearing, which is assumed to occur rarely, the Judge will resolve taking into account only the writings of the defaulter and the response of the Community, provided for in the current wording of the aforementioned art. 818 of the LEC with the current wording.
Third. If the amount is higher than that anticipated in the verbal trial, the previous provision of art. 818 of the Procedural Law in the sense that if the person who sued through the monitoring does not present the appropriate ordinary trial within the period of one month, from the transfer of the opposition document from the delinquent owner, the Secretary will issue a Decree dismissing the proceedings and ordering the Community to pay costs, although this does not mean, in any case, that the debt has become void, nor is it considered “something judged".
