Notes and Comments. October 2015
SEPIN Legal Department
The first thing to point out is that these are only (albeit relatively important) procedural changes to the summary judgment procedure, since until the debtor against whom the proceedings have been brought objects, everything remains exactly the same. Most importantly, the preliminary steps for the homeowners' association to file a claim through this procedure are not modified in any way.
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. Article 815 of the LEC, after the reform carried out by the aforementioned Law 42/2015, establishes that the defendant's opposition must be "founded and motivated", whereas before the debtor was only required to make "succinct" allegations, it being sufficient to simply indicate that he had no outstanding amount to pay or any other certain or uncertain issue.
Having said that, it should be noted that this new requirement does not mean that the breadth of the response allows for raising issues unrelated to the debt itself. For example, it is clear that the defendant debtor cannot attempt a kind of "challenge" to the Board Meetings, which, in any case, would not be considered by the Court and undoubtedly falls under ordinary proceedings. However, this and other limitations do not prevent the defendant from fully and thoroughly explaining the grounds for the objection, taking into account, moreover, the provisions of Article 818 of the same Civil Procedure Law, which is 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 written opposition of the defaulting 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 been rendered ineffective, nor is it considered "res judicata".