In today’s article, we are going to talk in a simple way, about Serve a court claim in Spain, and how it should be done. And that, if it is not done correctly, the nullity of everything that has been done in the court process, could be asked for.
How a claim must be served in Spain
In principle, according to the civil procedure law, LEC, the defendant must be notified personally. Article 155 of the LEC states that in the claim it must state:
– the address or addresses of the respondent.
– likewise, all the data that is known about the respondent. And can be used to locate them. That is, telephone number, fax number, email address, etc.
If it is not possible to designate an address, or notify at known addresses. According to article 156 LEC, the court must try to find out other addresses. Normally, in Official Registries, Social Security, General Directorate of Traffic, police, etc.
Impossibility of notification or to serve documents. Notification by edicts.
Only when it is not possible to notify the defendant or find out other addresses, can they be notified by EDICT or public notice.
But, the Spanish Constitutional Court, TC, has indicated that before notifying by edicts, other addresses must be tried to be found out. All possibilities must have been exhausted to do so.
Consequences of the lack of notification of the claim. Or its defective notification, or by edicts without having tried to find out other address. NULLITY.
Consequently, if a defendant has not been served with the claim. Or, he has been notified by edicts, but no attempt has been made to find out his address. The respondent can request the nullity of the court case, and restart it, from the initial notification.
Aslo, the respondent’s right to an effective judicial protection would not be respected.
The ruling of the Constitutional Court 125/2020 of September 21. Mortgage Foreclosure.
We highlight the court decision number 125/2020 of the TC about how to serve a court claim in Spain On it, the TC declared null and avoid a foreclosure of a mortgage loan against a company. Despite the fact that some attempts had been made to notify the debtor, at several addresses. The TC, understood that the court had violated the debtor’s right. And the court must have exhausted all possibilities, and looked for other addresses; so, we should have tried to notify, in:
– the address of the mortgaged property.
– at the address of the director of the company, which was recorded in the deeds.
– have requested more information from the claimant. Contact details, etc.
Conclusion
If you have learned about the existence of a legal proceeding against you in Spain, you have not been notified or served. Know, that it is possible to check if you have been notified by edicts. And if the notification is correct. It must be confirmed if an attempt has been made to find out your address. Well, if they have tried to serve a court case in Spain, incorrectly, the nullity of the court process could be requested. Which would mean restarting the procedure, and having the possibility to defend yourself.
Check our judicial services and contact us.
The information provided in this article is not intended to be legal advice, it merely conveys information related to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
White & Baos 2021 – All Rights Reserved.
Can the civil courts notify by email only? If you are not living in Spain do the courts have tp submit in the language of country of residency? If documents are missing could this also nullify court date to enable the defendant to submit a defence? All can the court dismiss all of their mistakes and procede anyway? If so where does the defendant stand legally as the court procedure would not be conducted in a fair manner?
Thank you for your message.
The Spanish court normally cannot notify or serve the document only by email, and must be formally served in Spain, or if you are out of Spain as per the different existing options, like the Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents)
But to avoid problems, it could be advisable for you to communicate with the court, normally you will need to do it with a lawyer and procurador (kind of clerk of the court) and ask them to notify you directly giving you a new deadline to answer the claim, etc. so you will make sure that you will have possibility to defend yourself.