Consequences of the failure to notify the defendant of the procedural default
In this article we will discuss the possible consequences of the failure or refusal to notify the defendant of the declaration of default. Each Court adopts a position that on occasions can result in the subsequent annulment of the proceedings carried out after the declaration of default. Therefore, we must analyze the existing regulations and the different positions that doctrine and jurisprudence have adopted in this regard.
Regulations regarding notifications of resolutions, certificates and the declaration of default
To resolve this question we will refer to the Civil Procedure Law (”LEC”, articles 155, 156, 158, 161 and 497), which establishes that communications will take full effect in as soon as the correct remission of what has to be communicated even if its receipt by the addressee does not record is accredited.
Later on, it is specified that when it cannot be proven that the addressee has received a communication whose purpose is to appear in court or to carry out or personally intervene by the parties in certain proceedings procedures, it will be delivered in the manner established in article 161.
This article deals with the communication of the copy of the resolution or the identity card, and several assumptions are made:
- That the recipient of the communication is found at home and refuses to receive the copy of the resolution or the certificate or does not want to sign the proving of delivery, in which case, the official or attorney who assumes his practice He will let you know that the copy of the resolution or the certificate is at your disposal in the judicial office, producing the effects of the communication, leaving a record of it in the diligence.
- If said addressee is there, delivery can be made, in a sealed envelope, to any employee, family member or person with whom you live, over fourteen years of age, who is in that place, or to the concierge< /strong> of the farm, if any, warning the receiver that he is obliged to deliver the copy of the resolution or the certificate to the recipient thereof, or to give him notice, if he knows his whereabouts.
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On the other hand, article 497 clarifies that the decision declaring default will be notified to the defendant by mail, if his address is known and, if not it may be, through edicts . Additionally, it is detailed that the defendant will not receive any new notification except for the resolution that puts an end to the process. Finally, the sentence or resolution that puts an end to the process will be notified to the defendant personally, in the manner provided in article 161 LEC. But if the defendant’s whereabouts are unknown, the notification will be made by publishing an extract of it by means of a public notice.
The problem arises when there is a known address but the defendant denies the communication or it is not possible to deliver it for reasons attributable to the rebel (procedural bad faith).
Should the Court exhaust the localization mechanisms available to it under 156 of the LEC (such as the consultation of the databases that appear in the Judicial Neutral Point or communication by letter rogatory)? Is it possible to proceed directly to the dictal notification? Can it be understood that the defendant’s refusal to receive the writ of summons and the subsequent declaration of default exempts the Court from even having to notify it by edict? To answer these questions, we must turn to doctrine and jurisprudence.
Doctrine: Guarantee Thesis vs Pragmatic Thesis
On the one hand, the guarantor position maintains that in the event that the defendant has a known address, and the notification is negative, all the routes that the Court has, and lastly, if the previous ones fail, go to the edictal notification. A direct consequence of this is the suspension of the indicated appearance and the delay of the procedure.
On the other hand, the pragmatic position maintains that if the defendant has been located at the summons, and subsequently does not include the notice of procedural default, this should not cause any suspension, since it is the rebel who, by his own actions, has placed himself in that position, proceeding to communicate by edict as indicated in article 497 LEC. This thesis avoids undue delays since the investigation of the defendant’s address and the need for the effective delivery of the notification is limited to the writ of summons and the sentence that puts an end to the procedure.
However, this position carries a risk, and it is the possibility that the higher instance to which the defendant appeals declares the procedural nullity of the proceeding (articles 225 et seq. LEC).
Case law: conflicting decisions
In relation to the first position, for illustrative purposes we will point out a judgment handed down by the Provincial Court of Barcelona of October 9, 2013, by which the procedural annulment of the proceedings subsequent to the declaration of default, which had to be reversed (and the defendant must be effectively notified of the declaration of default):
“A different response deserves, in our opinion, the request for annulment of the proceedings of the court subsequent to the ordering procedure of May 9, 2012, in which the default of the defendants. Specifically, with regard to Mr. Romeo, that procedure ordered that, in accordance with article 497.1 LEC, because his address is known, he be notified (that resolution) by certified mail with acknowledgment of receipt.
However, the defendant denies having received the notification and in the proceedings there is no document proving the agreed delivery by mail, despite the fact that there are other accusations receipt (of summons and notification of the sentence to Mr. Romeo). Consequently, we cannot sustain with the necessary certainty that the provisions of article 497.1 LEC were complied with. […] There was, therefore, a violation of the rules of procedure that caused defenselessness to the defendant, [… ] and prevented him from exercising his rights in the later phases of the trial before the court’s ruling”.
This issue has also been addressed by the Constitutional Court (“TC”) clarifying that precautions and guarantees that are reasonably adequate should not be frustrated for reasons beyond the control of the subjects to whom it affects (SSTCC 121/1995, of June 18 and 64/1996, of April 16). However, the TC clarifies that it is not its intention to force the corresponding Judge or Court to carry out excessive investigative work that could lead to the undue restriction of the rights of defense of the remaining persons in the process (STC 268/2000, of November 13).
On the other hand, the Provincial Court of Madrid (Sentence of the Provincial Court of Madrid number 586/2016 of November 29, 2016), the Provincial Court of Málaga (Sentence of the Provincial Court of Málaga of February 2, 2016), the Provincial Court of Las Palmas de Gran Canaria (Sentence of the Provincial Court of Las Palmas de Gran Canaria of May 2, 2013), and the Provincial Court of Zaragoza (Sentence of the Provincial Court of Zaragoza number 20/2015 of February 6, 2015), among others, have pronounced in reference to the pragmatic thesis.
In particular, the latter alludes to the possible violation of the provisions of article 497 LEC. The judge affirms that the content of said precept must be interpreted in the manner indicated in the Supreme Court Judgment (Civil Chamber, Section 1) number 575/2014, of October 27, RJ 2014/5634:
“It is true that the notification to the defendant of his declaration of default ( article 497 of the Civil Procedure Law ) was also attempted by certified mail to the administrator at the same address and could not be achieved, without that it was followed by dictal notification. But this, at most, could integrate a procedural irregularity that in no way leaves the party attributable to the Court defenseless”.
He reasons this argument in that the defendant was aware of the initiation of the process, and this could appear at any time, even The deadline for answering expired, in order to find out the date indicated and attend the preliminary hearing and, nevertheless, he chose not to do so. That is why he affirms that the alleged defenselessness suffered can only be attributed to the actions of the defendant herself. Consequently, he concludes that the nullity of actions should not be considered for not recording the notification of the declaration of default .
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Conclusion
Although the courts have largely taken a pragmatic stance to avoid suspension of hearings and trials through this procedural strategy of the defendant, this is not a unanimous stance so it should be to the specific case.
For reasons of procedural efficiency and in order that the client does not incur unnecessary expenses due to the possibility of having to repeat the actions for nullity, we must know what the position of the Court that hears the process and the Provincial Court that will later hear the appeal.
In any case, the best procedural strategy for the plaintiff to follow is to notify the Court at the prior hearing or in the trial of this problem and the possible nullity of the proceedings. Likewise, it must be recorded that in order to avoid the possible defenselessness of the defendant, if your Honor deems it appropriate, the procedure must be suspended until the effective communication of the declaration of default is known. After this, it will be the court that decides whether or not to suspend the hearing, and the counterparty will not be able to later argue procedural bad faith of the plaintiff.
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