The word Monitorio has multiple linguistic meanings. According to the Dictionary of the Royal Academy of the Spanish Language, this word comes from the Latin Monitorius, which means: "to warn or admonish, warn or require.". The order for payment process is a special trial regulated in the Civil Procedural Code that has as its objective the execution of a monetary debt, due and payable at the present time with a maximum limit of Two Hundred Thousand Lempiras (L.200,000.00).
The article is clear in stating that the payment order process will only be applicable if the payment of monetary obligations is sought, that is to say, that any other obligation to do or not to do, to execute documents, or to claim the delivery of a property or a specific movable asset, based on a real right, could not be demanded by this means, for which reason said process is established as a possibility, only to achieve the satisfaction of the unfulfilled economic obligation.
Difference between the Monitoring Process and the Executive Process
The Summary Proceeding has many similarities with the Executive Judgment in the first phase of enforcement, since in both the debtor is required to pay and is granted a period of time to do so. The fundamental difference between the Summary Proceeding and the Executive Judgment is that in the former the document on which the action is based is flexible and open, while in the Executive Judgment the document on which the action is based is rigid and expressly determined by law; the Summary Proceeding also has a limited amount, while the Executive Judgment does not have a limit for the amount. In the procedure subsequent to the enforcement phase, the two trials differ substantially.
The documents that may be used to justify the debt in the payment order process are the following:
- By means of documents, whatever their form and type or the physical support on which they are found, that appear signed by the debtor or with its seal, stamp or mark or with any other sign, physical or electronic, originating from the debtor.
- By means of invoices, receipts for delivery of goods, certifications, telegrams, telefaxes or any other documents that, even if unilaterally created by the creditor, are those that usually document the credits and debts in relations of the kind that appear to exist between creditor and debtor.
- By means of commercial documents evidencing a prior long-term relationship.
One of the advantages is that by its nature it is intended to expedite the administration of justice in the commercial traffic, that is why the law confers to the documents on which it must be based a characteristic of fast and effective title, that is to say, that it is to provide a solution in an agile way and without so many requirements that are distressing for the creditor to obtain. With the order for payment procedure, the legislator facilitates the rapid creation of an enforceable title, by means of the invocation and proclamation of the credit right itself.
As for its processing, it is simple, since the claim or in its absence the form that must contain all the requirements of Article 679 paragraph 1 of the aforementioned Code of Civil Procedure is presented, and above all, the document supporting the claim. document supporting the claimIn this case, the debtor will be ordered to pay the creditor within twenty days or to oppose the same, expressing in this case, the reasons why, in his opinion, he does not owe the totality of the claim or part of it. In addition to the requirement itself, the debtor will be warned that if he does not pay or opposes the payment, the execution will be issued against him, which consists of issuing an order to initiate the execution for the amount claimed by the creditor.
Regarding the procedural position of the debtor, the following possibilities may arise:
- If the debtor chooses not to pay and instead opposes within the term of twenty days, the payment order procedure is concluded, transforming the process into an ordinary or abbreviated trial, depending on the amount.
- If the opposing party accepts and partially pays the debt claimed, the ordinary or abbreviated trial will only deal with the difference, being considered as partially settled with respect to the amount accepted by him.
In both cases the amount is fundamental to continue with the process, if the original amount or the amount resulting from the partial acceptance of the claim by the debtor is not higher than One Hundred Thousand Lempiras (L.100.000.00), the Court will immediately proceed to summon the parties to the hearing according to Article 588 of the Code of Civil Procedure, avoiding the lawsuit or the standard form with which the abbreviated process is generally initiated, on the other hand, when the amount of the claim or the unpaid balance exceeds One Hundred Thousand Lempiras (L.100,000.00), the creditor must file a new lawsuit within a period of one month, counted from the delivery of the copy of the writ of opposition.
If the creditor does not file the claim within the aforementioned term, the proceedings will be dismissed and the creditor will be ordered to file, and the creditor will be ordered to pay the costs. If the creditor files the claim in due time and form, the debtor is summoned to answer the claim within thirty (30) days and then the proceeding is continued in the manner provided for the ordinary proceeding.
One question that may arise is whether it is possible to request the adoption of precautionary measures within this order for payment proceeding. Gómez Colomer understands that it is not possible, because from the formal point of view, this process is sufficiently fast so that the danger of delay is not an issue to be considered. From the material point of view, the order for payment lawsuit seeks that the debt gives rise to an enforceable title, which, if not complied with, allows direct entry into the execution.
In conclusion, the main objective of the payment order process is to achieve the immediate execution of the credit; so that, once the claim has been admitted for processing and the payment request has been made, if the defendant does not oppose within the legally established term, we will obtain an executive title; making possible the seizure of his assets practically immediately, and therefore, it is conceived as a means of protection of certain credits, especially liquid monetary credits of professionals and medium and small businessmen.
Brenda Hernandez
