Monitory action: how to collect a debt backed by written evidence
The monitory action is a procedural route used to collect from someone against whom there is written evidence of the debt, but no enforceable instrument. As a rule, it tends to be faster than the ordinary cognizance proceeding.
What the monitory action is
The monitory action is a procedure provided for in the Code of Civil Procedure aimed at those who hold written evidence of a debt where that document does not, on its own, carry the force of an enforceable instrument. It serves, for example, to collect amounts represented by documents that prove the obligation, without immediately requiring the ordinary procedure.
When it usually applies
As a rule, it applies when the creditor holds a document showing the existence of the obligation, but one that does not qualify as an out-of-court enforceable instrument. Whether it applies depends on the specific case and on the analysis of the document presented.
- Payment of a sum of money
- Delivery of a fungible thing or of a specific movable asset
- Performance of an obligation to do or not to do
How the procedure usually works
Once the petition with the written evidence is filed, the judge may issue an order for the debtor to pay or perform the obligation within the legal deadline. If the debtor does not object through counterclaims, the document tends to be converted into a judicial enforceable instrument, allowing enforcement.
The role of counterclaims
The debtor may file monitory counterclaims to contest the debt. In that case, the procedure usually moves to an evidentiary phase similar to the ordinary proceeding, in which the parties may produce evidence.
Frequently asked questions
Does any document qualify as written evidence?
Not necessarily. As a rule, a document showing the existence of the obligation is accepted, but its adequacy depends on the case and on the court's assessment of the material presented.
Is the monitory action faster than ordinary collection?
It tends to be faster when the debtor files no counterclaims, since the document may be converted into an enforceable instrument. If a defense is raised, the proceeding may be prolonged.
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