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Cómo evitamos la pérdida de una propiedad por notificaciones judiciales defectuosas

How do we prevent the loss of a property due to defective court notifications

 FA Lawyers

Imagine being on the verge of losing a home in Spain without knowing there was a court case against you. This was the critical situation one of our clients, who resides abroad, faced. We managed to overturn the entire legal process and guarantee her right to a defence through the legal mechanism of annulment of proceedings.

The legal problem and the owner's helplessness

A claimant initiated legal proceedings asserting rights over our client's property. As she resides outside the country, the court attempted to send the claim and summonses by ordinary postal mail. The documents arrived damaged and without any proof of receipt to guarantee their delivery.

In the face of this breakdown in communication, the court opted for the swift route and posted an edict on the notice board. Immediately afterwards, they declared our client to be in default. The trial proceeded without her being able to defend herself or present evidence in her favour.

As well as the court's errors, we are facing clear procedural bad faith from the opposing party. The claimant deliberately concealed from the court that there were other legal proceedings open between them. They knew perfectly well that our client had lawyers and representatives in Spain, but they remained silent on this fact to prevent the claim from being effectively served.

Our firm's strategy

We took on the defence and filed a submission requesting the radical nullity of the procedural actions. We argued and proved the following procedural violations.

  • Strict non-compliance with applicable regulations for citizens residing outside Spain regarding international legal cooperation.
  • Omission of the use of letters rogatory or consular channels for the service of judicial documentation.
  • Violation of the right to effective judicial protection caused by premature and unjustified official notification.
  • Malicious concealment of contact details and legal representatives by the claimant.

The result obtained

Our intervention succeeded in halting the upcoming trial. We managed to get the court to annul the entire process that had been carried out behind our client's back and to order that proceedings be set back to the initial stage of when the lawsuit was served. Thanks to this decisive legal action, the owner regained her full procedural deadlines to respond to the accusations and protect her property with all the guarantees of the law.

Suggested sources and Key entities

To ground an appeal for annulment of proceedings due to defects in international notification, we recommend consulting and referencing the following regulations and case law.

  • Constitutional Court of Spain Case law on the violation of the right to effective judicial protection due to material indefension arising from irregular public notices. Specifically, rulings condemning judicial decisions that are mere expressions of will without material or formal justification.
  • Ministry of Justice and MAEC Law 29/2015, applicable regulations governing international legal cooperation in civil and commercial matters. It establishes the legal requirements for notification to residents abroad.
    Consulta URL Law 29/2015 in the Official State Gazette
  • Judicial Documentation Centre (CENDOJ) Sanctioning resolutions on procedural bad faith as typified in Article 247 of the Civil Procedure Law. The public search engine managed by CENDOJ allows consultation of case law and judicial doctrine from different courts on the imposition of fines for the concealment of procedural data.
    Consulta URL CENDOJ Case Law Search