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Effects of expiration and prescription in judicial collection processes
[/vc_column_text][us_separator][vc_column_text]Both expiration and prescription are legal figures widely used in judicial collection processes. Both have two common elements: the objective, relating to the passage of time, and the subjective, relating to sanctions for the inaction of the right holder. However, the results generated by each are very different, and therefore it is important to know the definition and effects of each in order to be able to identify in the specific case which of the 2 figures is the most favorable to apply.The expiration date.Expiration could be conceptualized as the procedural sanction that, in accordance with the principles of effective judicial protection, procedural economy, and legal certainty, occurs when the plaintiff or counterclaimant—without just cause—abandons the court proceedings for more than six months, failing to comply with a procedural burden previously ordered by the jurisdictional authority. This failure to comply generates a procedural freeze that affects the other party, due to the impossibility of prosecuting the case. It is even in the interest of the Administration of Justice to release its own jurisdictional bodies from the obligations arising from the existence of the legal-procedural relationship. Expiration will be declared ex officio or at the request of a party. In Judicial Collection proceedings, expiration will apply only in cases where embargoes have been decreed; that is, the following requirements must be met:
- That the defendant's salary has been seized in the file or that the annotation of some asset has been ordered in the file.
- That there is still no final judgment in the proceedings, meaning the parties have not yet been notified.
If the file meets these requirements and the plaintiff has abandoned the case for six months or more, during which there has been no procedural impetus to continue the proceedings, the judge may be asked to declare the file void.Effects of expiration.Once the expiration of the claim has been granted and declared, the proceedings and any rights acquired with the filing of the claim will be terminated. In the case of judicial collection, the case will be closed, the embargoes ordered will be lifted, and any withheld funds must be returned to the defendant. However, the expiration will not prevent the case from being refiled and the debt from being pursued, as such a judgment does not create material res judicata.The prescription.Prescription refers to the extinction of a right, debt, action, or liability due to the passage of the established time. Thus, it constitutes the instrument by which the passage of this period causes the loss of the opportunity to assert a right due to the holder's inaction. The effectiveness of this institution consists in preventing the requirement for the fulfillment of an obligation, since it loses its legal nature and becomes a natural obligation. Positive prescription also exists, through which it is possible to acquire a right. Thus, the First Chamber has long held:“Prescription is a means of acquiring a right (acquisition prescription) or freeing oneself from fulfilling an obligation through the passage of time (negative or liberatory prescription)”. No. 44 of 2:30 p.m. on June 15, 1994 (First Chamber of the Supreme Court of Justice). Judicial collection proceedings (specifically monetary and execution monitoring proceedings) are admissible when the collection is made of an executive title that establishes the existence of a liquid and demandable monetary obligation. These titles are determined by law through articles 111.2 and 166 of the Civil Procedure Code. Therefore, the statute of limitations will vary depending on the type of executive title being collected. An example of the above would be: bills of exchange, checks, promissory notes, unregistered pledges, credit card balance certifications, among others, to which the 4-year statute of limitations applies, while invoices expire after one year, unregistered mortgages after 10 years, registered pledges and mortgages after 4 years, and when we refer to the statute of limitations on interest, the term is 1 year, in accordance with sections 968 and 984 of the Commercial Code.Effects of prescription.The effects of the statute of limitations decreed will depend on the nature of the statute of limitations decreed. That is, if the statute of limitations is declared solely on the liquidated interest, the plaintiff will simply lose the right to collect the prescribed interest from the defendant. However, if the judgment declares the statute of limitations on the principal or executive title, the effects will be very different, since the judgment will constitute material res judicata, declaring the entire debt prescribed, and the plaintiff will lose the right to collect the amounts owed from the defendant at any stage; that is, the debtor's obligation is extinguished. Having analyzed the above concepts, the difference between expiration and prescription becomes clearer. With expiration, the case is ordered to be filed and its effects are reversed, but the plaintiff does not lose his right to file a new lawsuit to collect the debt. With statute of limitations, on the other hand, if it is appropriate, it completely extinguishes the debtor's obligation at all stages. Therefore, when faced with a legal debt collection process, it is very important to seek the advice of experts in the field. They will be able to study the case in depth and determine which of the two legal mechanisms outlined best suits your specific case. For any questions, please do not hesitate to contact us at the following email address:ggodinez@lexincorp.com [/vc_column_text][us_separator][vc_column_text]Written by: Licda. Geraldine Godínez [/vc_column_text][/vc_column][/vc_row]
