How to claim the debt that I have against another company
In principle, capital companies, especially limited and joint-stock companies, tend to be liable for the debts generated for the development of their commercial activity, with the social capital. However, when a company is insolvent, it can claim the debt directly from the administrators.
Thus, the partners of the company, respondent with the social contribution that each one has subscribed to form the capital, which is why responsibilities are contracted in the name of the company, hence, it can only be claimed directly from the company.
However, it often happens that if any outstanding debt has been stopped paying, and the company is in bankruptcy or simply has a lack of liquidity, most of the time its administrators do have personal assets with which it can be paid. the debts.
Therefore, the administrator will be responsible for the payment of the debt that is claimed when any of the assumptions established in the current legal system are configured, and the corresponding procedure has not been carried out to settle the debts.
Therefore, the administrator or administrators will respond jointly and severally when the company is in a situation of insolvency, provided that the following cases are met:
- The existence of an unpaid credit against a company;
- That the company is within the causes of dissolution of the company provided for in the Law;
- That the responsible administrators have not effectively called a general meeting to resolve the dissolution of the company due to lack of liquidity;
- That the bankruptcy has not been requested.
However, there is also the possibility of claiming the debts of companies that have already been dissolved, according to a judgment of the Supreme Court dated May 24, 2017, which allows the possibility of claiming companies that were dissolved for debts. contracted prior to its dissolution.
Whom it must be claimed
In accordance with the ruling issued by the Supreme Court, it was established that the companies are represented by a liquidator, so the claim for the debt may be made directly to the company that is duly represented by it; However, it does not rule out the possibility that the debt is claimed from the partners that make it up, who respond in solidarity.
Therefore, and given the possibility that a recognition by the court of the claimed debt is needed, it is important to sue the company directly, hence, despite the dissolution of a company, its legal personality is maintains and therefore its ability to be the subject of a judicial process.
Ways to exercise the debt claim
Within this framework, there are two ways to claim debts, such as extrajudicial and judicial, both being necessary, since the first could avoid incurring higher costs. In order to structure the steps to exercise the debt claim we have:
1.- Out-of-court route: the ideal in these cases is to hire the services of a specialist lawyer and contact the debtor to reach an agreement that favors both parties, with the participation of the lawyer, errors will be avoided, since their technical knowledge facilitate the communication and signing of the agreements that may arise.
The deadlines to cancel the debt that is claimed may be established, however, it may happen that in the end the insolvent company does not comply with the agreements and it has to resort to judicial means, in which case the amount of the debt must be weighed and the costs that are generated during the process.
2.- Judicial means: once the costs of the process and the amount of the debt to be claimed have been weighed, we will have the following steps:
Initial request for monitoring procedure:
- Request by means of a lawsuit and duly assisted by specialist lawyers, the corresponding payment order, and the unpaid invoices must be attached.
- Once the request is received in the Court, the latter sends it to the company that is in default so that within a period of no less than 20 business days, it may proceed to pay the claimed debt, or, failing that, it objects to it, owing justify your opposition to payment.
- In the event of an opposition, if the debt does not exceed 6,000 euros, or due income is being claimed, actions to recover possession of a property, among others, regardless of its amount, a verbal trial may be carried out.
- On the other hand, if amounts greater than € 6,000 are claimed, or the procedure to be seen on honorific rights, challenge of company agreements, unfair competition, among others, regardless of its amount, the trial will be ordinary.
- If the company does not respond to the debt claim within 20 business days, the Court will proceed to grant an enforceable title to the creditor for the amount demanded.
3.- Execution of the decision: sign as the judge's decision has been, an application for execution must be filed in which the seizure of the debtor's assets is requested to satisfy the debts claimed.
Finally, it is important to consider the debtor's assets, and verify that they are sufficient to satisfy the debt that you want to claim.
Contact us, and our debt specialist lawyers will study your specific case.
At Forcam Abogados we have offices in Barcelona, Tarragona, Reus and Tarrega.