The Toledo headquarters succeeded in having the SC in its civil chamber annul a sentence for "fraudulent scheme".
The Toledo office of Euriux Abogados, through the lawyer Luis Pintado, has managed to resolve a long procedure in favor of its clients in which the civil chamber of the Supreme Court has had to pronounce.
In the review of the sentence, the High Court annulled the previous resolutions due to fraudulent scheme on the part of the opposing party.
"In civil proceedings, when we act as plaintiffs, we have the obligation to try by all possible means to locate the other party for the transfer of proceedings," says Luis Pintado.
In this case it has been demonstrated that the opposing party sought enforcement of a claim for amounts through edicts without providing the correct address despite the family relationship.
"If this is not possible, only then do we resort to means of publication by edicts and the like. Well, this obligation is not susceptible of relaxation and even less of interested orientation looking for a default that leaves the matter half settled in our favor by the non-contradiction of the adversary. In the case that has been resolved by the SC, my clients found out that a civil claim for an amount had been filed against them, without having any notice of it", assures the lawyer who has handled the case.
Luis Pintado points out that in the procedure "in fact, the first conscious notification was the seizure of assets. One of them has been working for years at the Spanish Embassy in Colombia and, evidently, nothing was sent to her there, despite the fact that the plaintiff was aware of this fact". That is why the SC rescinded the sentence and the whole ETJ process.
In the decision, the SC states that "the fact that a civil proceeding can be followed against a defendant who has not been located -therefore declared in default- is something exceptional and that the law only admits in order not to prevent the plaintiff the possibility of obtaining a judicial declaration of his right when the defendant could not really be located by the means provided by law, which in many occasions happens due to his own lack of diligence. It is a matter of weighing the rights of both parties with respect to an effective judicial protection, which is effectively not received by those who are declared in default due to the impossibility of locating them, and is provided to those who - as opposed to the defendant - seek the declaration of a right; a declaration that cannot be denied to them by the mere fact of such impossibility of locating them. As correspondence to the recognition of such right, the plaintiff is required to provide any information that could be useful for the location of the defendant, which constitutes a true procedural burden of unavoidable compliance. In such a way that the non-compliance entails that the fraudulent scheme referred to in the cause of review foreseen in n.º 4 of article 510 LEC is appreciated".