Counterclaims and Default Declarations in Legal Proceedings

Counterclaims in Legal Proceedings

Counterclaim: A claim asserted by the defendant against the plaintiff, serving as both a defense and a counter-attack. It involves the defendant's pleadings against the claimant, within their competence.

Requirements for a Counterclaim

• Connection between the defendant's pleadings and the plaintiff's initial claims.
• The Court must have jurisdiction over the subject matter and the counterclaim.
• The counterclaim is filed against the initial plaintiff.

Consequences of a Counterclaim

It is another claim within the same proceeding, discussed and judged alongside the original claim. The counterclaim defendant (original plaintiff) has the right to defend themselves.

Counterclaim Defenses

Types of allegations between the counterclaim and the claim:

Set-off of Mutual Debts

Both a defense and a counterclaim, but primarily a counterclaim. It doesn't require a connection between the two facts (credits). The possibility of alleging set-off is found in article 408.1 CPA.

Nullity of the Contract

Where the plaintiff alleges a contract exists, and the defendant claims it is void. If this is the defense, the defendant seeks a declaratory judgment stating the contract is null (408.2 CPA).

Declaration of Default and its Effects

A declaration of default occurs when a defendant fails to appear on the date or within the time limit stated in the summons or order to attend.

Requirements for Declaration of Default

• Proceedings are pending: the complaint has been filed and admitted.
• Service has been duly made on the defendant.
• The time limit for filing the statement of defense has elapsed.

The Court Clerk declares the defendant in default.

Consequences of Default

• Loss of the right to defend (preclusion).
• Notification of default, but no further notifications until the final judgment.
• Inclusion in a registry of people in default.
• Generally, not considered an acceptance of the claim or admission of facts.

Effects of Default

The defendant loses the right to defend. If the defendant appears later, they do not recover prior rights unless they justify the absence was involuntary. They can recover rights by alleging infringement of art. 24 CE through a procedure for rescission of judgment in default.