We continue with our Civil Procedure Reform Observatory. In previous chapters, we reviewed the requirements for filing a complaint, mandatory pre-trial mediation, and service of the complaint. Now we move on to the next step: the defendant’s response to the complaint.

Once served with the summons, what can the defendant do? And what happens if the defendant does nothing?

Article 264: Contempt of Court

The text approved by the Chamber of Deputies in 2014 regulates this matter in a special chapter titled “On the Defendant’s Conduct in Response to the Complaint.” Before listing these attitudes, Article 264 addresses default. If the defendant, having been duly summoned, fails to appear within the applicable time limit, the court shall deem the answer to the complaint to have been filed, and the proceedings shall continue. Furthermore, a defendant in default may appear at any stage of the proceedings, with the proceedings already conducted being upheld.

Article 265: A Map of Possible Reactions

Article 265 of the 2014 Chamber text lists the courses of action available to the defendant: to admit the complaint in whole or in part, to raise preliminary objections, to answer the complaint, and, if applicable, to file a counterclaim. If the defendant chooses more than one of these courses of action, they must do so in the same pleading, formulating their requests on an alternative basis if they are incompatible.

Article 266: Consent to the Claim

According to Article 266 of the 2014 Chamber Act, the defendant may concede to the complaint in his or her answer or subsequently, at the preliminary hearing. The admission may be total or partial. In the event of a total admission, or when there is no dispute regarding the substantial and relevant facts asserted by the plaintiff, the court must render a final judgment upon conclusion of the preliminary hearing, without the need for evidence or any other proceedings.

Article 267: Preliminary Objections

Article 267 of the 2014 Chamber text lists twelve preliminary exceptions that the defendant may raise: lack of jurisdiction or incompetence of the court; lis pendens; invalidity of the complaint due to failure to meet requirements; incapacity of the plaintiff or lack of legal standing or representation; failure to form a necessary, active, or passive joinder; statute of limitations on the action; expiration of the right; res judicata; manifest lack of standing or interest; actual payment of the debt; right of set-off; and any other defect that could affect the existence, validity, or effectiveness of the proceeding.

Answer and Counterclaim

The defendant may also file an answer to the complaint, setting forth his or her defenses against the plaintiff’s claim, and, if applicable, file a counterclaim, asserting a claim of his or her own against the plaintiff. The counterclaim must be filed in writing along with the answer and must meet the same requirements and content standards established for the complaint.

Some well-known alternatives, now listed in order

Today we are also familiar with these alternatives: failure to appear, admission of the facts, motions to stay proceedings, answer, and counterclaim. The difference is that the bill presents them as an explicit roadmap of the defendant’s positions regarding the complaint, rather than simply as “answering or not answering.” Furthermore, it expands and organizes the preliminary objections, which no longer correspond exactly to the traditional list of dilatory exceptions in the Code of Civil Procedure.

In summary: Once served with the complaint, the defendant faces a series of procedural decisions. The defendant may choose not to appear, accept the complaint, raise preliminary objections, file an answer, and, eventually, file a counterclaim. Each of these decisions can affect the subsequent course of the trial. In the next few installments, we will examine preliminary objections and the answer to the complaint in greater detail.

* This is a bill currently under consideration, so its content may change before its final publication. The articles cited correspond to the text approved by the Chamber of Deputies in 2014, subject to any changes in numbering resulting from subsequent amendments.