cpii

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7. Counterclaim:

It is a claim Asserted by the defendant against the plaintiff, not only a means of defence But a counter-attack. Formulation of pleading/s by the defendant against the claimant, Which he believes are within his competence in relation to the claimant.

Contents requirements (art. 406 CPA) and (art. 407 CPA):

- Connection Between the pleadings alleged by the defendant with the initial claims asserted By the plaintiff.

- The Court Needs to have objective jurisdiction on the subject matter of the case or the Amount in controversy and of the counterclaim (art. 406.2 CPA).

- The Counterclaim is filed against the initial plaintiff (407.1 CPA).

Consequences: it Is another claim, that has been asserted in the same proceeding and it will be Discussed in the same proceeding. At the end of the proceeding there will be a judgement about the claim and the counterclaim.

Since it is a Claim itself, the counterclaim defendant (original plaintiff) shall be given a Chance to defend himself (time limit).

Counterclaim-defences: Types of allegations between the counterclaim and the claim:

Set-off of Mutual debts (compensación de deudas): this is both a defence and a Counterclaim, but more a counterclaim. It has the peculiarity that the law Doesn’t require connection between the two different facts (credits for Example). The possibility of alleging set-off is to be found in article 408.1 CPA.

Nullity of the contract: where the plaintiff has alleged that the contract exists, breach of contract And the defendant says it is a void contract. If this is the defence, the Defendant is seeking a judgement stating the contract is null, it is a pure Declaratory judgement (408.2 CPA).

8. Declaration of default and effects:

Fails to appear On the date or within the time limit stated in the summons or the order to Attend.

Requirements:

-Pendency Of proceedings: the complaint has been filed and admitted.

-Service Has been duly made on the defendant; he has been notified and has received the Copies. And if he has returned everything it means that public service of the Court has moved to the direction of the defendant. If this fails, they look for Another place to service where the defendant could be. If there is no chance to Do this, we do edicts (edicts: hang a paper on a notice board where the Court, Public notices).

-Time Limit for filing the statement of defence has elapsed.

The Court Clerk Shall declare in default the defendant who fails to appear on the date or Within the time limit stated in the summons or the order to attend.

Requirements: Pendency of proceedings, notifications have been duly made to the defendant, and Elapsing of the time limit to answer to the complaint.

Consequences:

-He Will lose his right to defend himself (statement of defence): preclusion.

-He Will be notified to be declared in default and will not be notified of anything Happening until the proceeding is finished, just notified of the final Judgement.

-Included In registry of people in default which has inconveniences.

-On General basis shall not be considered to be acceptance of the claim nor Admission of the facts of the claim.

Effects: the Defendant will lose his right to defend himself. So if the one declared shows, He doesn’t recover any rights granted prior to the declaration if he doesn’t Justify that the absence was involuntary (if he does justify he can recover Them by way of alleging infringement of art. 24 CE) *procedure for rescission Of judgement in default*.

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