Navigating Minor Claims in Cuenca: An Expert’s Guide for Expats

Moving to Cuenca is an incredible experience, but even in this idyllic setting, civil disputes can occur. Whether you have an issue with a landlord over a security deposit, a service provider who failed to deliver, or a minor contract dispute, understanding how to navigate the Ecuadorian legal system is paramount. As a legal consultant with extensive experience guiding expats through Ecuador's bureaucratic and judicial landscape, I've seen firsthand where simple mistakes can derail a valid claim. This guide provides an authoritative, compliant framework for handling minor civil claims in Cuenca.

Understanding "Small Claims" in Ecuador: The Correct Legal Framework

Ecuador does not have a "small claims court" in the North American sense. Instead, civil disputes are governed by the Código Orgánico General de Procesos (COGEP). For minor claims, the COGEP outlines two primary, expedited procedures that are faster and less complex than a full ordinary lawsuit:

1. Procedimiento Monitorio (Monetary Procedure): This is specifically designed for collecting a liquidated debt based on documentary proof (e.g., an unpaid invoice, a promissory note, or a bounced check). It is a swift process for proving someone owes you a specific amount of money.
2. Procedimiento Sumario (Summary Procedure): This procedure is used for other types of disputes where the claim amount is lower, including many common expat issues like landlord-tenant disputes (e.g., eviction, unreturned security deposits) or property damage claims.

The entire judicial system is administered by the Consejo de la Judicatura (Judicial Council), not the Ministry of Justice. Understanding which procedure applies to your situation is the critical first step.

What is the Monetary Threshold for a Minor Claim?

The threshold is defined by the Salario Básico Unificado (SBU), a national minimum wage figure set annually by the Ministerio del Trabajo. For 2024, the SBU is $460 USD.

• Procedimiento Monitorio: Applies to debts up to 50 SBU (approximately $23,000 USD). This is a powerful tool for clear-cut debt collection.
• Procedimiento Sumario: Generally applies to disputes where the claim value does not exceed 30 SBU (approximately $13,800 USD).

The Process: A Step-by-Step Tactical Guide

Initiating a claim requires precision. Any deviation from the COGEP's requirements can result in your case being rejected before it's even heard.

Step 1: Mandatory Pre-Suit Resolution

Before filing a demanda (formal lawsuit), Ecuadorian law strongly favors attempts at amicable resolution.

• Formal Written Communication: Send a letter clearly stating the facts, the amount claimed, the legal basis, and a firm deadline for payment or resolution. Do not rely on WhatsApp messages; a formal, documented communication is better evidence.
• Mediation (Highly Recommended): This is the single most effective pre-suit tool. An agreement reached at a registered Centro de Mediación results in an Acta de Mediación. This document has the legal weight of a final, unappealable court judgment (sentencia ejecutoriada).
  • Expert Tip: For a faster and more affordable process, utilize the mediation centers at local universities, such as the Centro de Mediación de la Universidad de Cuenca. They are highly respected, and their agreements are fully enforceable.

Step 2: Preparing Your Case File (La Carpeta)

Your success depends entirely on the quality and organization of your evidence. A judge will not fill in the blanks for you.

• Identification: A color copy of your current Cédula de Identidad is required. If you only have a passport, it must be accompanied by proof of your valid visa status.
• The Demanda (The Lawsuit Document): This formal document must be drafted in Spanish and meet strict legal standards. It must precisely state:
  • Your full name, Cédula number, and address for legal notifications.
  • The defendant's (demandado) full name and last known address.
  • A clear narration of the facts (los fundamentos de hecho).
  • The specific articles of law supporting your claim (los fundamentos de derecho).
  • The exact relief you are seeking (e.g., "the payment of $1,500 for the unreturned security deposit plus interest and legal fees").
  • A complete list of all evidence you will present.
• Crucial Evidence:
  • Contracts: The signed lease (contrato de arrendamiento), service agreement, etc.
  • Proof of Payment: Never pay rent or significant amounts in cash without getting a signed recibo (receipt) or, better yet, use a transferencia bancaria (bank transfer). Bank transfers create an unimpeachable digital record that is powerful evidence. This is the most common mistake expats make, leaving them with no proof of payment in a dispute.
  • Photographs/Videos: Time-stamped photos of property conditions before and after, or of damaged goods.
  • Witnesses: A list of potential witnesses with their full names and addresses.
  • Formal Correspondence: Copies of emails and letters.

Step 3: Filing the Demanda at the Correct Location

The lawsuit is filed at the main courthouse in Cuenca.

• Location: The Complejo Judicial de Cuenca on Avenida Peralta.
• Critical First Step: You do not go directly to a judge's office. You must first submit your demanda and evidence packet at the Oficina de Sorteos (Case Assignment Office). Here, the system will randomly assign your case to a specific Civil Judge (Juez de lo Civil), ensuring impartiality. You will receive a case number.
• Filing Fees: While the initial court fee (tasa judicial) is often minimal, you must budget for the cost of the official notification (citación). This typically costs between $20 and $60, depending on the location of the defendant.

Step 4: The Citación (Official Notification of the Defendant)

The defendant must be officially served notice of the lawsuit by a court-authorized official (citador). You cannot do this yourself.

• The Process: Once the judge accepts your lawsuit for processing, they will order the citación. The court's process server will attempt to deliver the documents in person.
• Defendant's Response: After being served, the defendant has a specific timeframe to respond, outlined in the COGEP. For a Procedimiento Sumario, this is typically 15 days. For a Procedimiento Monitorio, it can be shorter.

Step 5: The Hearing (Audiencia) and Evidence

If the defendant contests the claim, a single hearing (audiencia única) is scheduled.

• Conciliation: The first action the judge will take is to attempt to mediate a settlement between the parties.
• Evidence Presentation: If no settlement is reached, both parties will formally present their evidence and arguments. Witnesses will be sworn in and questioned. Your meticulous preparation in Step 2 is what wins cases at this stage.

Step 6: The Judgment (Sentencia)

After the hearing, the judge will issue a written decision.

• Enforcement: If you win and the defendant does not pay voluntarily, you must initiate a separate enforcement proceeding (procedimiento de ejecución). This is not automatic and may require further legal action to seize assets or garnish wages.

Legal Checklist for Cuenca Expats

• [ ] Valid ID: Cédula or passport with valid visa is ready.
• [ ] Attempted Mediation: Have proof of your attempts to resolve the issue amicably, preferably an Acta de Mediación or formal letter.
• [ ] Evidence Organized: All contracts, bank transfers/receipts, photos, and communications are compiled.
• [ ] Demanda Drafted: The lawsuit document is prepared in Spanish, meeting all COGEP requirements.
• [ ] Accurate Defendant Info: You have the defendant's full legal name and physical address for the citación.
• [ ] Correct Procedure Identified: You know whether your case falls under Procedimiento Monitorio or Sumario.
• [ ] Budget for Fees: Funds are set aside for filing and the crucial citación cost.
• [ ] Legal Counsel Considered: You have identified a qualified attorney for consultation.

⚠️ Legal Alert: When to Immediately Consult an Attorney

This guide empowers you with knowledge, but it is not a substitute for legal advice. Immediately retain an Ecuadorian attorney if:

• The Claim Exceeds the SBU Threshold: This requires a full procedimiento ordinario, which is far more complex.
• You Receive a Counterclaim (Reconvención): If the defendant sues you back.
• The Case Involves Complex Law: Issues involving real estate titles, inheritance, or complex contractual interpretation require a specialist.
• You Are Not Fluent in Legal Spanish: Court proceedings are formal and fast-paced. Misunderstanding a judge's question can be catastrophic for your case.
• The Defendant Has a Lawyer: You will be at a significant disadvantage without your own legal representation.
• You Need to Enforce a Judgment: The collections process is a legal specialty in itself.

Navigating the Ecuadorian judicial system requires diligence and a strict adherence to procedure. By following these steps and preparing meticulously, you can effectively advocate for your rights.