Libro Segundo · Título I Capítulo IV. Sustanciacion del juicio

If, upon expiration of the summons period, the defendant fails to appear, the claim shall be deemed answered in the negative and the trial shall proceed against him in default, upon request of a party.

From the moment the defendant is declared in default, an attachment may be levied upon the defendant's property, in an amount sufficient to secure the outcome of the proceedings.

Should the defendant appear after the declaration of default, the defendant may take up the proceedings at the stage at which they stand.

The declaration of default and the attachment levied may be set aside if the defendant proves failure to appear due to insurmountable force majeure.

The attachment may also be substituted by proposing other property or sufficient guarantee in the opinion of the judge. The petition shall be substantiated as an incident, in a separate record and without suspending the course of the main matter.

If the defendant submits to the claim, the judge, upon prior ratification, shall render judgment without further proceedings.

The defendant may raise the following prior defenses:

1º.Lack of jurisdiction.

2º.Lis pendens.

3º.Defective claim.

4º.Lack of legal capacity.

5º.Lack of personality.

6º.Lack of authority to represent.

7º.Failure to satisfy the time limit or condition to which the obligation or right asserted is subject.

8º.Lapse.

9º.Limitation period.

10.Res judicata

11.Settlement.

If the claimant is a foreigner or transient, the guarantee of the legal sanctions, costs, damage and losses shall also be a preliminary exception.

This exception does not apply:

1º.If the claimant proves that in the country of his nationality this guarantee is not required of Guatemalans.

2º.If the defendant is also a foreigner or transient.

The answer to the claim shall meet the same requirements as the claim pleading. If documents are to accompany it, the provisions of Articles 107 and 108 shall apply.

When answering the claim, the defendant must raise the peremptory defenses he may have against the relief sought by the plaintiff. Those arising after the Answer to the claim may be raised in any instance and shall be decided in the judgment.

Only upon answering the claim may the counterclaim be asserted, provided that the following requirements are met: that the relief asserted have a connection by reason of the object or the title with the claim and is not required to be pursued through different proceedings.

Within six days of being summoned, the defendant may assert preliminary defenses. However, at any stage of the proceedings the defendant may raise those of lis pendens, lack of legal capacity, lack of personality, lack of representative authority, res judicata, settlement, lapse and limitation period.

The procedure for the defenses shall be the same as that for incidental proceedings.

The judge shall decide all preliminary defenses in a single order.

If the defense of incompetence is among them and the judge declares it unfounded, the judge shall rule on the other preliminary defenses in the same order.

If incompetence is upheld, the judge shall refrain from deciding the remaining ones until the decision rendered on the matter of incompetence becomes final.

If the order is appealed, the superior tribunal shall rule on all preliminary defenses that were decided. If it must rule on incompetence and declares it founded, it shall refrain from ruling on the remaining ones and shall order continuation of the proceedings by the judge whom it declares competent.

The counterclaim shall be processed in accordance with the provisions for the claim.