Libro Tercero Título I. Via de apremio

Enforcement by way of compulsion shall proceed when requested by virtue of the following instruments, provided they entail the obligation to pay a sum of money, liquidated and enforceable:

1º.Judgment that has acquired the authority of res judicata.

2º.Arbitral award not subject to a pending appeal in cassation.

3º.Mortgage credits.

4º.Mortgage bonds or mortgage certificates and their coupons.

5º.Pledge credits.

6º.Settlement executed in a public deed.

7º.Agreement concluded in the trial.

The petition for execution of a judgment or arbitral awards may be made in the same case file or by presenting certification of the ruling, at the election of the executing party.

In these cases, only defenses arising after the judgment or the award whose execution is requested shall be admitted, which shall be raised within the third day after notification of the execution.

The titles set forth above lose their executory force after five years, if the obligation is simple; and after ten years if there is a pledge or mortgage. In both cases, the term shall be counted from the expiry of the time limit, or from fulfillment of the condition, if any.

Only defenses that destroy the effectiveness of the title and are based on documentary evidence shall be admitted, provided they are filed within the third day after the debtor is required or notified. The defenses shall be resolved by the procedure for incidents.

Once the enforcement proceedings have been commenced, the judge shall examine the title on which it is based, and if the judge considers it sufficient, shall issue a writ of execution, ordering the demand upon the obligor and the attachment of property, where applicable.

Neither the demand nor the attachment shall be necessary if the obligation is secured by pledge or mortgage. In such cases, it shall be ordered that notice of the execution be given, setting a day and time for the auction sale in accordance with Article 313.

In any event, the interim protective measures provided for in this Code may be requested.

The judge shall appoint a notary, if requested by the execution creditor, or one of the employees of the Trial Court, to make the demand for payment and attachment or seizure, as applicable.

The enforcement officer shall demand payment from the debtor, which he shall record by notation placed following the writ. If payment is not made forthwith, the enforcement officer shall proceed to levy the attachment.

Once the writ of execution has been issued, if the debtor cannot be found, the demand for payment and attachment shall be effected by cédula, applying the rules relating to notifications.

If the whereabouts of the debtor are unknown and he has no known domicile, the demand for payment and attachment shall be effected through the Official Gazette and shall take effect from the day following publication. In this case, the provisions of the Civil Code regarding absent persons shall also be observed.

If the defendant pays the amount claimed and the costs incurred, it shall be recorded in the record, the amount paid shall be delivered to the enforcement creditor and the procedure shall be terminated.

Likewise, the debtor may have the attachment lifted by depositing within the same proceedings the amount claimed, plus ten percent for assessment of costs, reserving the right to oppose the enforcement. The foregoing is understood without prejudice that if the amount deposited is not sufficient to cover the principal debt, interest and costs, according to assessment, attachment shall be levied for the amount lacking.

The creditor has the right to designate the property in which the attachment is to be carried out, but the enforcement officer shall attach only such property as, in his judgment, is sufficient to cover the sum for which the attachment was ordered plus ten percent for assessment of costs.

When a credit belonging to the debtor is attached, the executing party is authorized to perform, judicially or extrajudicially, the acts necessary to prevent prejudice to the attached credit, provided there is omission or negligence on the part of the debtor.

The attachment entails the prohibition on alienating the attached thing. If this prohibition were violated, the attaching party has the right to pursue it from any possessor, unless the holder thereof opts to pay the creditor the amount of the creditor's claim, expenses and costs provided by law.

If the attached credit is secured with pledge, the person holding the thing given in pledge shall be ordered not to carry out the return of the thing without an order of the judge.

If the attached credit is secured with mortgage, the act of attachment must be recorded in the Register of Immovable Property.

From the day on which the attachment is notified to him, the debtor of the judgment debtor shall have the obligations and responsibilities that the law imposes on depositaries, with respect to the things and sums owed by him, and he may not pay the judgment debtor, under penalty of his obligation being deemed not extinguished, if he does so.

The enforcement officer shall appoint as depositary of the attached property the person designated by the creditor, describing the property as exactly as possible, subject to the preparation of a formal inventory, if applicable. Only in the absence of another person with established roots may the creditor be appointed depositary of the attached property.

When the property has been subject to a prior attachment, the first depositary shall be such with respect to all subsequent attachments, unless the proceedings are bank enforcement proceedings. In such case, the enforcement officer shall notify the first depositary of the new attachment, for purposes of the deposit.

The deposit of money, jewelry and negotiable securities shall be made in a banking institution; and where there are no banks or branches, with a person of recognized honesty and responsibility.

The following property may not be subject to attachment:

1º.The ejidos of the towns and the parcels granted by the public administration to private individuals, if the grant prohibits it.

2º.Sums owed to contractors of public works, with the exception of claims by the workers on the work or by those who have supplied materials for it; but the sum payable to the contractor after completion of the work may be attached.

3º.The entirety of wages or salaries and of fees, except as to the percentages authorized by special laws and, in the absence thereof, by the Labor Code.

4º.Present and future maintenance pensions.

5º.The furniture and clothing of the debtor and of his family, if they are not superfluous or luxury objects, in the opinion of the judge; nor the provisions for subsistence for one month.

6º.The books, tools and instruments necessary for the exercise of the profession, art or trade to which the debtor is dedicated.

7º.Rights whose exercise is merely personal, such as those of use, habitation and usufruct, but not the fruits thereof.

8º.Pensions, montepíos or retirement pensions of less than one hundred quetzales per month granted by the State and pensions or indemnities in favor of disabled persons.

9º.Rights arising from life insurance, or from injury and accidents to persons.

10.Tombs or mausoleums.

11.Property exempted by special laws.

12.Merchant vessels, except for the exceptions established by law.

For cases in which it is applicable, the property referred to in the preceding items may be attached when the execution derives from the acquisition thereof.

The attachment of salaries or pensions shall be effected by sending an official communication to the public official or person who must pay them, in order to withhold the corresponding portion. If the judgment debtor moves to another position during the attachment, it shall be understood that the attachment shall continue over the new salary.

Every attachment of immovable property or real rights shall be annotated in the respective Immovable Property Register, for which purpose the judge shall, on its own initiative, issue the corresponding writ.

The creditor may request enlargement of the attachment when the attached property is insufficient to cover the claimed credit and accessory claims or when a third-party claim is asserted over such property.

The enlargement of the attachment shall be ordered at the discretion of the judge, without a hearing of the debtor.

At the request of the debtor, or even on its own initiative, when the value of the attached property is greater than the amount of the claims and costs, the judge, after hearing the parties for two days, may order the reduction of the attachment, without this hindering the course of the execution.

When the attachment proves burdensome for the judgment debtor, the judgment debtor may, before the sale at public auction is ordered, request substitution of the attachment with different property sufficient to cover the amount of principal, interest and costs.

This petition shall be processed by way of an incidental proceeding and in a separate record, without interruption of the course of the execution.

Once the attachment has been effected, the appraisal of the attached property shall proceed. This proceeding shall be carried out by experts appointed by the judge, who shall designate only one, if possible, or several if property of different kinds or in different places is to be valued.

The appraisal shall be omitted whenever the parties have agreed on the price to serve as the basis for the auction. When immovable property is involved, the amount of the debt or the value fixed in the fiscal registry for payment of the territorial tax may serve as the basis, at the plaintiff's election.

Once the appraisal has been made or the basis for the auction has been fixed, the sale of the attached property shall be ordered, announced at least three times in the Official Gazette and in another newspaper of widest circulation. In addition, the sale shall be announced by edicts posted on the notice boards of the Tribunal and, if applicable, in the Minor Trial Court of the town to which the property being auctioned corresponds, for a term of not less than fifteen days.

The term for the auction shall be at least fifteen days and not more than thirty days.

The notices shall contain a detailed description of the property or properties to be sold, of their extent, boundaries and crops, the department and municipality where they are situated; the encumbrances thereon, the data of their inscriptions in the Property Register, the name and address of the estate, the name of the executing party, the base price of the auction, the day and time set for the same, the list of mortgage and pledge creditors if there be any, the amount of their credits, and the judge before whom the auction is to be held. The name of the executed party shall be omitted.

On the appointed day and time, the crier of the Trial Court shall announce the auction and the bids as they are made, of which the clerk shall take note. When there are no further bids, the judge shall examine them and close the auction, declaring it awarded to the highest bidder, and shall make it known through the crier. A record of all of this shall be drawn up, which shall be signed by the judge, the clerk, the successful bidder and the interested parties who are present and their attorneys.

Only bidders who at the time of the auction deposit ten percent of the value of their offers shall be admitted, unless the enforcing party releases them from this obligation. If several items of property are being auctioned, bids made separately for each of them shall be admissible.

Once the auction has been awarded to the highest bidder, the deposits they have made shall be returned to the others.

The bidder and the enforcing party may agree at the time of the auction on the conditions relating to the form of payment.

During the auction sale and before it is awarded, the right of preference for the same price may be exercised, in the following order: the co-owners, the mortgage creditors, according to their ranks, and the executing party.

The auction bidder is obligated to comply with the conditions he undertook at the auction sale, and if he fails to do so, he shall forfeit, in favor of the enforcing party and as a credit against the obligation being enforced, the deposit he made to guarantee his bid and shall, in addition, remain liable for the damage and losses he causes.

If on the day designated for the auction sale there are no bidders at seventy percent, a new hearing for the auction shall be designated on the basis of sixty percent, and it shall so continue, decreasing by ten percent each time.

If it should occur that not even at ten percent there has been a purchaser, a final designation shall be made, and the best bid submitted shall then be admissible, whatever it may be.

In any case, the executing party has the right to request that the property subject to the auction sale be adjudicated to it in payment for the base fixed for the latter, and it must pay the difference if there is any.

Once the auction sale has been carried out, a liquidation of the debt with its interest and assessment of the costs incurred by the enforcing party shall be made, and the judge shall issue an order chargeable to the successful bidder, in accordance with the terms of the auction sale.

Judicial expenses and those of deposit, administration and intervention, and any others arising from the executive procedure, shall be borne by the debtor and shall be paid with preference from the price of the auction sale, provided they were necessary or were carried out with judicial authorization.

If the attachment has been levied on cash or bank deposits, once the order approving the liquidation is final, the judge shall order payment to be made to the creditor.

If there is any surplus after paying the existing encumbrances in their order, it shall be delivered to the judgment debtor upon prior judicial order.

The debtor or the owner of the auctioned property, as applicable, have the right to save them from the sale, while the deed translative of ownership has not been executed, by paying in full the amount of the settlement approved by the judge.

In the order approving the liquidation, the judge shall set for the successful bidder a period of not more than eight days to deposit the corresponding balance in the Treasury of Justice Funds.

If the successful bidder fails to comply, proceedings shall be in accordance with the provisions of Article 317 and a new day and time shall be set for the auction sale.

Once the corresponding requirements have been met, the judge shall set for the judgment debtor a term of three days to execute the deed transferring ownership. In case of default, the judge shall execute it on its own initiative, appointing for that purpose the notary designated by the interested party, at the latter's expense.

The record of the auction sale and the order approving the liquidation shall be transcribed in the deed.

An appeal may only be filed against the order that does not admit the enforcement proceedings and against the order that approves the liquidation.

Once the deed has been executed, the judge shall order that possession of the property be given to the successful bidder or adjudicatee. For such purpose, he shall set the judgment debtor a period not exceeding ten days, under warning of ordering eviction or seizure, as applicable, at his expense.