Navigating Small Claims in Ecuador: A Practical Guide for Expats

The Ecuadorian legal system, governed primarily by the Código Orgánico General de Procesos (COGEP), has streamlined civil litigation significantly. For smaller monetary disputes, it offers highly effective tools, but success hinges on understanding the correct procedure and the critical importance of documentation.

Understanding Ecuador's "Small Claims" Procedures

Ecuador does not have a separate "Small Claims Court." Instead, claims are handled within the Unidades Judiciales de lo Civil (Civil Judicial Units) using specific, accelerated procedures defined by the COGEP. The two most relevant for expats are:

El Proceso Monitorio (The Monetary Process): This is a powerful, fast-track procedure designed exclusively for recovering specific monetary debts. As established in Artículo 356 del COGEP, this process is applicable when the debt is proven by a document—such as an invoice, promissory note (pagaré), rental agreement showing unpaid rent, or even a clear set of electronic communications—that suggests the existence of the debt. There is no upper monetary limit, making it incredibly versatile.
El Procedimiento Sumario (The Summary Procedure): This expedited process is used for specific types of disputes outlined in Artículo 332 del COGEP, regardless of the amount. For expats, the most common application is for landlord-tenant disputes, such as the eviction of a tenant for non-payment or the resolution of conflicts over a security deposit.

For other general disputes not falling into these categories, the claim amount determines the procedure. Claims valued up to fifty Salarios Básicos Unificados (SBU) are handled via the Procedimiento Sumario. The SBU is the official minimum monthly wage, set at $460 for 2024, meaning this covers disputes up to $23,000.

Common Scenarios for Expats

Unpaid Services/Loans: You provided freelance services, sold goods, or loaned money, and the other party has failed to pay. This is a classic case for the Proceso Monitorio.
Landlord Disputes: Your landlord refuses to return your security deposit (garantía) without justification, or a tenant has failed to pay rent. These fall under the Procedimiento Sumario.
Breach of Minor Contracts: A contractor failed to complete a small renovation project as agreed upon. This would likely be a Proceso Monitorio if for a specific sum, or a Procedimiento Sumario if for performance.

Step-by-Step Guide to Filing a Claim

The process requires precision. Errors can lead to your case being dismissed before it's even heard.

Step 1: Meticulous Evidence Gathering

This is the cornerstone of your case. Ecuadorian judges rely heavily on documentary proof. Do not proceed without it.

Contracts & Agreements: All written contracts (contratos), leases (contratos de arrendamiento), or promissory notes (pagarés) are crucial.
Proof of Debt: Invoices (facturas), receipts (recibos), bank transfer confirmations, or signed ledgers.
Correspondence: While WhatsApp messages are admissible, judges often view them as weak evidence unless their authenticity can be proven. A common mistake is simply submitting screenshots. For a stronger case, your lawyer may recommend a diligencia preparatoria, a pre-trial motion where a notary or court official formally certifies the content of the chat directly from the device. This gives it significant legal weight.
Identification: A clear copy of your passport and visa, or preferably your Ecuadorian cédula.
Defendant Information: The full, correct legal name and address of the defendant. For a company, you must obtain a Certificado de Existencia Legal from the Superintendencia de Compañías, Valores y Seguros to ensure you are suing the correct legal entity and its representative.

Step 2: Drafting the Formal Claim (Demanda)

This legal document, written entirely in Spanish, initiates the lawsuit. As per Artículo 142 del COGEP, it must be drafted by a licensed attorney and include:

The designated judge and court.
Your full details and your lawyer’s professional credentials (including their casillero judicial electrónico, or electronic judicial mailbox).
The defendant's details.
A clear narration of the facts (los fundamentos de hecho).
The legal basis for your claim (los fundamentos de derecho).
Your specific request (la pretensión), e.g., "I request the judge order the defendant to pay me $5,000."
A list of all evidence you will present.

Step 3: Filing the Demanda at the Courthouse

Your lawyer will file the demanda at the appropriate courthouse, for example, the Complejo Judicial de Cuenca on Avenida José Peralta.

At the intake window (Ventanilla de Ingreso de Causas), you must submit sufficient copies of the demanda and all attachments—one for the court file and one for each defendant. A frequent expat oversight is not bringing enough copies, causing delays. While major court filing fees (tasas judiciales) have been eliminated for most civil cases to improve access to justice, you still have to pay for the physical service of process.

Step 4: Service of Process (Citación)

The court must formally notify the defendant of the lawsuit. A court official (citador) physically delivers the paperwork.

The citación is not free. You or your lawyer must coordinate with the assigned citador and pay their fee directly, which is typically $10 to $20 per defendant within the urban area of a city like Cuenca. This is a separate, out-of-pocket expense that often surprises foreigners. Proper service is non-negotiable for the case to proceed.

Step 5: The Defendant's Response and the Hearing

For a Proceso Monitorio: The defendant has 15 business days to either pay the debt or file a formal opposition. If they do neither, the judge issues an immediate order for payment, which is equivalent to a final judgment. If they object, the case moves to a Procedimiento Sumario hearing.
For a Procedimiento Sumario: The defendant has 15 business days to file a response (contestación a la demanda). Afterward, the judge will schedule a single hearing (audiencia única) where both sides present evidence, arguments are heard, and the judge typically issues a ruling.

Step 6: The Judgment (Sentencia) and Enforcement

If the judge rules in your favor, they issue a sentencia. If the defendant fails to comply voluntarily, your lawyer must initiate enforcement proceedings (ejecución), which can include court-ordered seizure of bank accounts or assets.

Common Expat Pitfalls to Avoid

Relying on Verbal Agreements: Without written proof, your case is exceptionally difficult to win.
Using Unqualified Facilitators: Many "facilitators" offer legal help but are not licensed attorneys. Filing a demanda requires a lawyer's signature. Using an unqualified person can get your case dismissed and jeopardize your legal standing.
Misunderstanding Timelines: Ecuadorian court deadlines are strict and calculated in "business days" (días hábiles). Missing one can be fatal to your case.
Incorrect Defendant Information: Suing "John Smith" when the legal name on his cédula is "John David Smith Gonzalez" will cause the service of process to fail. Precision is paramount.

Legal Checklist for Cuenca Expats

[ ] Is your claim for a specific debt supported by a document? (Consider Proceso Monitorio)
[ ] Does your claim involve a landlord/tenant issue? (Consider Procedimiento Sumario)
[ ] Have you organized all contracts, invoices, and bank transfer records?
[ ] Have you formally preserved crucial digital evidence (e.g., WhatsApp chats)?
[ ] Have you verified the defendant's full legal name and current address?
[ ] Have you engaged a licensed Ecuadorian attorney?

⚠️ Legal Alert: When to Consult an Attorney Immediately

While this guide provides a roadmap, it is not a substitute for legal advice. Do not attempt to self-represent. You should consult an attorney if:

You have a verbal agreement: An attorney can advise if any supporting evidence makes a case viable.
The evidence is ambiguous or incomplete.
The defendant is a government entity or a large, well-funded corporation.
You have been served with a lawsuit yourself. Time is of the essence to prepare a defense.
The dispute involves real estate titles, inheritance, or complex business matters. These are not "small claims."

In these situations, professional counsel is not just recommended; it is essential to protect your rights and investment.

Conclusion

Successfully resolving a small claim in Ecuador is entirely achievable for expats who approach it with diligence and the right professional support. By understanding the specific procedures like the Proceso Monitorio and Procedimiento Sumario, meticulously preparing your evidence, and adhering to the formal requirements of the COGEP, you can effectively defend your interests within the Ecuadorian legal framework.