In an executory commercial lawsuit, the plaintiff requested, as a provisional remedy, a restraining order that would prohibit the defendant from leaving the court's jurisdiction. The judge declared the request inadmissible since the court determined that there was insufficient evidence to prove that the defendant had intended to hide or be absent from court proceedings.
The Third Collegiate Court of the Fourth Circuit analysed the challenge filed by the plaintiff against the court's aforementioned resolution. This resulted in the issuance of jurisprudential thesis IV.3o.C.25 C (10a), which established that once a judicial proceeding is initiated, only the plaintiff's arguments, corroborated with the evidence of the case as presented to the court, will be considered sufficient evidence to prove that the defendant is absent or hiding, for the purposes of issuing a restraining order against the defendant as a provisional remedy.
This ruling derives from a systematic interpretation of the provisional remedy chapter of the Commercial Code, from which it is clear that a restraining order against a defendant may be requested in two specific procedural contexts:
- as a prejudicial act, prior to the commencement of the trial; or
- once the lawsuit has been filed.
In the first scenario, the burden is on the plaintiff to demonstrate by means of suitable evidence that there is a well-founded fear of the absence or concealment of the person against whom the action is to be brought.
For the second case, the courts will have established that direct evidence is not required, since it is considered that the arguments presented by the interested party expressing a reasonable fear that the defendant intends to be absent or hide, based on the procedural evidence, is sufficient proof for the judge to determine if a restraining order against the defendant is to be granted or denied.
Through the evidence presented before the court in a commercial proceeding the judge can determine:
- the amount of the claim;
- the existence, if applicable, of guarantees; and
- any evidence that reveals whether the defendant has been successfully summoned to the trial or whether it has been impossible to do so.
This criterion contributes to resolving the procedural practices that have been adopted by Mexico that allow debtors to hide or be absent from proceedings. However, it also makes adopting provisional remedies near impossible due to the lack of evidentiary means to prove their necessity.
For further information on this topic please contact Alejandro Legaspi Lanz or Diego Velázquez Lavín at Martínez Algaba de Haro y Curiel by telephone (+52 55 5258 0202) or email ([email protected] or [email protected]). The Martínez Algaba de Haro y Curiel website can be accessed at www.mah.com.mx.