There can be nothing more frustrating for a person than being evicted from their home by a court order—if there is one—of which they are unaware of the exact origin. Suddenly, judicial officials, flanked by police, porters, and even locksmiths, remove them from their home. And although it may seem like something out of a movie, this is unfortunately common in Mexico.
But is the eviction legal? Is there any remedy to stop or repair it? I intend to answer these and other questions in this post, especially because someone must provide truthful information to a citizenry and foreigners that is increasingly falling victim to real estate agencies that, more than businesses, resemble mafias due to the criminal practices they carry out to deprive hundreds of families of perhaps their only asset: their home.
And, despite this despicable practice, the truth is that there is a constitutional remedy to combat illegal eviction from a property: the indirect amparo proceeding. Therefore, this is a topic I will address in this post in the context of defending the right of possession over real estate. I’m not developing this post from a theoretical perspective, but rather from a practical perspective, as only a practicing attorney can do through years of experience. This experience will be reflected in the references, formats, and information I share here.
Without further ado, let’s begin:
List of Contents
- Translation
- 1) A Legal Eviction or a Crime
- 2) Why Is the Service of Summons So Important in Mexico?
- A) Formalities of The Service of Summons in Mexico
- B) Service of Summons Formalities in the National Code of Civil and Family Procedure
- C) Service of Summons By Publications
- D) Substitution of the Complaint
- 3) Determining Who Claims Constitutional Amparo and Protection
- A) Third Party Not Present At Trial and Its Effects on The Amparo Judgment
- B) Third Party By Equivalence and Its Effects On The Amparo
- 4) The Amparo Trial and Its Structure
Translation
This entry is a translation of my post Amparo indirecto contra un ilegal emplazamiento.
1) A Legal Eviction or a Crime
To determine the appropriate remedy for an eviction, one must first consider whether it is legal or not. This is not done from a rigid perspective, in the sense of whether the procedural formalities for its authorization were followed, but rather from a more basic perspective: whether there is actually a judicial or administrative procedure behind it.
This is important because the Mexican constitution stipulates in Article 17 that no person can take justice into their own hands. That is, even when it is considered that there is a right to recover a property, a judicial procedure must be followed for this purpose. Or, in the area of administrative law, when an attempt is made to undermine the right of ownership and possession of said property, at least the justification and motivation for the intervention in the property must be provided.
Knowing the above, it is then necessary to determine whether the eviction from the property is the result of a court order, an administrative resolution, or a simple criminal act in which the State did not participate directly or indirectly, but rather by private individuals who took «justice» into their own hands. In the latter scenario, it is easier to determine what actions to take, and it is advisable to opt for criminal proceedings for the crime of dispossession and, at the same time, to exercise the right to recover property (which I discussed in the entry How to Get Back an Invaded Property in Mexico).
However, regarding the first scenario, that is, when the eviction has been carried out under the protection of a judicial or administrative procedure, no matter how deficient it may be, it is more difficult to prove its irregularity. However, even in the face of this difficulty, it is necessary for the person dispossessed of the property to know what they can do, with indirect amparo proceeding often being the most effective legal remedy.
2) Why Is the Service of Summons So Important in Mexico?
Once you have determined that the act by which you were dispossessed of your property has at least an appearance of legality, having been accompanied by a written order in which you could read that it bore official seals, the signatures of a judge and a secretary, and in which the actuario identified himself to you, it is now necessary to understand why, despite the apparent legality of the eviction process, you were unaware of the process by which your eviction was ordered, and whether, based on that ignorance, you can still defend yourself.
For these purposes, you must first understand that the act by which you should have learned of the lawsuit filed against you, and which, ultimately due to its errors or omissions, culminated in your eviction, is called a summons. In this sense, by summons we must understand the procedural act by which a judicial official (actuario) informs the defendant that there is a lawsuit filed against them. They also certify that they have provided the defendant with the details of said lawsuit (case number, court before which it is being processed, etc.); they have provided them with simple copies of everything recorded in the lawsuit (complaint, judicial proceedings taken to date, etc.), and they are informed that they have a certain number of business days to respond to the lawsuit—which, according to Article 239 of the National Code of Civil and Family Procedure, is 15 business days—, among other things.
On the other hand, the fact that a lawsuit is disputing possession or a real right over real property means that the competent judge for such purposes is, as a general rule, a civil judge of the common jurisdiction, in accordance with the provisions of Articles 104, Section V, and 124 of the Political Constitution of the United Mexican States. Hence, it is through civil trials that proceedings related to the recovery of possession of a property, the declaration of ownership, etc., are conducted.
So, once we are aware that the trial is of a civil nature where disputes over possession and property rights are processed, and that the defendant is informed of these disputes through the form of summons, it is now important to explain why this summons has formalities that must be followed for it to be considered legal, and also to understand where they arise.
In this sense, in accordance with the fundamental right known in Mexico as the «right to be heard,» which is enshrined in Article 14, paragraph 2, of the Political Constitution of the United Mexican States, any person who is sought to be deprived of their rights (to understand the difference between acts of deprivation and acts of nuisance, see the binding precedent: ACTS OF DEPRIVATION AND ACTS OF NUISANCE. ORIGIN AND EFFECTS OF THE DISTINCTION), such as the right to possession or ownership of real estate, must be summoned to trial so that they have the opportunity to present their case. Failure to do so would result in their being deprived of their rights without having the opportunity to oppose or contribute to the disclosure of the legal truth in court.
In this sense, this summons to trial must comply with certain formalities to ensure that the defendant was truly aware of the lawsuit brought against them and, therefore, that they had a real opportunity to defend themselves in a timely and proper manner before the courts. Therefore, if these formalities are violated, it is presumed that the defendant was not fully aware of being summoned to trial, hence, it is presumed that this affected his right to defend himself against the benefits claimed, thereby violating his right to be heard in court. To illustrate the above, see the following binding precedent that explains the importance of this right in the summons: HEARING, HOW THIS GUARANTEE IS INTEGRATED.
A) Formalities of The Service of Summons in Mexico
Now that it is clear that the legislator intends, through regulating formalities in the service of summons, to provide the defendant with reliable and real notice that a lawsuit has been filed against them so that they can defend themselves within a specified period of time, it is necessary to explain what these formalities are, since their violation will be the spur to our defense before the federal courts in the indirect amparo proceeding and, therefore, the substantive arguments on which lawyers must present that their violation transcended a violation of the fundamental right to be heard in court.
However, this task is not simple since Mexico currently has 32 states (including Mexico City) with their own code of civil procedure, as well as the Federal Code of Civil Procedure and the National Code of Civil and Family Procedure, which regulate various formalities. Therefore, for now, it will depend on the state where the litigation is being conducted to assess which formalities should have been followed in the summons.
That’s why, depending on the state, litigating attorneys will have to adapt to the formalities that the summons must comply with and enforce them in the amparo proceeding. These include ensuring that the copies of the service are numbered and stamped on both sides; that the recipient of the notification is identified in detail; that they are expressly required to respond to the complaint on certain business days; that they are somehow attested to the intended address, among others.
For this reason, such formalities in different federative entities give rise to binding precedents that may well be applicable to one federative entity, but not to another or others. By way of example, see the following criteria:
B) Service of Summons Formalities in the National Code of Civil and Family Procedure
Notwithstanding the multiplicity of formalities and circumstances arising from the accumulation of civil procedure codes that regulate service of summons formalities in each state in Mexico, even though the National Code of Civil and Family Procedure has not yet entered into force, we already have legislation that will standardize the formalities for the entire country by which persons involved in lawsuits involving property or possession must be served. These formalities are regulated in Articles 194 and 216 of the aforementioned code and are most notably the following:
1.- Service of summons must be made at the address provided by the plaintiff, which must be the place where the defendant lives, works, or resides. In the case of a legal entity (company, organization, etc.), the service of summons must be carried out at its registered office, offices, branches, or principal place of business.
2.- The attorney must ensure that the address designated in the complaint is present by unequivocal means (because the address matches or there are unequivocal signs indicating the address is present). Photographs may be taken, which will be added to the service of process and the minutes drawn up.
3.- Service of summons must be conducted with the person to whom the summons is addressed, that is, the defendant. If the defendant is not present, the person who responded to the summons must be described with their specific characteristics, and their identification information may be added if desired.
4.- In principle, the court clerk will identify himself or herself to the person attending the service, requesting that person to identify themselves in turn, recording the result as well as the means by which they verified their presence at the address sought. They may request the production of documents that prove this, specifying them if presented, as well as any external signs of the property that may serve as proof of having gone to the address indicated as that of the person sought, and any other statements made by the person to whom the summons is addressed regarding their employment, family, residential business, or any other relationship with the interested party.
5.- Once the person making the request is present, the actuario must prepare a report in which he or she will record: I. The date and time of the service; II. The type of procedure involved; III. The names of the parties, indicating, where applicable, the name or business name; IV. The jurisdictional authority ordering the defendant to be served (court identification); V. Transcription of the order to be served; and VI. Finally, the name of the person to whom it is served, and may request their signature for such purposes.
6.- In the event that the actuario verifies that the defendant is at the requested address, but the defendant is not present, nor is any person who could legally receive service, or if the defendant refuses to accept it, then he will post a summons in a visible place at the address, stating: I.- The reason for the service; II.- The date, time, and place of the service; III.- The date and time of the day for which the defendant is expected, which in no case may be less than twenty-four hours nor exceed forty-eight hours, counted from the day the summons was served; IV.- Name of the person filing the service; V.- the judicial authority ordering the proceeding; V.- the determination to be notified; and VI.- the warning that if the person sought or the recipient of the judicial proceedings is not found on the date set for the service of summons, the following rules shall apply:
I.- In the second proceeding, and despite the previously attached summons, if the defendant is once again absent and there is no one to attend the proceedings, then service by adhesion will be carried out. This will consist of the actuario affixing the service notices with the corresponding copies of the claim, as well as the instructions explaining the reason for the service by adhesion, in a visible place at the address. This notice will have the characteristics of the usual service notice.
II.- On the other hand, when access to the house, premises, or office where the service has been ordered is restricted due to being located within commercial negotiations, establishments open to the public, private clubs, housing units, subdivisions, condominiums, neighborhoods, or any other similar place; the actuario will request entry from whoever is guarding the entrance and, if refused, will use the assistance of previously authorized law enforcement to carry out all necessary actions to allow entry so that the person can enter the premises. This is without prejudice to the court’s decision to notify the Public Prosecutor’s Office to investigate the probable existence of an act designated by law as a crime and, where appropriate, the application of other enforcement measures ordered by the judicial authority. For this purpose, the judicial clerk may be accompanied by the interested party or their attorney, so that, under their own responsibility, they fully identify the person with whom the service is being conducted.
III.- The judicial clerk will describe and certify in the minutes they prepare the documents that were attached in copies to the complaint and delivered to the recipient of the summons.
IV.- The plaintiff may accompany the actuario to the service of the summons.
C) Service of Summons By Publications
One of the major legal fictions created by the legislator so that, in the absence of knowledge of the defendant’s address or location, the plaintiff’s right of access to justice is service by publications. This concept essentially consists of having the defendant served by periodic publications in newspapers of national or local circulation, as well as those distributed by the government.
For civil matters, the new National Code of Civil and Family Procedure authorizes service by edict under the following circumstances:
1.- When the defendant is unknown.
2.- When the defendant is unknown, and when this is stated under penalty of perjury and after a report or reports are electronically requested and submitted by the same means, which, in the judgment of the judicial authority, require the authorities or public institutions to maintain an official registry of persons and their addresses.
3.- When a person must be summoned to trial who has disappeared, whose address is unknown, or whose whereabouts are unknown.
Regarding the publications, these will contain a succinct account of the claim, indicating only the substantial points, and will be published 3 times, every 3 days, in the official procedural communication medium of the Judicial Branch of the state or the Federation, as appropriate. The defendant will be notified that the claim must be filed within a period of no less than 15 days and no more than 30 business days, counted from the day following the last publication.
This is understood to mean that if the defendant appears before the judicial authority within the granted period, they will be summoned, and the period to respond to the claim will begin the following day; if not, once the granted period expires, the period to respond to the respective claim will begin the following day.
D) Substitution of the Complaint
Finally, it is worth noting that, given the importance of the service of summons, the federal legislator opened the door in Article 79, Section VI of the Amparo Law for federal courts to supplement the complaint’s deficiency, with the sole condition that when attacking the service of summons, at least, however meager, issues or arguments in that sense are presented. That is, even when the arguments tending to attack the service of summons have been formulated in a generic, obscure, and deficient manner—which in any case would be due either to the haste in drafting the amparo or, worse still, to the gross ignorance of the attorney who prepared it—the federal courts will «amend them» and, with logical-legal arguments, will demonstrate the unconstitutionality of the service of summons. For such purposes, the following precedent criterion illustrates this specific case: SERVICE OF SUMMONS. THE REPLACEMENT OF THE DEFICIENT COMPLAINT IS PROVIDED IN THE DIRECT AMPARO PROCEEDING TO EXAMINE EX OFFICIALLY THE RESPECTIVE PROCEEDINGS, EVEN WITH RESPECT TO ISSUES NOT RAISED IN THE INCIDENT OF NULLITY OF PROCEEDINGS AND, IF APPLICABLE, IN THE ORDINARY APPEAL FILED AGAINST THE DECISION MADE IN THIS PROCEEDING.
3) Determining Who Claims Constitutional Amparo and Protection
Before examining the structure of an amparo proceeding against an illegal service of summons, we must first consider whose name it will be filed on. Although it might normally be thought that the person who should file a claim for an amparo proceeding is the person named as the defendant in the lawsuit and who, for one reason or another, was not notified of the lawsuit due to poor service of summons. It is also true that there are certain cases in which a person should have been summoned to trial given the particular circumstances of the litigation, but the plaintiff failed to do so.
The above distinction is important because the arguments for one amparo and another, as well as their effects, are different. In this sense, we must distinguish between a third party not present to the trial who, due to the particular circumstances of the litigation, should have been summoned to trial. A third party not present by equivalence is someone who, despite having been named as a defendant in the lawsuit, was supposedly summoned. The summons was incorrect, preventing the defendant from obtaining accurate information about the trial. Therefore, it is necessary to reinstate the proceedings so that the defendant can be given the opportunity to defend himself in court.
Both these two cases are illustrated by the following precedent: THIRD PARTY STRICTO SENSU AND BY EQUIVALENCE. EFFECTS OF THE AMPARO JUDGMENT.
A) Third Party Not Present At Trial and Its Effects on The Amparo Judgment
Having already made the distinction between third party not present at trial and third party not present by equivalence, it’s now important to mention some possible cases of who could be third parties not present at trial who, despite having an interest contrary to the plaintiff or claimant in a trial, were not summoned to trial by the latter and who, in any case, could assert, through an indirect amparo proceeding, the violation of their right to be heard, due process, and, in general, access to justice.
1.- The first case could be the failure to summon the registered owner of a property to trial, where possession and declaration of ownership are being disputed in a rei vindicatio action (see the entry How to Get Back an Invaded Property in Mexico), where only the possessor of the property has been sued, ignoring the existence of a third party who also claims to be the owner.
2.- Another interested third party could be a bona fide purchaser whose title is registered—or not—in the Public Property Registry, when seeking the absolute nullity of a prior purchase agreement. Consequently, if declared null and void, this could affect the rights of the later bona fide purchaser.
3.- When, in an intestate succession proceeding (see The Inheritance and Successions in Chihuahua, Mexico), a person with a right to inherit was prosecuted and removed from the trial, either due to an omission by the court or falsification by the petitioners of the succession.
4.- When, in claiming positive prescription in Mexico (the action I analyzed in the entry Adverse Possession Action in Mexico), the claim is only brought against the person who issued the just title, not the registered owner, and therefore, the latter’s property rights are jeopardized.
5.- In some cases, involving a seizure of assets belonging to the marital partnership and which, therefore, could affect the assets of the spouse who was not summoned to trial, as observed in the following binding precedent: THIRD PARTY IN THE AMPARO PROCEEDING. IN ACCORDANCE WITH THE TYPE OF ACTION BROUGHT IN THE RESPECTIVE TRIAL, THE SPOUSE WHO IS NOT DEFENDANT IN A TRIAL IN WHICH PROPERTY OF THE MARITAL COMMUNITY WERE SEIZED WITHOUT HIS INTERVENTION HAS THAT CHARACTER.
Effects
If the amparo is successful, the third party should not be summoned to court to have their rights redressed. Instead, the purpose will be to reinstate them to their affected rights, which would be the assets subject to the litigation. This does not imply that everything carried out in the trial to which they were not originally summoned should be annulled. However, they may subsequently be sued in a timely manner in another trial. The following judicial precedent illustrates the effects of amparo’s judgment: A THIRD PARTY IS TYPICAL OR AUTHENTIC AND BY EQUIPARATION. THE EFFECTS OF THE GRANTING OF AMPARO ARE DIFFERENT, DEPENDING ON ITS QUALITY.
It should be noted that, as with everything in law, there cannot be general rules because each matter has its own specific characteristics. Therefore, in some cases, the restitution of the affected property will suffice to satisfy the protection and relief of the federal court (as may be the case in the case of seizures arising from proceedings in which the third party was not a party). However, there will be other cases where it’s necessary not to reinstate the proceedings, given that this would give a significant advantage to the defendant in the original lawsuit, who did not file an indirect amparo proceeding and was defeated. Instead, they would simply and separately intervene independently against the plaintiff in that lawsuit to assert their rights. This is illustrated by the following precedent issued by the Mexican Supreme Court of Justice: NECESSARY PASSIVE JOINT LITIGATION. IT IS A PROCEDURAL PRESUPPOSITION THAT MUST BE ANALYZED EX OFFICIALLY BY THE JUDGE AT ANY STAGE OF THE TRIAL.
B) Third Party By Equivalence and Its Effects On The Amparo
Since it makes the third party by equivalence, which, as we have seen, is one who, despite having been formally designated as the defendant, was not served, or was served in clear violation of the formalities of the service of summons that would have allowed the defendant to be informed of the lawsuit against him, he files the amparo proceeding in order to enforce his right to be heard.
However, this concept, which emerged from Mexican precedents, must be qualified. This is because it is based on the assumption that the defendant did not realize in time that he had been served and, therefore, that he was not aware of the lawsuit against him. The above is because if there is any evidence that the third party seeking protection did learn of the case before the judgment became final and, therefore, was able to pursue an ordinary legal remedy against the service of summons, such as an appeal for annulment due to defects in the service of summons or an appeal against the final judgment, the third party will lose that status, in accordance with the provisions of Article 61, Section XVIII of the Amparo Law.
The following binding precedent complement and support the aforementioned inadmissibility: THIRD PARTY BY EQUIPARATION. ANYONE WHO KNEW ABOUT THE NATURAL PROCEDURE FOLLOWED AGAINST THEM BEFORE THE ISSUANCE OF THE JUDGMENT.
Therefore, as a practicing attorney, before filing an indirect amparo (recourse) for the lack or defects in the service of process against a defendant, it is first necessary to determine at what point the defendant became aware of the service of process and the existence of the trial, and, above all, whether there is evidence of this. This is because, despite the existence of a clear illegality, if one does not know how to proceed, either in the amparo (recourse) or in an ordinary appeal, it can give rise to the despicable situation where, due to the attorney’s inexperience, the illegality of the service of process is validated. This is due to the fact that in matters of strict law, as in the civil sphere, form is substance.
Effects
The effects of the amparo granted under the assumption of a third party by equivalence are more accessible, given that the amparo court will order that all actions taken after the summons be left in effect. That is, the final judgment and even awards and deeds that were issued as a result of the trial conducted without the knowledge of the third party. For the above, see the following precedent: SERVICE OF SUMMONS. THE AMPARO GRANTED AGAINST IT HAS THE EFFECT OF MAKING IT INSUFFICIENT AND RESTORES THE PROCEDURE FROM THAT ACTION.
4) The Amparo Trial and Its Structure
While this section does not intend to cover the legal institution of the Amparo Proceeding, which is a source of pride for the Mexican judicial system due to its length, and since this entry does not serve that purpose, it is nevertheless necessary to explain to the legally inexperienced what this constitutional defense is, which is available to Mexicans—and foreigners— and which, in this case, can be used to combat the lack or illegality of a service of summons.
In this sense, it is first and foremost necessary to mention that the Amparo Proceeding is a constitutional trial; that is, its content or the substance of its study concerns the acts or omissions of Mexican authorities in light of our Constitution. This allows for more open argumentation and protection on behalf of citizens, as they are not limited to the harshness of the «rules» that often comprise ordinary laws. The Constitution, as the highest norm of our legal system, is composed of principles, fundamental rights, and, in general, statements with an «open texture.» That is, without a single interpretation, which helps the most experienced, creative, and persuasive lawyers obtain consequences that are apparently not expressly regulated by the normative texts.
Regarding amparo, it is divided into direct and indirect amparo, the names of which originate from the way in which trials came to the attention of the Supreme Court of Justice of the Nation. Thus, in the absence of today’s collegiate circuit courts, the SCJN directly heard certain acts consisting of judgments, awards, and, in general, final acts of authority; while for indirect amparo, the SCJN heard the matter after a previous trial judge had studied it. Hence, the first was called direct and the second indirect.
For this specific case, the appropriate remedy for amparo against a misdemeanor or illegal summons is indirect amparo, since here we are allowed, as in a true trial, to offer evidence to prove the unconstitutionality of the act we are claiming. The grounds for this amparo—because to further complicate matters, there are «many» types of indirect amparo—are regulated in Article 107, Section VI of the Amparo Law.
Despite this assumption of admissibility within indirect amparo, the truth is that the claim must comply with the general rules for drafting the amparo, which are contained in the article of the law and which, in essence, are as follows:
1.- Mention the name and address of the person filing the amparo or the person filing it on their behalf. Here, although the law does not mention it, it would be optimal to inform the amparo judge if the petitioner is being filed as an authentic third party or a third party by equivalence, with the distinctions I already made above.
2.- The name and address of the tercero interesado, who is simply the person with the interest contrary to us, such as the plaintiff in the trial in which we stated that we were not served with the summons or that the summons was issued in blatant violation of the formalities of the summons, which prevented us from defending ourselves in court.
3.- The authority or authorities whose acts or omissions you are claiming, which in this case will be a judge or judges of a judicial circuit and the actuarios who participated in the summons.
4.- The act or omission being complained of, which in this case could be the absence or improper service of the summons.
5.- The facts and abstentions that constitute the background to the act being complained of.
This section is extremely important, as being brief in providing the origin of the problem could complicate the review of the amparo claim if the judge fails to understand how the authorities omitted or violated the procedural formalities. Therefore, it is essential, before filing the amparo proceeding, to adequately present the facts. Failure to do so risks the amparo judge thinking that you realized long beforehand that the summons was absent or illegal and, therefore, that you are filing the amparo claim untimely. Keep in mind that filing an amparo claim against a service of summons requires 15 business days from the date you received notice of the trial from which the summons arose.
6.- Finally, the issues, which are nothing more than the arguments against the contested act. An issue about which a theory cannot be developed given the multiplicity of assumptions, as it may be that it is not even known which jurisdictional body issued the eviction order when there is no such order or, if it exists, it suffers from defects that must be challenged in each specific case.
By Omar Gómez
Mexican Tax, Administrative, and Constitutional Attorney
Partner at belegalabogados.mx
Contact me at hola@ogomezabogado.com
