DE HOYOS AVILÉS obtains important victory in the Supreme Court of the Nation
Updated: Mar 11
It is possible to seize assets of the Mexican Government
The Supreme Court of Justice of the Nation authorizes the seizure of assets of the Mexican State.
Summary of the facts:
Our client is a people transport company. The Mexican Social Security Institute awarded him a contract to transport patients between various clinics and cities. With the passage of time, the IMSS stopped paying, accumulating a debt of almost ten million pesos. After several years of litigation and several appeals, a sentence was obtained condemning the IMSS to pay our client.
But the payment never came. In the execution stage, our team requested the seizure of IMSS asset accounts to recover the debt. The judge denied the request for seizure based on article 4. of the Federal Code of Civil Procedures, which provides that "never" assets of the Mexican State may be seized.
The refusal of the embargo was confirmed by an Appeal Court. Our team continued the battle with an appeal before a District Judge, who also denied the request. Finally, it was possible to take the case to the Supreme Court of Justice, claiming the unconstitutionality of article 4 of the Federal Code of Civil Procedures.
The question presented before the Supreme Court of Justice was the following: Article 4 of the federal procedural law establishes that “never” may state assets be seized. Is this a total restriction? Is the right of access to justice violated with this restriction? Can the word "never" be interpreted in another way?
The Court accepted our arguments, and making an advanced Constitutional interpretation, decreed that it is possible to seize assets of the Mexican State, in certain cases, even though the procedural law seems to say otherwise.
The word "never" prohibiting the seizure of assets implies a violation of the litigants' right of access to justice. Therefore, the word "never" can have a different interpretation that allows the seizure of property, as long as it is not the property that the State uses to provide public services.
What are the implications of this sentence?
This criterion of the Supreme Court sets a significant precedent. In the past, providers of Mexican State agencies have had a great challenge to enforce contracts when the State fails.
Even with a payment judgment in favor, the collection process was complicated, since the State delayed and evaded payment, knowing that their assets could not be seized. This precedent will allow the plaintiffs to proceed with the seizure immediately once they obtain a payment judgment against the State.
Our litigation team in this case was made up of Jorge E. de Hoyos Walther, who led the case before the Supreme Court of Justice of the Nation, and Ignacio Avilés and Jaleyna de la Peña who were responsible for the long litigation to obtain the payment sentence.
The full judgment was published on March 3, 2023, and can be found under file number 31298, file A.R. 144/2021.