Introduction: The Decision Made Before Filing Suit

When a commercial debt portfolio enters judicial management, the first task is not drafting complaints — it is classification. Each obligation arrives with a different documentary basis — a pagaré (promissory note), an accepted invoice, a privately executed contract, sometimes little more than an email exchange acknowledging a balance — and that basis, together with the amount in controversy and the debtor’s asset profile, determines the available procedural path. The choice between the proceso ejecutivo (executive proceeding — a summary debt-enforcement action) and the procedimiento monitorio (order-for-payment procedure) is not a formality of the case caption: it defines the timeline of the proceeding, the defenses the debtor may raise, the access to measures over the debtor’s assets and, above all, what happens if the debtor remains silent.

One point deserves emphasis from the outset. That the path is dictated by the instrument, the amount and the debtor does not make the choice automatic. The law sets the framework, but reading it correctly requires specific expertise. Courtroom practice regularly reveals ordinary collection actions filed for debts that fit squarely within the monitorio, and summary proceedings initiated where the executive path was available. Each of these errors costs the creditor time and money; some — when the prescripción (statute of limitations) runs while the wrong proceeding advances — cost the entire credit.

This article examines the criteria that, in the daily operation of recuperación de cartera (portfolio recovery), determine the choice between one path and the other, with particular attention to the legal regime of the commercial invoice — the most frequent and most misunderstood document in business-to-business collection — and to the weight the debtor’s profile carries in a decision too often presented as purely documentary.

I. Two Procedural Designs for Two Different Premises

The executive proceeding and the monitorio share a purpose — the collection of monetary obligations — but rest on opposite premises.

The executive proceeding (Arts. 347 to 355 of the COGEP, the General Organic Code of Procedure — Ecuador’s civil procedure code) begins from a plausibility judgment the law has already made in advance: the título ejecutivo (enforceable instrument). Art. 347 lists the documents holding that status — including, for purposes of commercial collection, bills of exchange and pagarés, now expressly admitted in physical, dematerialized and electronic form following the reform published in Official Registry Supplement 245 of February 7, 2023 — and Art. 348 requires that the obligation contained in the instrument be clear, unconditional, determinate and currently due; where it involves money, it must additionally be liquidated or liquidable through simple arithmetic.

In exchange for that demanding threshold, the executive path offers three advantages no other collection procedure replicates. The first is precautionary: under Art. 351, if the plaintiff attaches to the complaint certificates evidencing the debtor’s ownership of assets, the judge may order providencias preventivas (prejudgment protective measures) over those assets in the very order admitting the case, without requiring the general prerequisites for precautionary relief; and where the credit is secured by mortgage, attachment of the real property may be requested directly. The second is defensive: Art. 353 closes the catalogue of available defenses to an exhaustive list — non-enforceable instrument, formal nullity or falsity of the instrument, total or partial extinction of the obligation, the criminal-law hypothesis linked to usury, and the preliminary objections provided in the Code — drastically narrowing the terrain for dilatory defense. The third is appellate: under Art. 354, appeal from the judgment proceeds only without suspensive effect, so that to halt enforcement the debtor must deposit or post security for the value of the obligation; and cassation is expressly excluded.

The counterpart is the rigidity of the entrance. Art. 349 provides that the omission of a qualifying enforceable instrument produces the inadmissibility of the complaint and that this defect cannot be cured; Art. 350 authorizes the judge to reject the executive action outright where the attached instrument lacks enforceable character. Whoever forces the executive path with a doubtful document does not risk a warning — they risk the outright loss of months of management.

The monitorio (Arts. 356 to 361 of the COGEP) inverts the logic. It is designed precisely for the debt that is not embodied in an enforceable instrument: Art. 356 makes it available for the collection of a determinate, liquidated, due and payable monetary debt not exceeding fifty salarios básicos unificados (SBU — Ecuador’s statutory unified basic salary, used as a unit of account for procedural thresholds) — in 2026, with the SBU set at USD 482 by Ministerial Agreement MDT-2025-195, the ceiling stands at USD 24,100 — and allows the debt to be proven, among other means, through invoices or documents signed by the debtor, proof of delivery, certifications or electronic records demonstrating the prior relationship between the parties. Where the document was created unilaterally by the creditor, the rule imposes an additional burden: attaching evidence making the existence of that prior relationship credible.

The engine of the monitorio is not precaution but silence. Once the complaint is admitted, Art. 358 grants the debtor fifteen days to pay; if the debtor fails to appear, or appears without raising opposition, the initial interlocutory order becomes final, acquires res judicata effect, and enforcement proceeds directly, beginning with the attachment of the assets the creditor designates. Art. 363(9) closes the circuit: that unopposed payment order is, in itself, an enforcement title. Two complementary provisions strengthen the creditor’s position: service of process (citación) with the petition and the payment order interrupts the statute of limitations (Art. 358, second paragraph), and from service onward the debt accrues the maximum conventional and default interest legally permitted (Art. 360). If the debtor opposes, however, the proceeding transforms: Art. 359 convenes a single hearing with phases for procedural housekeeping and for evidence and argument, with neither amendment of the complaint nor counterclaim permitted, and only appeal lies against the judgment.

In short: the executive proceeding buys early precautionary leverage and closed defenses at the price of an impeccable instrument; the monitorio buys speed by betting on the debtor’s silence, at the price of a monetary ceiling and the possibility of a full hearing if the bet fails.

II. The Instrument Rules: The Complete Regime of the Invoice

With the pagaré and the bill of exchange the decision is linear: they are enforceable instruments by express provision of Art. 347, and the natural path is the executive one. The real complexity of a commercial portfolio lies in the invoice, because the invoice does not have one regime — it has three, and confusing them is the most frequent source of classification error.

First hypothesis: the factura comercial negociable (negotiable commercial invoice). The Commercial Code, in Arts. 200 et seq., regulates a category of invoice that is, in itself, an enforceable instrument. Under Art. 203, commercial invoices constitute negotiable and enforceable instruments when they contain an unconditional order to pay, whose acceptance is signed by the purchaser or acquirer of goods, rights or services — or their delegate — with the express declaration of having received them to full satisfaction, or when they have been tacitly accepted. Except for the rules on protest, the provisions governing the pagaré apply to them. Tacit acceptance operates, under Art. 202, when within eight days of receipt the invoice has not been challenged through the mechanisms the rule details. Art. 207 requires additional formal elements — the heading «FACTURA COMERCIAL NEGOCIABLE», the unconditional order to pay, the amount in figures and words, the declaration of receipt to satisfaction, the corresponding signatures — and Art. 206 concludes: negotiable commercial invoices that have been accepted and satisfy all tax and commercial requirements “shall constitute an enforceable instrument and full proof of the obligation,” their collection proceeding through the executive path, with no ceiling on the amount whatsoever. Art. 208 adds the prerequisites of that action — that the invoice has not been returned or challenged, that payment is currently due, and that the action is not time-barred — and preserves the holder’s option to sue through another path if it so decides.

The operational consequence is direct and routinely overlooked: the creditor who structures its invoicing under the negotiable commercial invoice format purchases, from the moment of issuance, the executive path. For a company selling on credit as a matter of course, that is a documentary design decision worth more than any subsequent procedural strategy.

Second hypothesis: the ordinary invoice within the monitorio ceiling. The invoice for goods and services that does not meet the negotiability requirements — the vast majority of commercial traffic — is not an enforceable instrument, and therefore enters the monitorio whenever the debt does not exceed fifty SBU. Art. 356(2) contemplates it expressly, alongside proof of delivery, certifications and electronic records evidencing the prior relationship. Here the complementary evidentiary burden for unilateral documents acquires practical relevance: an invoice issued by the creditor itself should be accompanied by dispatch guides, purchase orders, tax-withholding receipts or correspondence that make the commercial relationship credible.

Third hypothesis: the ordinary invoice above the ceiling. When the debt documented in ordinary invoices exceeds fifty SBU, the claim is no longer actionable through the monitorio and, absent an enforceable instrument, neither through the executive path. The COGEP expressly resolved that gap: Art. 332(6) assigns to the summary proceeding “controversies relating to invoices for goods and services […] where the claim is not actionable through the monitorio procedure or the executive path.” The assignment is express, and from it follows a conclusion ignored in practice with surprising frequency: the ordinary proceeding is ruled out for the direct collection of invoices. The only residual scenario in which an invoice reaches the ordinary proceeding is a genuine plenary action on the existence of the debt itself, where the invoice operates as evidence of the legal relationship rather than as the documentary basis of a direct collection claim.

The joinder problem. One operational nuance deserves its own section. Art. 145 of the COGEP permits the joinder of distinct claims in a single complaint where, among other requirements, all can be processed through the same procedure. Suppose a debtor with two unpaid ordinary invoices: one for USD 20,000 and another for USD 10,000. Each, individually, fits within the monitorio. Joined, they total USD 30,000 and exceed the USD 24,100 ceiling: joinder destroys the path each claim had separately, dragging the collection into the summary proceeding. The alternative — perfectly legitimate, since these are distinct obligations with distinct sources, not the artificial splitting of a single debt — is to sue on each invoice in a separate monitorio: two proceedings and two rounds of service, in exchange for preserving in both the mechanism of silence. It is a cost-benefit calculation to be made invoice by invoice, remembering additionally that, under Art. 144(1), the amount in controversy is fixed including liquidated contractual interest: an invoice nominally under the ceiling may exceed it once interest is computed.

The private contract without signature acknowledgment. There remains the classic grey zone: the contract executed between private parties. Art. 347(3) grants it enforceable status only if it has been legally acknowledged before a notary, acknowledged by judicial decision, or executed with an electronic signature verified before judicial authority. In theory, then, the contract can be “converted” into an enforceable instrument. In practice, expecting the future defendant to voluntarily appear before a notary to acknowledge the signature on the very contract being collected against them is illusory, and portfolio-management experience confirms that this route is rarely traveled. The real decision is made before or after default: before, by designing the contracting process around the acknowledgment mechanisms the 2023 reform facilitates, or by requiring the execution of pagarés documenting the balance; after, by accepting the applicable plenary path or renegotiating the documentary basis — the signing of a pagaré for the outstanding balance — as a condition of any refinancing.

III. The Debtor Also Rules: Probable Solvency and Useful Speed

Everything above is documentary analysis, and documentary analysis is only half the calculation. The other half is an uncomfortable truth of judicial collection: winning quickly against a debtor without assets is winning paper. A final order or favorable judgment against a nonexistent estate is an accounting entry, not a recovery.

That is why the debtor’s asset profile alters the documentary equation. Where the debtor holds identifiable registrable assets, the precautionary advantage of Art. 351 tends to dominate every other consideration: the protective measure over a productive asset is, in litigation experience, the instrument that most frequently produces the debtor’s “cooperation,” whether in the form of payment or of serious negotiation. That advantage explains why, where an instrument exists — a pagaré, a negotiable commercial invoice — the executive path is preferred even at amounts the monitorio would also cover. The precautionary lever, however, has two well-known limits: against the debtor with no assets in their own name, the measure lands in a vacuum; and against the debtor of abundant means, the pressure dissipates when the debtor asks the judge — exercising a legitimate right — to substitute the productive asset affected with a less attractive one that equally secures the obligation.

Sustained observation of portfolios under management also permits a typology of the sued debtor that claims no statistical value but real practical utility. Three recurring behaviors appear: the debtor who conceals assets through transfers to third parties — conduct that shifts the dispute toward complementary actions such as the acción pauliana (fraudulent-conveyance action) or the action for simulación (sham transaction), turning the collection case into the first piece of a longer litigation —; the debtor who appears to mount a substanceless, purely dilatory defense; and the debtor who never appears at all. In the monitorio, this last behavior is more frequent than skepticism suggests: in practice, half or fewer of monitorio proceedings draw opposition, and where opposition comes, it is rarely viable. The design of Art. 358 — silence producing res judicata — yields real results.

From the intersection of document and assets emerge the three basic strategic configurations. Debtor with assets and an available instrument: executive path, with ownership certificates in hand from the moment of filing. Probably silent debtor and debt under the ceiling: the monitorio is the shortest route to an enforcement title, measured in weeks rather than years. Debtor in generalized cessation of payments, with multiple creditors enforcing in parallel: no individual path solves the problem, because the scenario is already an insolvency scenario, and the individual race to attach can be a race to nowhere — a subject deserving its own treatment, which this article leaves merely stated.

IV. The Price of Choosing Wrong

Classification errors carry two kinds of sanctions: the visible and the silent.

The visible ones are those the COGEP itself imposes. The executive complaint built on a doubtful instrument faces outright rejection under Art. 350 or incurable inadmissibility under Art. 349: months of management lost and — the true cost — the statute of limitations running all the while. Conversely, the monitorio complaint over a debt that is embodied in an enforceable instrument collides with the negative requirement of Art. 356 — the rule demands that the debt not be embodied in an enforceable instrument — and stands exposed to inadmissibility. And whoever resorts to the monitorio underestimating the probability of opposition must remember that opposition transforms the procedure into a full single hearing, evidentiary debate included: the “fast” path stops being fast, and that scenario must be budgeted from the start.

The silent sanction is the costliest precisely because no one imposes it. No judge declares inadmissible a plenary action filed where the monitorio was available: the proceeding simply advances, with answer, hearing, evidence and argument, and two or more years later the creditor obtains by judgment what it could have had — final, through the debtor’s silence — in a matter of weeks. That error appears in no judicial decision; it appears in the client’s income statement, in the form of accumulated fees, prolonged accounting provisions and the time value of money lost.

There is, finally, a clock running across every hypothesis: the statute of limitations is interrupted by service of process (Art. 358 for the monitorio, consistent with the general regime). The choice of path is also — though rarely framed this way — a decision about how long it will take to reach service on the debtor. A theoretically superior path that delays service may be, in the concrete case, the wrong path.

V. Conclusion: Classification as Discipline, Not Intuition

The choice between the executive proceeding and the monitorio — and, for invoices, among the executive, the monitorio and the summary proceeding — is not a decision to be made when drafting the complaint. It is a diagnosis to be performed upon receiving the portfolio: each obligation classified by the document supporting it, the amount it reaches with interest, the security accompanying it, the state of the limitations period, and the debtor’s verifiable assets. Described in the abstract, the analysis seems elementary. In practice, it is what separates professional collection from improvised collection: a lawyer removed from the daily management of portfolios may know every rule cited in this article and still get the calculation wrong, because the calculation is not in the rules — it lies in the case-by-case intersection of the available document, the reachable assets and the useful time.

No client remembers the procedural path through which their portfolio was processed. Every client remembers how much was recovered, and how long it took.

This article reflects the academic position of Moncayo & Almeida Abogados® and does not constitute individualized legal advice.