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On 23 June 2017, a reform to the Federal Criminal Code was enacted to classify the criminal offense of “illegal extrajudicial debt collection” established in article 284 Bis.

This offense consists of using violence or intimidation to demand the payment of a debt, either personally or through any other means. As this crime is deemed a federal offense, the debts included are those arising from activities regulated by federal laws, such as the Law of Credit Institutions, the General Law of Negotiable Instruments and Credit Transactions, the General Law on Ancillary Credit Organizations and Activities.

The classification of this criminal offense intends to protect the fundamental human rights of dignity, privacy, peace, personal security, and legal certainty, without affecting the process of legal debt recovery by those engaged in granting credits and financing. In summary, this reform intends to assure that while enforcing the legal right of debt collection the procedural guarantees and human rights of the debtors are not violated.

Upon the analysis of this criminal offense we may see that it does not oppose to the creditors’ right to “inform of the potential and judicially valid consequences that may arise from not paying a debt, as well as their capacity and right to initiate legal action against a debtor, guarantee, joint obligor or any third party related thereto whenever it is permitted by law.”

Therefore, in order to avoid this illegal action it is advisable to follow these guidelines any time an extrajudicial debt collection is conducted:

  • Do not use violence
  • Do not intimidate the debtor
  • Do not use false documentation or stamping
  • The creditor or the designated debt collector shall not usurp public positions or professions.
  • That the creditor hire professional people with good reputation in order to collect the debt.
  • That the creditor enters an agreement with whomever they have to collect the debt from, which will show the limits of their conduct and behavior.

It is important to point out that this crime is valid in various state legislations, such as in the laws of Baja California, Chihuahua, Mexico City, Nuevo Leon, Veracruz and others.

Author

Javier Navarro-Velasco has been practicing law for more than 30 years. Managing Partner of the Guadalajara office, Mr. Navarro-Velasco has significant experience in national and international arbitration, bankruptcy, insolvency and reorganization proceedings, as well as in civil, commercial and criminal litigation. He has been acknowledged by Chambers & Partners Global and Chambers Latin America as one of the leading dispute resolution and litigation lawyers from 2009 to 2016 yearbooks. PLC Which Lawyer? ranks him among the recommended lawyers in his area of practice in its 2009 edition. Mr. Navarro-Velasco was recently awarded the prestigious Doctor Honoris Causa in Law title by the Universidad Cervantina for his academic, juridical and social work. Mr. Navarro-Velasco currently coordinates the Firm’s Dispute Resolution practice for Latin America. Mr. Navarro-Velasco currently coordinates the Firm’s Dispute Resolution practice for Mexico, and is the Former Coordinator of the Firm's Dispute Resolution & Arbitration practice in Latin America.

Author

Deyanira Flores Rodriguez has been a partner with Baker McKenzie since 2003 and is a member of the Litigation practice group focusing on criminal matters. She has 24 years of experience in the practice. Ms. Flores has been an instructor at the Police and Traffic Academy in San Pedro Garza Garcia, NL and a professor at the Universidad Cervantina de Monterrey, NL, teaching Criminal Law and Criminal Procedural Law.