€8,000 in compensation for improper inclusion in ASNEF and BADEXCUG
Success case: compensation for improper inclusion in ASNEF and BADEXCUG
Recently, we have been notified of a fully upholding judgment of the Court of First Instance No. 92 of Madrid ordering an important financial group to indemnify our client in the amount of 8,000, €00 for moral damages for the improper incursion of your data in two files of defaulters, namely ASNEF and BADEXCUG.
Exposition of the case
The matter began when our client contracted the installation and security service for his habitual residence with a well-known security company, with the false belief that he could cancel such service whenever you want, that is, without any penalty being applicable for not complying with the permanence period.
Months later, our client asked the company to change the address where the security service was provided due to a change of address, which the company imposed as the only possible solution Cancel your current contract and register in the contract of what was to be your new home. In other words, our client wanted to maintain the validity of the security service contract, and it was the service provider who forced the cancellation of the contract that he had signed at that time and the correlative registration in a new contract.
What our client did not expect was that the early termination of his security contract would entail the imposition of a penalty, especially when said solution had been proposed by the service provider. service because, furthermore, nothing was indicated in this regard by the security company. Well, weeks later our client began to receive calls night and day from a collection company that insistently demanded the payment of a debt of €193.60 on behalf of a financial institution with which he had no relationship.
Despite the fact that our client discussed the claimed debt both by telephone and in writing, finally the creditor provided our client’s data to two patrimonial solvency files, failing to comply at that time not only the obligation to enter truthful information, but also the obligation to previously notify the alleged debtor that his data was going to be communicated to a file of defaulters. The lack of notification meant that our client did not know that his data was in a delinquent file until many months later and by pure chance when he was denied a financing product, precisely for this reason. </ P>
After different procedures, and given that the ownership of the credit had changed on several occasions, the injured party was able to learn that the supposed origin of the claimed debt was the penalty imposed at the request of the security company for the early termination of the contract of his previous home.
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Requisitos para reclamar
En el caso expuesto, la entidad financiera demandada ha sido condenada por incumplir de forma flagrante los requisitos exigidos por la Ley Orgánica 3/2018, de 5 de diciembre, de Protección de Datos Personales y garantía de los derechos digitales y por el “Principio de calidad de los datos”, asentada por el Tribunal Supremo, pues:
Requirements to claim
In the above case, the defendant financial institution has been sentenced for flagrantly failing to comply with the requirements of Organic Law 3/2018, of December 5, of Protection of Personal Data and guarantee of digital rights and by the “Principle of data quality“, established by the Supreme Court, therefore:
- The debt had been discussed by the alleged debtor clearly and repeatedly by all possible means, and therefore it could not be considered that it was true and peaceful.
- The claimed debt was not exact, nor had the consumer been informed of its existence in such a way that they could ascertain its origin.
- Our client had not been informed of the inclusion of his data in the delinquent files either before or after it had occurred, of which he learned, moreover, through a third party unrelated to the problem. < /li>
Calculation of compensation
Once the responsibility of an alleged creditor has been determined for the improper inclusion in a register of delinquents of the personal data of the person who is claimed to be his debtor, as was the case in our case, it only remains to establish adequate compensation for the damage caused by being classified as “defaulter”.
In this regard, the Supreme Court in its Judgment no. be liable for the effective damages caused (both financial and moral), without said compensation having, in any case, a symbolic nature. To determine the economic scope of moral damages, the Supreme Court has established the following benchmarks:
- Duration of the inclusion of the data in the delinquent file.
- Communication of the data to various companies associated with the file.
- Negative result of the procedures carried out by the affected party to obtain the cancellation of their data.
In our case, where the client was registered in the delinquent file for more than a year and whose profile had a dozen views, the Court has accepted our compensation claim for moral damages, ordering the financial entity to pay the amount of €8,000.00 as compensation for moral damages derived from the improper inclusion, plus the accrued legal and default interest, as well as the order on costs. Such condemnatory sentence has not been appealed by the financial institution, having been firm and enforceable
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Although our legal system allows the inclusion of debtors in patrimonial solvency files, in no case is the use of such files admissible as a means of pressure so that clients pay controversial debts that they have not been legally claimed by those who seek to claim creditor status and that, furthermore, they are non-existent in many cases. In the event that the creditors do not respect the legal requirements, the injured party may claim damages which, in our case, have been quantified at €8,000.00, in addition to ordering the financial institution to pay interest and costs.
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