Improper inclusions in asset solvency files

Compensation of up to 10,000 euros for improper inclusions in asset solvency files

What are asset solvency files?

Equity solvency files, also known as delinquency records, are privately owned credit information systems whose main purpose is to provide information on non-compliance of consumer and user debts. One of the most used is ASNEF, a database where affiliated companies can register your debtor clients and share information about the financial reliability of potential credit applicants.

Although under certain circumstances this practice is in accordance with the Law, the Spanish Supreme Court has established a doctrine on the possibility of claiming compensation for moral and/or patrimonial damages before an undue inclusion in these asset solvency files.

Certainly, the majority of injured parties do not know that they appear in these files until they are denied the contracting of a product or the granting of credit, with the loss of credit capacity and discredit personnel that it generates. Our specialists, who have been able to defend some of these victims, explain it to us.

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Violation of the right to honor

In order to include the data of the alleged debtors, the files of defaulters must comply with the regulations on the protection of personal data. Precisely, article 18.4 of the Spanish Constitution establishes that:

“The law will limit the use of information technology to guarantee the honor and personal and family privacy of citizens and the full exercise of their rights”.

The Constitutional Court understands that the economic and financial data of people falls within the sphere of family and personal privacy, although the protection of this data should not be understood in an absolute way . Thus, article 20 of the current Organic Law on Data Protection includes the criteria that companies must follow to include the data of an alleged debtor. If they are not complied with, the affected person could claim compensation for any damages that he may have suffered due to the illegitimate interference with his right to honor.

Supreme Court rulings for improper inclusions in asset solvency files

Under the validity of the previous Personal Data Protection Law (Organic Law 15/1999, of December 13), repealed and replaced by the current LOPD, and at Under the provisions of Article 29 of the same, the Supreme Court determined in its Judgment dated February 1, 2015 that:

“only personal data may be included and processed that is decisive for judging the economic solvency of the interested parties and that truthfully reflects their current situation [must] to be rectified or canceled the data that does not meet the requirements derived from the principle of data quality”.

The same Court previously ruled in similar terms on April 9, 2012, in whose Fifth Legal Basis the following is stated:

“Communicating untruthful facts to a registry of delinquents is a conduct contrary to good banking usage and practices, since banking entities must carefully ensure the exact communication of such important data, also taking into account the damage that can be caused when someone is falsely considered delinquent”.

This doctrine that the Supreme Court has been establishing, known as the “Principle of data quality”, was synthesized and referenced in its recent Judgment of March 23, 2018, where points out the need for the debtor’s data to be (i) adequate, (ii) exact, (iii) pertinent and (iv) proportionate to the purposes for which they have been collected and processed, otherwise its inclusion must be understood as unjustified.

In this same sentence, the Supreme Court finds that the inclusion is adequate when it is motivated by a previous debt:

“[…] certain, expired, enforceable, that has been unpaid, and that payment has been required to the debtor, informing him that if payment is not made within the term established for it and the other requirements are met, the data related to the non-payment may be communicated to files related to the fulfillment or non-compliance of monetary obligations.”

Furthermore, you understand that accuracy exists when the data included in these records is:

“certain and exact, [that is, the debt is] unequivocal, indubitable, and a prior payment requirement is also necessary. For this reason, it is not possible to include in these records personal data due to uncertain, doubtful, non-peaceful debts or those subject to litigation”.

Regarding proportionality and pertinence, the High Court interprets that, being the purpose of the file is to reflect the solvency of the debtor and not the simple verification of the debts:

“it is only pertinent to include in these files those debtors who cannot or do not want to, without justification, pay their debts, but not those who legitimately disagree with the creditor regarding of the existence and amount of the debt”.

Likewise, the Provincial Court (Section 6) of Alicante, in its Judgment of January 21, 2021, resolved that the inclusion in the file as pressure to obtain payment of the disputed debts is an illegitimate interference in the right to honor.

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Requirements to demand a claim for damages

Thus, in accordance with the regulations and jurisprudence on data protection and the right to honor, a person may request a claim for moral damages when it appears in any of the files of defaulters as long as:

• The debt is uncertain, doubtful, not peaceful or subject to litigation, in which case the alleged debtor must discuss and deny its origin and legitimacy by any means (certified mail, burofax, telegram, among others), having to prove said controversy documentarily; or, alternatively
• The affected party has not been warned, either at the time of formalizing the contract, or at the time of requesting payment, about the possibility of including their data in insolvency files. In addition, the entity will incur a violation of the right to honor when it does not notify the client of its inclusion in the file within 30 days after the notification of the debt to the system.

Likewise, pecuniary damages can be added to non-material damages when there is specific damage –for example, the refusal of a credit- or diffuse – for example, the visualization of the injured party’s file by numerous entities with the discredit that this entails.

If you find yourself in any of these situations, it is possible that with the help of a specialist you can claim compensation for any damages you may have suffered as a result of the illegitimate interference with his right to honor. The amount of compensation will depend on (i) the amount of the debt, (ii) the temporary extension of the violation, (iii) the degree of diffusion and (iv) the frustrated contracts due to the inclusion.

Here are some examples of the compensation awarded by some Spanish Courts:

• Compensation of 10,000 euros for patrimonial damages for the denial of a credit for being even in a delinquent registry (Sentence TS 613/2018, of November 7).
• Compensation of 10,000 euros for an improper inclusion for 10 days of a debt of 135.42 euros (Sentence TS no. 81/2015, of February 18).
• Compensation for non-pecuniary damages of 5,000 euros due to improper inclusion due to a non-existent debt (Sentence TS no. 267/2014, of May 21).
• Compensation for moral damages of 7,000 euros for improperly including a debt of 227.71 euros (AP Judgment no. 18/2016, of January 14).

Conclusions

At JLCasajuana Abogados we are specialists in claims against companies that have improperly included the data of consumers and users in the multiple patrimonial solvency files (v. g. ASNEF, EQUIFAX, RAI or EXPERIAN), achieving not only the cancellation of several undue inclusions but also economic compensation for moral and patrimonial damages.

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Departamento de Derecho Mercantil

15/06/2021