Amsterdam/Zoetermeer - ING Bank must remove the BKR registration of a residual mortgage debt, the Amsterdam District Court ruled last week.
The negative BKR registration
Dynamiet Netherlands' client, together with her then partner, had taken out a mortgage with ING Bank to finance their joint home. After the relationship broke down, the house was sold, leaving a residual debt of almost EUR 140,000. The client got in touch with ING Bank's debt collection agency, Vesting Finance, to make an arrangement for 'her part' of the residual debt. After negotiations, agreement was given on a payment of EUR 45,000 against final discharge. This amount was paid by the customer on February 9, 2017, after which ING Bank placed a particularity code 3 with an expiration date on the same day.
No mortgage due to BKR registration
After the residual debt was paid, the client started looking for a home of her own to buy. Unfortunately, she was told by several parties that she could not get a mortgage because of BKR registration. In desperation, she turned to Dynamiet Netherlands for help.
Taking legal action
Dynamite Netherlands contacted ING Bank and eventually objected to the BKR registration. ING Bank and Vesting Finance did not want to cooperate in removing the BKR registration. ING Bank indicated that the general interest of lenders in maintaining the BKR registration outweighed the interest of the customer and therefore the BKR registration would not be removed. Client decides to file a lawsuit together with Dynamiet Nederland. On September 5, 2019, the hearing of the case was in Amsterdam.
The court
- In this case, the Amsterdam District Court found that ING Bank had not sufficiently explained that the interest in allowing the BKR registration to continue for more than two more years outweighed the interests of the customer, namely buying her own home. The court came to this conclusion because until the divorce and sale of the home, the customer had always paid her mortgage. In addition, ING Bank itself made a payment arrangement against final discharge; this was not required and ING Bank was not obliged to agree to it. This was her own choice.
- Furthermore, two years and eight months have now passed since the last payment. Currently, the client is stable, is a director of a thriving business and earns well above average income. It is clear that no mortgage can be obtained with the BKR registration, this has been sufficiently demonstrated by submitting six rejections from mortgage lenders. ING Bank still argued that the customer currently lives with her partner and could also rent another house. However, the court ruled that it had been sufficiently demonstrated that this was not a reasonable alternative, because the customer could not qualify for social rent and the living costs of a suitable rental home would be significantly higher than the living costs of the home based on a mortgage. The court finds the fact that the client wishes to purchase a home of her own that can accommodate her family, she has a concrete home in mind and needs financing to do so, a sufficiently concrete interest to remove the BKR registration.
- The court ultimately ruled that the BKR registration should be removed by ING Bank. It found that privacy laws give the opportunity to object to these records, even if they were rightly posted. This objection must be honored by a data controller (here ING Bank) unless it cites compelling reasons that require the data subject's interest to be set aside. Furthermore, a data controller must demonstrate that, in this particular case, its interests outweigh the interests of the data subject. Merely pointing to the duty to register is not sufficient (consideration 4.10).
