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Client Dynamite wins lawsuit Vesting Finance (Neckermann)

Bankruptcy of Neckermann

Client has ordered through Neckermann in the past. In 2011, an arrears coding is placed. After the bankruptcy of Neckermann, Vesting Finance takes over many of the files of the bankrupt Neckermann.

Reminders not received

Client is not aware of any arrears. Client specifically disputes that he has received one or more reminders. At the time that client applies for financing for the purchase of his own home, client is first confronted with the fact that there is a negative registration in his name and in this case that there is an outstanding amount. Client contacts Vesting Finance and pays the full amount. Vesting Finance acknowledges receipt of the payment and posts an expiration date . This would keep the BKR registration reported until September 2022. Until then, client cannot obtain a mortgage.

Early removal of registration

In client's particular case, there was good reason to doubt that the BKR registration had been placed "technically correctly. Dynamite was also convinced that the registration should be removed conjunctively. Dynamite provided several reasons on the basis of which we believe that this registration has no added value. There was a misunderstanding in the specific case, client was not informed of the arrears, and the arrears were minor. Moreover, client poses no danger to himself or the financial sector. Therefore, maintaining the registration served no interest. Client, on the other hand, did have a demonstrable interest in removing the registration, namely buying and financing a home.

Duty to report to BKR

Vesting Finance submitted the following in response to our request. Vesting Finance states that the payment arrears have been correctly and appropriately processed, that the client's file has been handed over to a collection agency and that reminders have been sent to the client pointing out the possible consequences of failing to make payments. Vesting Finance also states that it is obliged to report the payment arrears to the BKR. According to Vesting Finance, the client's interest in deleting the registration does not sufficiently outweigh the interest in maintaining the registration.

Written warning missing

Vesting Finance was, pursuant to the BKR General Regulations of April 2010, obliged to warn the consumer, in a timely manner and in writing, in case of arrears or the threat of arrears occurring. The court stated, "Vesting Finance has no documents from Neckermann from 2011 about the advance notice, and therefore cannot prove that Neckermann did send this advance notice, let alone that it was received by [...]. Client has provided demonstrable evidence that there is an interest and that he cannot obtain a mortgage as a result of the registration.

Client's interests weigh more heavily

Regarding the balancing of interests, the judge stated as follows: 'There is insufficient evidence of a real risk to the financial sector, as argued by Vesting Finance, since [ ...] has a fixed income and no other debts. [ ...] is accompanied by his parents. There is no evidence of overcrediting or abuse. [ ...] has further made it sufficiently plausible that, because of the arrears notification, he is currently unable to obtain financing for the home he purchased. The judge concluded that the client's interests in this case outweighed the credit reporting interests.

The decision

The Court orders Vesting Finance to remove, or have removed, the codes registered in the Central Credit Information System of the Bureau Kredietregistratie with respect to the client within three days, under penalty of a fine of EUR 5,000 for each day they remain in default with a maximum of EUR 50,000. In addition, the court orders Vesting Finance to pay the costs of the proceedings on the part of the client, estimated to date at EUR 997.11.

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