BKR registration must be removed
That the proposition "the perseverer wins" certainly holds true is evidenced by the case some time ago between a client and SNS Bank. The case involved a consumer who had taken out a credit limit of EUR 1,000 with the SNS Bank. At some point, this limit was exceeded by a very small amount of a mere EUR 12.55 in debit interest. As a result, SNS registered a heavy A2 charge. However, client was going to get married very soon and then buy a house with her husband. Her dream unfortunately fell apart. The application for a mortgage was rejected because of the BKR registration.
From the moment an overdraft occurred, a number of letters were sent to the client from SNS Bank asking him to clear this overdraft. Because the client did not respond to these letters, SNS Bank decided to terminate the credit, thereby claiming a total amount of EUR 1,012.55. Again, this was only a relatively small amount. To largely clear the arrears, the client then transferred an amount of EUR 500 to SNS.
Half a month later, an arrears code was reported by SNS Bank in client's name at BKR as well as a code 2, which represents the claim being collected.
Each month, the client transferred an amount of EUR 72, which meant that the arrears continued to be paid off. On June 11, 2014, the full arrears were paid off and SNS Bank placed a recovery notice with BKR. This H-coding means that the arrears that had arisen had been fully caught up (or restored).
So from the above factual outline, it appears that client was registered for a backlog that began with an overage of less than two tens. An incomprehensibly severe measure given this low amount. Client could not accept that her dream was now in ruins due to the fact that a one-time two tens had not been paid on time. She decided to take up the hard fight with SNS Bank.
Client interest:
The client was in a very difficult situation due to BKR codes. On October 18, 2017, she and her partner signed a purchase agreement for a newly built home for which the purchase price was EUR 224,000. At the time they entered into this they knew nothing about the codes.
When the client and her partner wanted to take out a mortgage for this house, they were told by ABN Amro that they would not get this mortgage. This was because client had an A2 coding in her name and this constituted an insurmountable block to the bank granting a mortgage.
Interim injunction: case lost
On February 9, 2018, the preliminary injunction judge denied client's request to remove the codes. The reason for this rejection was that there was insufficient evidence by client that the mortgage could not be granted due to the A2 coding that client had in her name. Client had not presented a mortgage application rejection at the hearing and this ultimately cost her the win.
Continued
But, persistence wins out. The client is stunned by this ruling and decides not to let her dream go so soon. She starts another summary proceeding, in which the necessary rejections are submitted to the court. For the record, the client is financially very stable and she and her partner have an ample (gross) annual income (EUR 61,100). It makes the question of why they should be protected even stronger. Based on their income, they can meet monthly expenses without any worries and they have never had any arrears. So what does enforcement of registration add?
Dispute
In short, the client asks the court to order SNS bank to remove the negative registration because it is no longer reasonable to maintain it given the current situation. To this end, she now submits all supporting documents. Client and her partner have a clear interest, namely the home they have purchased, but are also about to get married. They are currently living at home with their parents, and SNS Bank's decision to maintain the codings means in practice that they cannot move in together after their marriage. SNS Bank does not seem to care about this and does not consider the importance of the private lives of client and her future spouse to be of sufficient weight.
Judge's assessment
After commenting on the importance of performing a balancing of interests and the requirement of proportionality, the court turns to the specific case of the client. The client and SNS Bank each have different arguments as to why the negative registration should or should not be removed. What is interesting is how the judge assesses financial stability. She says: "In general, a negative BKR registration is valid for the duration of five years. This five-year period is intended to give a borrower the opportunity to get and keep his financial situation permanently in order, without burdening it by taking out new loans. Client's registration has now lasted four years. It does not appear that any other negative BKR registrations have been registered in Client's name during those four years. That in itself provides an indication that her financial situation is permanently in order. In addition, a registration expires automatically after five years without a borrower having to do anything. Therefore, a borrower does not have to demonstrate that his financial situation is permanently in order in order for the registration in his name to expire after five years. In a situation such as this, where four years have already passed and there is no evidence of new negative BKR registrations, the question is therefore justified as to what (more) the client needs to state and what documents she needs to show in order to establish in advance that she has her financial situation permanently in order.
The above clearly shows that while the requirement of financial stability is important, the burden of proof for the client to do so does not go as far as lenders would have the debtor believe. Submitting pay stubs (showing that they have a stable income) and being free of other negative registrations at the time is sufficient (!). In the ruling, the judge also looks back; he indicates that at the time the arrears arose, client was still studying and thus in a totally different situation. This too is relevant to the question of whether maintaining the registration at this time is still reasonable. The conclusion is that maintaining the registration to protect the client from overindebtedness and to protect lenders from her is no longer proportionate. SNS Bank should remove the A2 coding.
Right to own property?
Another important statement is made in this ruling. The client and her partner are getting married in a short time and are therefore looking for a home of their own where they can start building a future together. At the time of the hearing, they are both still living with their parents and thus do not have their own living space. Many lenders respond to the balancing of interests by stating that the consumer is "not homeless" and still has "a roof over their heads. In other words, removing the negative coding is not necessary. Therefore, the discussion often centers on this question: should there be necessity when moving to another home? We at Dynamiet Nederland are of the opinion that this is not the case and the judge seems to go along with this: 'Finally, it is important to note that, although the client and her partner both still live at home and therefore have housing at their disposal, she and her partner are getting married, so that for this reason it is conceivable that they would want to have their own housing in order to live together.' Although not named in the ruling, there is a clear link here to Article 8 of the European Convention on Human Rights, which guarantees the right to family life. Pursuant to this article, everyone has the right to respect for his private and family life, his home and his correspondence. Here, according to the court, the client has the right to build a life with her future spouse, and it logically follows that they will live together for this purpose in a new home to be occupied. A lender's influence should never extend so far as to affect private life in this far-reaching way.
Conclusion
With this ruling, consumers are one step further in legally challenging a wrongfully reported BKR code. In several ways, the court's consideration again provides new ammunition that can be used in the fight against wrongfully restricting those who are legally unjustly listed in BKR's system. Dynamite Netherlands also uses this ruling in its work and specifically in the requests sent to lenders on behalf of its clients.
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