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Judge: BKR registration on WSNP must be removed

Late payment

Client took out a credit with Neckermann in March 2006. After her then-current relationship broke up, Client had to meet all her payment obligations from her income alone. Client tried for a long time to manage her finances properly, but this proved impossible to maintain, after which arrears arose.

WSNP process

Afterwards, Vesting Finance took over the claim from Neckermann, with Vesting Finance registering client negatively in the CKI. Client eventually applied for the WSNP program, after which she obtained her clean slate in August 2017.

Debt assistance through municipality

Dynamite argued on behalf of the client that she had done her utmost to resolve the situation regarding the payment arrears. After some time, however, she reported to the municipality for a debt relief program. However, her debt relief provider did not manage her finances correctly, after which client went to court about this and was vindicated.

Clean slate statement

Client then applied for the WSNP process. Client neatly fulfilled her obligations in the WSNP trajectory and the court granted client the clean slate declaration in August 2017. Client, after going through the WSNP process, bought a house with her partner. However, due to the negative BKR registration, client and her partner were unable to take out a mortgage, even though they had until January 26, 2018 to do so. Therefore, client's interest in removing the registration was very high. In addition, client was now financially stable. She therefore posed absolutely no danger to herself or the financial sector.

Negative BKR registration reported

Vesting Finance initially sought to demonstrate that they had correctly reported the negative BKR registration. To this end, they submitted letters from 2013. However, the negative codes had already been reported in 2009. It was therefore established for Dynamiet that Vesting Finance had failed to demonstrate the correctness of the registration. Dynamite then raised this issue and, using the circumstances of the case, asked Vesting Finance to weigh interests. According to Dynamiet, the balancing of interests had to be in the client's favor. Vesting Finance responded to this by disregarding the relevant circumstances and merely stating that, in their opinion, the lack of a prior notice or substantiating documentation did not constitute grounds to remove the registration. Therefore, there was no mandatory balancing of interests.

Importance of enforcement?

Client, in view of the urgency of the matter, brought summary proceedings against Vesting Finance. According to the court, the purpose of the registration had to be tested against the principles of proportionality and subsidiarity. In this way, client's interest had to be weighed against the underlying interest of maintaining the registration.

Client unfamiliar with registration

Client stated in court that she was not aware of the negative registration. She only became aware of the registration after going through the WSNP process and buying a house with her partner. She found this out when she applied for the mortgage. At that time, client immediately contacted Vesting Finance to still pay her, relatively low, debt in full. Client indicated that, with her partner, she wanted to start a new phase in her life without painful memories from the past.

Vesting Finance stated in summary proceedings that the end date on the registration was correctly reported after client completed the WSNP process, and obtained the clean slate. According to Vesting Finance, five years after the end date Client must prove that she is financially stable. In addition, Vesting Finance states that client filed the claim for removal of the registration shortly after the end date. Also, there would be no need for client and her partner to purchase a home.

WSNP process successful

For the court it is established that there has been a problematic debt situation in the past and that the negative BKR registration was rightly reported. On the other hand, however, client has successfully completed the WSNP process and has been granted a clean slate. According to the judge, this means that client can demonstrably assume her financial responsibility.

Financially stable

The judge also considers that client and her partner are financially stable, as they both have steady jobs. In addition, the judge values the fact that client paid the debt in full the moment she became aware of the negative registration. After all, because of the clean slate declaration, she was not obliged to do so. According to the judge, it is also plausible that only the negative BKR registration stands in the way of taking out the required mortgage, because it is common knowledge that a negative BKR registration means that a mortgage cannot be taken out, or only with great difficulty.

The court rules that client's claim should be granted. The negative BKR registration defeats the purpose of credit registration. The weighing of interests must be made on the basis of all the circumstances of the concrete case. In this case the client had a strong interest in removal of the registration, because it is sufficiently plausible that otherwise it would not be possible for her to take out a mortgage for the house she bought.

The decision

The court orders Vesting Finance to immediately remove the A2 coding in the BKR CKI. In addition, the court orders Vesting Finance to pay the legal costs, estimated to date at €1525.81 on the part of the client.

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