Derecho al honor, defaulters and files prior requirement

derecho al honor

Enrollment in a register of defaulters before the pre-payment requirement does not necessarily entail the violation of the right to honor

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The Civil Chamber of the Supreme Court, in Case 23 October 2019 (Res. n.º 563/2019), has dismissed the appeal against a financial because no violation of the fundamental right to honor. The client was included in a register of defaulters before starting the relevant payment procedure. The Chamber considers that the request for payment was a formal requirement and had a garantista purpose.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

D. Gonzalo was the holder of a credit card from El Corte Ingles 2006. In his day he stopped paying the installments for economic impossibility coming to agree to 7 successive novations. The last was to pay installments between May 2011 and June 2012. Financiera El Corte Inglés EFC promoted S.A claim for payment trial 899,58 euros. The debtor neither paid nor opposed and urged implementation.

The surprise came for the D. Gonzalo when early 2017 from your bank referred that appeared associated debt 828,25 Equifax euros, and the same He was registered in the file from the 05/08/11. Considering the actor, on the basis of the facts, He violated his right to honor,  requested compensation 10.000 euros to financial, on the grounds that it was not previously required to pay. It also claimed, that once the defendant brought a letter dated no specific amount 20/08/11. No record receipt nor made mention of the possibility of including its data in a record of delinquency.

The English Court argued that the debt remained unpaid and was well known to the plaintiff, whose veracity not know or refused. Subsidiarily he opposed the claims indeminizatorias. He added that the defendant, the debt was 1.577,82 euros to the interests apply. Financial was prepared to cancel said amount should be estimated demand.

Primera Instancia

The 9 July 2018, the Court of First Instance No. 5 Aviles, He gave judgment dismissing the lawsuit.

He concluded the court "that injury would honor if the omission of these prerequisites and requirement information, had prevented or limited to the debtor's ability to pay and therefore eliminate the appearance of insolvency, or they had prevented discuss debt, liquidity, enforceability, or proper determination, so you have finally been included in the file to third parties showing an appearance of undeserved insolvency. In this case, the applicant acknowledges the veracity of debt, and even does not articulate any argument to reason that the omission of the requirements has been the cause of an injury to his honor because of being fulfilled, inclusion would be inappropriate or irrelevant Private having been thus the possibility to react. There has been therefore breach of formal requirements, but no injury to the right to honor, because their condition is not insolvent debtor discussed”.

provincial Court

The 15 November 2018 5th Section of the Provincial Court of Oviedo assumed the proven facts in the first instance, and he gave judgment dismissing the appeal.

While prior information in the contract and prior notification requirements were, in this case, this breach a contradiction to the art. 18.2 THIS.

Supreme Court

Against the judgment of the Court, appeal was filed by the plaintiff.

The appeal was filed infringement:

-art. 38.1.c) and 39 Royal Decree 1720/2007, of 21 December, by Regulation approved development of LO15 / 1999, of 13 December, protection of personal data.

-art. 18.2 EC. As to the art. 19.1 of the Data Protection Act, in relation to art. 9.3 de la LO 1/1982 of 5 May, on civil protection of the right to honor, a la intimidad personal y familiar y a la propia imagen.

The appeal was based on the fact that the Financial did not inform the debtor that data relating to non-payment could be communicated to files defaulters, and that this undermined their right to honor. All this despite, the actor, ratified in the first instance its failure prolonged time consciously claiming insolvency estate.

The Public Prosecutor adhered to the decision taken by the Audiencia Provincial de Oviedo.

The Supreme Court, Civil Division, in Case 23 October 2019 He dismissed the appeal.

The Chamber pointed out the mismatch and tuning of the doctrine cited by the appellant (STS 245/2019, of 25 April).  At the time the Chamber motivated the purpose of the requirement in its judgment 740/2015 of 22 December, He is stating that it was not a simple record of debts, but about people who fail to meet their payment obligations because they can not or unwilling to face them so I unwarranted. This requirement prevents carelessness or error that that information is relevant to prosecute its solvency.

In this case, It was not necessary requirement for full certainty had it was not possible to reach an agreement. The creditor had long agreed to the novation, without the appellant would make it committed against. His attitude was totally passive abandoning any negotiations to settle the debt. The creditor did not include D. Gonzalo in the register of solvency of a surprise.

For the Board, not the purpose of the requirement infringed taking into account the data tested and dismissed the appeal.

Conclusion

The inclusion of a recognized and certain debt, in a register of defaulters it does not constitute a violation of the right to honor, although it has been done before the order for payment.

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