Undue compensation for inclusion in file delinquent

derecho al honor

 

The inclusion error in a register of defaulters, violates the fundamental right to the honor and should be compensated

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The inclusion error files patrimonial insolvency undermines the image of the person.

7th Section of the Audiencia Provincial de Gijon, in Case 19 September 2019  (Res. No. 299/2019) He has decided in favor of a consumer who was included, incorrectly, by an entity bank in two files of defaulters. These facts were compensable as had violated their fundamental right to the honor of the projected an image of insolvency and neglect of false obligations. Also, It was irrelevant whether the amount of the debt included in the register was small or if its spread was limited.

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

Ms.. Eugenia signed with the bank BBVA contract credit card.

Although Ms.. Eugenia had no debt to the bank, It was included in two files incorrectly defaulters.

On these facts he brought an action requesting exclusion and recognition being violated its fundamental right to Honor.

Primera Instancia

The 8 May 2019 the Court of First Instance No.,,es,of Almería dictated auto initiating the phase of liquidation of Construcciones Nativen S.L,,es,the insured initiated payment proceeding against the insurer in the amount of € 161,086.24,,es,the insured filed ordinary lawsuit for the same amount against the insurer,,es,who opposed, alleging the prescription of the action brought against him,,es,de Madrid ruled in favor of the insurer. & nbsp; The judge understood the action prescribed based on the art,,es,LCS that establishes a term of two years,,es,The dies a quo would be the,,es,two years after MELV was able to take action against the debtor,,es,The claim filed,,es,the action was prescribed,,es. 6 Gijon estimating gave judgment in part the application made by Ms. Eugenia.

The statement condemned BBVA to pay 4.000 euros as compensation for the moral damage caused to the applicant by inclusion in the files of patrimonial insolvency. It was considered to be incurred in a case of art. 7.7 the L.O. 1/1982, of 5 May, Civil Protection of the Right to Honor, a Personal Privacy and Self-Image.

Provincial Court

The applicant appealed requesting compensation figure be raised to 5.000 euros. It claimed that the amount was adjusted to the lesion produced, according to art. 9.3ª LO 1/1982.

He argued that it was against the inclusion of a debt that was not required. There was no warning prior request for payment if the inclusion of neglect.

BBVA considered that the debt was valid, due and payable and which fulfilled the requirement of prior payment requirement.

Also, He stressed the entity trespass occurred only after the admission of demand (21 February 2018) so it had to assess the decline in both files occurred 13 September and 31 October 2018.

The 19 September 2019 7th Section of the Provincial Court of Gijon ruled on the appeal filed, esteeming full.

The existence of a prior request

For Hearing,  Yes there was prior notification. It was brought to the proceedings by the defendant itself. On the other hand, the debt was valid in its origin, due and payable as suited to the provisions of the contract.

Erroneous inclusion in the files of defaulters

The Court referred to Case 10 and 17 July they are following the doctrine of the Supreme Court in its judgment of 18 July 2015. In this, out the criteria for adapting the pautar of the art. 9.3No. LO 1/1982 to the particularities of the undue interference by inclusions data files patrimonial insolvency.

It started from the general criterion, as noted by the Supreme Court (STS 12 December 2011), that in these lesions They not fit symbolic compensation. It was not possible to go to the assessments of the scale of traffic accidents as, It was not to refer to the assessment of compensation for psychological damage "... because we do not find ourselves before a pure moral damage, assimilable to the psychic damage”, but that was before a improper moral damage that had a equity component (STS 27 July 2006). Also, had capital legal criteria for quantification were unnecessary and inappropriate approach other.

Therefore, guidelines should be followed the art.9.3º of that Organic Act that established the need for set compensation in response to the moral damage. It would be valued "in the circumstances of the case and the severity of the injury actually produced, for what you take into account ... the broadcast or hearing the medium through which it was produced.

Circumstances to consider the case-law were:  

  • the severity of neglect and degree of proportionality of the performance of the defendant;
  • the steps that had to make the plaintiff to unsubscribe records;
  • the permanence in time of inclusion of data in the register ...
  • the data dissemination "

The time period in which the data kept on record, if it had been prolonged and unjustified "entity aggravates the injury and increases the possibility of disclosure for entities to consult the file ... undermines their image of personal and financial solvency.

Conversely, It was considered irrelevant if the amount of the debt included in the register was small or if its spread was limited in contrast to mass media access.

The Court cited the STS 17 July 2015: “while analyzing information dissemination in a mass medium must be quantitative ... the dimension of the damage for its dissemination must be qualitative, as each query in the file causes injury to the least potential to the subject to the extent that it is one query directly access your data because have or want to have ... some commercial elation with and affected ... ".

Delinquent records were consulted by companies associated to deny funding or other benefits for those who do not deserve confidence deadbeat. Thus, these companies avoided hiring and grant loans to those who did not meet their obligations cash.

STS 27 April 2017 summed up the criteria set by the Court for the purpose of evaluate the moral damage, so that "... in cases of infringement of the fundamental right to honor, the forecasts are to be applied to the Organic Law 1/1982 ... which provides in Article 9.3 a presumption <<legal and law>>, existence of compensable injury when there has been an unlawful interference with the right to honor, and also that They are not admissible merely symbolic compensation of character (STS 11 December 2011 the 4 December 2014)”.

Therefore as specific criteria, in cases of inclusion of data records of people in arrears, unfulfilled requirements set by the LOPD, would be compensable:

  • Affectation to dignity in their internal or subjective aspect
  • Dignity involvement in external appearance or objective concerning the consideration of others. As noted by the STS 18 February 2015, “should be considered the disclosure that has had such data ", as well as its residence time.
  • The breaks and anguish caused by the efforts would have to make the affected to achieve the correction or deletion of incorrect data.

The low level of debt did not diminish the importance of the moral damage caused inclusion in records of defaulters.

The confidence of the plaintiff against third parties, His image of solvent and dutiful person of its obligations, He had been compromised by erroneous inclusions.

The conduct of the defendant was not inconsequential, thus unjustifiably aggravated public unworthiness previous image of the plaintiff. The projected image was that of an insolvent person who could not meet their obligations or a person showing informally in fulfilling their commitments unattended and not to meet its debts.

The hearing referred to the judgment of the Supreme Court of 18 February 2015 wherein the compensation provided is raised to 10.000 euros in a case in which there were four consultations.

Therefore, the amount of compensation awarded is not fully complied with the parameters of the Court and the High Court, the complete estimate of the resource from being.

Conclusion

The inclusion of a debt erroneously and inadmissible in a register of defaulters is a violation of the fundamental right to the honor that must be indemnified.

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