Interference in the right to honor by uncertain or disputed debts

derecho al honor

Inclusion in lists of defaulters for doubtful debts, uncertain or disputed, violates the right to honor

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To that debts can be entered in delinquency records must be overcome and certain, namely, unequivocal and undeniable.

The Civil Chamber of the Supreme Court,  in Case 27 September 2019 (Res. nº 496/2019), resolved in favor of some borrowers a bank for violating its fundamental right to honor. Borrowers were included in a delinquency record cuando, after following a bankruptcy proceeding, the bank debt had been extinguished. La Sala considera que, communicating uncertain or disputed debts to records of defaulters, it commits a interference in the fundamental right to honor.

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. Raul, Ms.. Miracles were borrowers and D. Ruben guarantor of a mortgage loan signed with Banco Caixa Geral entity S.A.

They filed lawsuit in court seeking a declaration that its maintenance files solvency between July 2012 and June 2016 seriously affected his honor.

Stakeholders argued that the bank was aware that the debt to inclusion in the files concerned had been extinguished. This is because the property was awarded by foreclosure under liquidation plan approved by the bankruptcy of borrowers.

As a result of this declaration, They are requesting compensation 30.000 euros for each of the actors for moral damages and 50.000 to D. Raul for patrimonial damage.

La Caixa Geral entity opposed his claims. He alleged that the separate execution of mortgage debt assumed debt not extinguished despite the settlement plan. Secondarily he opposed the claim for damages.

The prosecutor interested estimating demand in terms of unlawful interference with the right to honor the plaintiffs. But, He opposed the payment of compensation in the amounts claimed.

Primera Instancia

The 19 October 2017, the Court of First Instance No. 1 Valladolid gave judgment dismissing the lawsuit.

The trustee, in compliance with art. 152.1 of the Bankruptcy Act, He presented in April 2013 a letter asking financial institutions about the state of foreclosure, because it could be understood canceled debt.

But, after evacuating the request, the administrator himself presented the monitoring report dated 24 June 2013. In it expressly recognized that existed in favor of such an ordinary bank loan in the amount of 100.296,87 euros.

He concluded the sentence "inclusion was justified in a report by the insolvency administrators and was based on a normative interpretation was not without foundation ".

Provincial Court

derecho al honorThe 17 May 2018 Section 1 of the Provincial Court of Valladolid gave judgment dismissing the appeal.

 The Court took the proven facts of the judgment of first instance.

For resolution, It hearing sets off a budget made conditional assessing the concurrence of the necessary requirements to appreciate the illegal interference in the personal sphere of the plaintiffs.

The data in the records of delinquent regarding the applicants were not in uncertain puridad. But they correspond to those which were reflected in the bankruptcy proceedings before the Commercial Court No. 1 Valladolid.

Hearing concluded that the performance of the bank merely reflect the information expressed in the bankruptcy procedure. It is implying that the same could not be considered erroneous, even though indeed it was for their lack of adaptation to the contents of judicially approved settlement plan.

Therefore, there was an error that could not be attributed to the demand and therefore, It entailed the full dismissal of the appeal.

Supreme Court

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

The appeal was filed infringement:

– los arts. 1, 4.1 and 29.4 de la LO 15/1999, of 13 December, Protection of Personal Data,

– los arts. 8.4, 38.1.a) and 41.1 of RD 1720/2007, of 21 December, amending Regulations implementing the LO was approved 15/1999,

– Article. 60.2 Act 44/2002, of 22 November Measures to Reform the Financial System.

Argumentative online resource that Banco Caixa Geral was not requested any modification of the list of creditors. Having asked, the resolution of the bankruptcy judge, accepting or not modification, give legal significance to credit. So, there are no credit recognized in the contest, He harbored nothing to Banco Caixa Geral to maintain a debt position for four years.

The inclusion of a doubtful debt in a register of defaulters also constituted a violation of the right to honor.

It was the bank that, at the slightest doubt veracity of the data should not communicate or should withdraw them. All without having to wait for a court decision that should be referred to and provided four years ago.

Therefore, Bank concurred responsibility because he tried and reported data inveraces.

The liquidation plan approved by court order stated that the debt is extinguished with the allocation of housing that guaranteed debt. Once housing allocated by the Bank, It was required for the canceled and derecognised, and this did nothing.

The fact that in a quarterly report that there is contemplase debt does not exempt the bank from compliance with the provisions of the Settlement Plan. The bank was the only responsible for the transfer of uncertain data (if only they were of dubious certainty) automated files and / or records of defaulters.

The prosecutor joined the appeal. He alleged that, for the purpose of modulating compensation, should be noted that:

– Plaintiffs, during the term of the notes, They were subject to insolvency proceedings. The existence of this procedure involved insolvent and a plurality of creditors. So that, the impact of correct inclusion of Bank credit in his honor had been more limited.

– The appellants were in the files of the Bank of Spain other notes outstanding risk of other entities.

– Regarding D. Raul, it appeared that they were denied financing operations due to appear as delinquent in files. And, after June 2013 there were more consultations in the file of defaulters.

The Supreme Court, Civil Division, in Case 27 September 2019 resolved the appeal filed.

The Chamber referred to the doctrine that debt should be, plus due and payable, cierta, namely, unequivocal and undeniable. So they had no place in the records uncertain debts, dudosas, no pacíficas o sometidas a litigio (STS 245/2019, of 25 April).

So, the hearing itself and the Court, its proven facts, reflected the uncertain nature of debt.

The Implementation Plan provided for a transfer of the asset to the creditor Bank. This subsisting considered part of debt. Insolvency Administration initially agreed with subsistence.

While, debtors disagreed and so I notified the creditor Bank founded burofaxes.

Being that, Finally, The Commercial Court considered that The loan had been extinguished at the time, accordance with the provisions of the implementation plan.

Accordingly, para la Sala, It was the dubious nature of the debt and therefore, the opposition of the actors was not capricious, but justified.

The financial institution, It should not include debt in the register of defaulters.

Conclusion

The inclusion of a doubtful debt in a register of defaulters is a violation of the right to honor.

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