Rb. Amsterdam - C/13/721372 / KG ZA 22-710

Rb. Amsterdam - C/13/721372 / KG ZA 22-710
Court:	Rb. Amsterdam (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 6(1)(f) GDPR Article 17(1) GDPR Article 21(1) GDPR
Decided:	18.08.2022
Published:	16.09.2022
Parties:	ELQ Portefeuille I B.V. Private Plaintiff
National Case Number/Name:	C/13/721372 / KG ZA 22-710
European Case Law Identifier:	ECLI:NL:RBAMS:2022:5286
Appeal from:
Appeal to:	Not appealed
Original Language(s):	Dutch
Original Source:	de Rechtspraak (in Dutch)
Initial Contributor:	MW

The District Court of Amsterdam ordered a lender to remove a data subject from a credit registry. The data subject's interest in erasure outweighed the usual legitimate interests of a credit registry because he represented a low financial risk.

English Summary

Facts

The data subject owned a house with his ex-wife that was financed with a mortgage from the controller. After the divorce, the data subject sold the house and retained a residual debt of €61,502.89.

The data subject then became depressed and was unable to work. In 2013 and 2014, he received a reduced income under the Dutch Sickness and Benefits Act. Following debt mediation, the data subject repaid €12,224.96 over three years. The controller wrote off the remaining €49,354.75, and the debt was discharged on October 5th, 2021.

On June 8th, 2022, the data subject was once again employed and with his current partner signed a purchase agreement for a new house. The couple had until September 5th, 2022, to come up with the necessary funds to complete the purchase, but they were denied a mortgage on the basis of the data subject's previous debt with the controller being registered in a credit registry.

On July 4th, 2022, the data subject requested that the controller remove his name from the debt registry so that he could obtain a new mortgage. On July 12th, 2022, the controller rejected the data subject's request. The data subject then filed a claim at the District Court of Amsterdam requesting that it compel the controller to remove his name from the debt registry.

Holding

The Court granted the data subject's request, ordering the controller to remove the data subject's name from the debt registry.

The legal basis for processing the data subject's personal data was Article 6(1)(f) GDPR: a credit registry protects the legitimate interests of consumers against excessive lending and protects lenders against borrowers who cannot or will not repay their loans. The Court took no issue with this legal basis, and the data subject did not dispute these legitimate interests.

That being said, the data subject still had the right to object to processing under Article 21 GDPR and have his personal data deleted from the registry under Article 17 GDPR so long as these legitimate interests did not override his right to erasure.

Weighing these interests, the Court considered that the data subject had run into financial problems not because of irresponsible borrowing or a pattern of excessive spending but because of unfortunate personal circumstances. Furthermore, he had taken responsibility for paying off his debts to the extent that he was able, had returned to stable employment, and was seeking a loan to purchase a house within his current means. The data subject thus represented a low financial risk and had a significant interest in taking out a mortgage.

While the controller had written off a substantial amount of the data subject's debt, the Court found that this single circumstance could not be decisive. It held that the interest of the data subject in moving on with his life and buying a new home with a new partner outweighed the controller's general interest in keeping the data subject's debt registered for the usual span of time.

The controller had agreed to comply with the Court's judgment, so no penalty was attached to the decision. However, the controller was ordered to the data subject's legal fees, estimated at €1,461.18.

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English Machine Translation of the Decision

The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.

verdict

COURT OF AMSTERDAM

Private law division, civil preliminary relief judge

case number / roll number: C/13/721372 / KG ZA 22-710 EAM/LO

Judgment in summary proceedings of 18 August 2022

in the case of

[plaintiff]

residing at [residence] ,

plaintiff by summons on abbreviated notice of August 11, 2022,

lawyer mr. C.B.G.M. Fooling in Tilburg,

against

the private company with limited liability

ELQ PORTFOLIO I B.V.,

Based in Amsterdam,

defendant,

lawyer mr. E.J. Luten in Rotterdam.

The parties will hereinafter be referred to as [claimant] and ELQ.

1 The procedure

At the hearing on August 16, 2022, [claimant] explained the claims as described in the summons. ELQ has filed a defence. [plaintiff] submitted written documents and both parties spoke on the basis of a pleading note.

The following were present at the hearing: [claimant] and his partner, [name] , with mr. Foolen, and on the side of ELQ mr. Luten.

Judgment is set today.

2 The facts

2.1.

[claimant] had a house with his ex-wife, which was financed by means of a mortgage loan from ELQ. After the divorce, the house was sold with a residual debt of € 61,502.89.

2.2.

As a result of the divorce, [plaintiff] developed mental health problems. As a result, he was no longer able to perform his work as a driver and in 2013 and 2014 received a benefit under the Sickness Benefits Act, which resulted in less income.

2.3.

The debt to ELQ then amounted to € 58,982.88. By means of debt mediation, [claimant] made an arrangement with ELQ in 2018. [claimant] has repaid € 12,224.96 over a period of three years, after which he was granted final discharge on October 5, 2021. The remaining amount of € 49,354.75 has been written off by ELQ.

2.4.

As a result of the final discharge, ELQ has registered a special code 3 in the CKI (Central Credit Information System) of the BKR (Bureau Krediet Registration), which stands for the situation that an amount has been debited by the bank. The end date is 5 October 2021.

2.5.

On June 8, 2022, [claimant], together with his partner, [name], signed a purchase agreement for the house at [address]. The purchase price is € 300,000. The term of the resolutive conditions has been extended until September 5, 2022.

2.6.

By letter dated 9 June 2022, [claimant] received a message from a.s.r. that his mortgage application is not being processed because of the BKR registration.

2.7.

In an email dated 28 June 2022, Triodos Bank informed [claimant] that a mortgage with Triodos is not possible if there is a BKR registration.

2.8.

On July 4, 2022, CoderingVrij made a request to ELQ on behalf of [claimant] to remove the BKR registration.

2.9.

In a letter dated 12 July 2022, ELQ rejected [plaintiff]'s removal request.

2.10.

[claimant] still had two registrations with the BKR, Rabobank and Kredietbank West-Brabant, for small amounts, which have since been removed by Rabobank and Kredietbank West-Brabant.

3 The Dispute

3.1.

[claimant] claims – in summary – provisionally enforceable by judgment:

to condemn ELQ to remove or have the BKR registrations removed;

on pain of a penalty;

ordering ELQ to pay the costs of the proceedings and the subsequent costs, to be increased by the statutory interest.

3.2.

ELQ defends itself.

3.3.

In so far as relevant, the arguments of the parties are discussed in more detail below.

4 The assessment

Assessment framework

4.1.

Personal data of [claimant] were processed during the BKR registration. Article 6 paragraph 1 of the General Data Protection Regulation (GDPR) provides that the processing of personal data is only lawful if and insofar as at least one of the conditions mentioned in that article is met. The question of whether the processing of personal data in the CKI of the BKR is lawful must be assessed on the basis of the criterion of Article 6 paragraph 1, preamble and under f GDPR: the processing must be necessary for the representation of the legitimate interests of the controller (in this case ELQ) or of a third party, and the interests or fundamental rights and freedoms of the data subject that require the protection of personal data (in this case [claimant]) may not outweigh those interests.

4.2.

The data subject whose personal data are registered with the BKR, in that case [claimant], has the right to erasure as referred to in Article 17 of the GDPR and the data subject has the right of objection as referred to in Article 21 of the GDPR.

4.3.

In principle, those who wish to have their data erased must follow Article 35 of the UAVG and submit a petition to the court within six weeks of receiving the negative response from the controller. In this case, however, that cannot be required of [the claimant]. There is no time for this, in view of the term for invoking the financing condition in the purchase agreement concluded by him.

4.4.

The purpose of the credit registration performed by the BKR is twofold: on the one hand, it serves to protect consumers against excessive lending, and on the other to protect credit providers against borrowers who have shown that they cannot (or cannot) repay their loan.

4.5.

In the assessment, it is important in the first place whether the events to which the codes relate (the arrears, the claim and the write-off of the entire claim) actually occurred and whether the registrations were made correctly. [claimant] has not disputed that the codings were correctly registered at the time. The importance of registration is therefore given, in view of the objective of the BKR.

4.6.

The lawsuit focuses on answering the question whether it is justified in the given circumstances that the registrations are maintained until the five-year term (included in the General Regulations CKI of the BKR) has expired, in this case in October 2026. It should be taken into account that pursuant to Article 21(1) of the GDPR, the processing of personal data must be discontinued in the event of an objection, unless there are compelling legitimate grounds for the processing which outweigh the interests, rights and freedoms of the person concerned. the person concerned.

4.7.

The assessment will take place 'ex nunc', that is to say on the basis of the current (known) facts and circumstances.

What does this mean for this case?

4.8.

The cause of the backlog and coding is an unfortunate coincidence. Due to the divorce, [claimant] and his ex-wife had to sell the house and they were left with a residual debt. Subsequently, the claimant developed serious psychological complaints. He suffered from depression and was given medication for it, which prevented him from carrying out his work as a driver. He ended up under the Sickness Benefits Act and therefore received less income.

After his period of illness, [plaintiff] had various jobs through an employment agency and he repaid insofar as his income allowed this. Since 2018, he has an employment contract for an indefinite period of time with the municipality of Breda, where he has an income of € 43,102.50 gross per year. [claimant] did not incur any new debts during the debt mediation period of three years. He has a new partner, with whom he also wants to have children. They now live in a two-room apartment, in a neighborhood where there is a lot of nuisance from loitering youths who make noise all night. They would therefore like to move with a view to the desired family expansion.

[plaintiff] therefore ran into financial problems once as a result of an unfortunate combination of circumstances, which he could not do much about. After all, the debts were not created by taking out irresponsible loans or by an excessive spending pattern, but by the forced sale of the matrimonial home at a very unfavorable moment. [plaintiff] has shown in the past four years that he has taken responsibility to pay off his debts (to the extent that he was able to do so), that he does not spend irresponsibly, and that he leads a stable life, with a steady job and a new partner. They can finance the house that [claimant] and [name] have bought in view of their incomes, according to a test performed by a mortgage intermediary (exhibit 11). ELQ has emphasized that it has written off a substantial amount, but that single circumstance cannot be decisive. In this case, the interest of [claimant] to move on with his life and buy a new home must therefore outweigh the general interest of ELQ to maintain the registration for the full five years. In view of the foregoing, the risk that [plaintiff] will run into problems again is limited.

4.9.

The conclusion is that the claim of [claimant] will be allowed within the period to be stated. Now that ELQ has promised to comply with any sentencing judgment, it is not considered necessary to attach a penalty payment to the conviction.

4.10.

ELQ will be ordered to pay the costs of the proceedings as the unsuccessful party. The costs on the part of [claimant] are estimated at:

- summons € 131.18

- court fee 314.00

- lawyer's salary 1,016.00

Total € 1,461.18

4.11.

The subsequent costs will be allocated in the manner stated in the decision.

5 The decision

The preliminary relief judge

5.1.

condemns ELQ to remove the codes on contract number [number] or have them removed from the CKI of the BKR within two working days after service of this judgment,

5.2.

orders ELQ to pay the costs of the proceedings, estimated on the part of [claimant] to date at € 1,461.18, plus the statutory interest on this amount from fourteen days after this judgment until the day of full payment,

5.3.

orders ELQ to pay the costs incurred after this judgment, estimated at € 163 for lawyer's salary, to be increased by € 85 and the costs of the writ of service if this judgment is served, to be increased by the statutory interest thereon with effect from fourteen days after this judgment until payment,

5.4.

declares this judgment provisionally enforceable so far,

5.5.

rejects the more or otherwise advanced.

This judgment was rendered by mr. E.A. Messer, judge in preliminary relief proceedings, assisted by L. Oostinga, clerk of the court, and pronounced in public on August 18, 2022.1

1 type: LO coll: MA