Rb. Amsterdam - C/13/693399 / HA RK 20-337
| Rb. Amsterdam - C/13/693399 / HA RK 20-337 | |
|---|---|
 | |
| Court: | Rb. Amsterdam (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 6(1)(e) GDPR Article 6(1)(f) GDPR Article 21 GDPR Article 35(2) GDPR Article 79 GDPR Article 35(2) UAVG Article 4:32 of the Dutch Financial Supervision Act (Wft) Article 4:34 of the Dutch Financial Supervision Act (Wft) |
| Decided: | 22.04.2021 |
| Published: | 06.07.2021 |
| Parties: | Unknown applicant COÖPERATIEVE RABOBANK U.A |
| National Case Number/Name: | C/13/693399 / HA RK 20-337 |
| European Case Law Identifier: | ECLI:NL:RBAMS:2021:3161 |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | Dutch |
| Original Source: | Rechtspraak (in Dutch) |
| Initial Contributor: | Kave Noori |
The District Court of Amsterdam ordered Rabobank to request the deletion of data regarding the mortgage debt of a data subject from the Dutch central credit information system. The Court held that where a data subject objects to the processing of data on such registers, it is insufficient for banks to refer in general terms to their legal obligation to participate in a credit registration system, and the data subject's individual circumstances must be considered.
English Summary
Facts
Whenever a consumer in the Netherlands obtains credit, the debt must be registered in a central register of the foundation Bureau Krediet Registratie (BKR).
The case at hand involved a person with whom the bank, Rabobank, had made a special agreement. He was to pay part of a loan and was forgiven the repayment of a remaining part of the loan. After he had paid the amount agreed with the bank, Rabobank nevertheless reported him to the BKR register with a special code. This prevented him from taking out new loans, even though he was in a good financial situation. For this reason, he took the matter to court.
The claimant had two mortgages on two homes with his ex-partner. Following the couple's divorce, they were forced to sell both houses. After the houses had been sold in 2015 and 2016, a residual debt of €119,979 remained. The partners were jointly responsible for the full repayment of the debt.
Almost immediately after the sale of the first home, the applicant voluntarily started repaying the remaining debt at the rate of €500 per month. In November 2015, the applicant's 7 monthly repayments totalled €3500. In February 2017, Rabobank sent a letter to the applicant. The bank had calculated that the applicant could repay €1486 per month, but that this would not enable him to repay the entire debt within 5 years. The bank offered him alternative payment models; if he accepted the special arrangement, he would not have to repay the entire remaining debt.
The applicant and the bank agreed that the applicant would pay €1388.89 per month for 36 months (€50,000 in total) and that the bank would pay €62,015.83. It was also agreed that the €3500 that the applicant had already paid would be deducted from the amount that the applicant owed. The applicant fully complied with the payment plan and repaid the debt between September 2017 and May 2020.
On 29 May 2020, Rabobank registered the applicant in the BKR's Central Credit Information System with a special code of 3. This code indicates that a previous loan had been written off by €250 or more. The code would be visible for 5 years and would disappear after 29 May 2025.
The applicant objected to the registration with code 3 as early as 8 May 2020. On 5 June, Rabobank gave a negative response to the objection and stated that it was non-negotiable that it would report the applicant with special code 3.
The applicant filed a new objection on September 4, 2020, arguing that there were new facts that needed to be considered. However, Rabobank again rejected the objection and gave reasons for its decision. Rabobank wrote that it had looked at the new information and weighed the various interests. Nevertheless, it concluded that the applicant was not eligible for a deletion of his Code 3.
The applicant made a request to the district court of Amsterdam to force Rabobank to comply with his request.
Dispute
Was the case admissible?
Rabobank held that the application for the order should be dismissed. Rabobank referred to Article 35(2) of the Dutch Act implementing the GDPR (UAVG), which provides that an interested party (i.e. data subject) who disagrees with a decision of a non-administrative body in response to a person exercising their rights under Articles 15-22 GDPR may file a civil dispute application within six weeks for a court to grant or reject the application.
However, the time limit does not apply if the non-administrative body responds later than 6 weeks. In the present case, Rabobank stated that the applicant's first request was made on 12 December 2019 and that it responded only one day later. Thereafter, the applicant had submitted identical applications several times. Rabobank argued that it cannot be the intention of Article 35(2) of the GDPR Implementation Act (UAVG) that a data subject can circumvent the six-week period by submitting several identical requests if no new facts or circumstances have been brought forward.
The applicant, on the other hand, believed that his most recent petition, filed on September 4, 2020, rather than the one filed on May 8, 2020, should govern the deadline. This was because Code 3 was added to the registry after he filed the objection in May 2020. In addition, the applicant believed that his desire to be able to lease a car was a new circumstance that warranted a new assessment.
The BKR Registration
The applicant sought an injunction to cause Rabobank or BKR to remove Code 3. The applicant also requested that the injunction be accompanied by the threat of a penalty payment of €1,000 per day, up to a total of €30,000 for non-compliance, commencing 3 days after service of the injunction.
The applicant claimed that the Code 3 registration was unlawful. He argued that the repayment agreement, which the applicant had complied with, had the effect of releasing him from any further liability for the unpaid loan. In addition, the claimant objected that he had not been informed that code 3 had been assigned to him.
Additionally, the applicant claimed that Rabobank was wrong not to remove the special code. He claimed that he had a good payment history and that the bank never had any problems with his repayment. He claimed that the remaining debt was due to a special, unique situation that he had to sell his house after a divorce.
Further, he claimed that the code prevented him from getting a new mortgage on his home and from leasing a business vehicle even though he had a good financial situation. The applicant stated the consequences of keeping the code on him was disproportional to the origins of why he had a Code 3 put on him.
Holding
Was the case admissible?
First, the court commented on how repeated requests under Article 35(2) of the Act Implementing the GDPR (UAVG) should be treated. In this regard, the court clarified that it was not the intention of the law that the filing of repeated requests would allow for a new deadline under which a request can be filed with a court. At the same time, the court noted that Article 21 GDPR states that data subjects have the right to object and that this right can be exercised at any time, including more than once. Therefore, the court concluded that an interested party may file multiple applications under Article 35 of the GDPR Implementation Act (UAVG) as long as it does not lead to an abuse of procedural law.
As to the admissibility of the application, the court held that the application was admissible. The reason for this was that in its last decision Rabobank had taken into account the new facts and circumstances that the applicant had put forward regarding the interest in a leased vehicle when rejecting the application. Since Rabobank took the new circumstances into account and did not express in its reply of 13 October 2020 that it considered this to be a repeated request which it would not comply with, the applicant had six weeks after 13 October 2020 to file an appeal. The complaint was therefore admissible.
BKR Registration
Rabobank and other credit providers are required to participate in a credit reporting system pursuant to Article 4:32 of the Dutch Financial Supervision Act (Wft). In addition, under Article 4:34 of the Financial Supervision Act (Wft), the credit provider is required to assess the consumer's financial standing in order to determine whether it would be responsible to grant the credit to that person.
The court then looked at the legislative history of the law and found that its purpose was twofold. First, the regulation intended to protect consumers from over-indebtedness, and second, to protect lenders from borrowers who cannot repay. Further, the court considered the legal basis for credit scoring under the GDPR. The court found that under Article 3(4) of its General CKI Rules (Algemeen Reglement CKI) the BKR processes personal data for legitimate interest under Article 6(1)(f) GDPR. The court concluded that credit providers therefore also rely on legitimate interest. In this case, the court clarified that the legitimate interests are those of the consumer, BKR and its business customers.
Furthermore, the court clarified that the applicant has a right to object to the processing of his personal data under Article 6(1)(e) GDPR and Article 6(1)(f) GDPR. The court stated that if a data subject objects to data processing, Rabobank must comply with that request. Unless it can demonstrate compelling legitimate grounds which override the interests and rights of the data subject.
The court also concluded that Article 79 GDPR and Article 35 of the Dutch Act implementing the GDPR (UAVG) provide the data subject with access to effective remedies if the controller does not comply with the objection.
The court went on to state that if it has such a case before it. The court will assess whether the controller has made a prima facie case (made it probable) that the interest of protecting consumers from over-indebtedness and protecting credit providers outweighs the interests, rights and freedoms of the data subject in the specific case.
Furthermore, the court clarified that it would not be sufficient for Rabobank to refer in general terms to its legal obligation to participate in a credit registration system or the social importance of such a system. It would also not be sufficient for Rabobank to refer to the General Regulations of the CRI, as it is not a law. The court clarified that the General Regulations of the CRI are internal rules that only apply to the BKR and the banks. Nevertheless, the court considered the General Regulations as a good starting point and a document that gives legal certainty. However, it stated that it might be necessary to deviate from them when it comes to the objection of a data subject.
The court went on to state that Article 21 GDPR requires Rabobank to respond to the objection by assessing the circumstances in relation to the specific situation of the data subject. The court then assessed the applicant's situation in detail. The court indicated that the remaining debt was a result of the divorce and the foreclosure of the houses. Further, the court noted that the applicant had no irregularities in paying the mortgages and that he began paying off the remaining debt on his own initiative, even before the second house was sold and the total amount of the remaining debt was known.
Further, the court gave weight to the fact that the applicant and the bank had agreed to a special repayment arrangement. The applicant had fully complied with the repayment plan, after which he no longer owed any money to Rabobank.
Furthermore, the court considered that the applicant had shown that he was in a financially stable position, taking into account how much he earned through his business and how much his current partner earned.
Finally, the court also found it sufficiently plausible that Code 3 was an impediment to the applicant. It prevented the applicant from buying an apartment or renting an apartment more cheaply. The court also found it plausible that the code was a business obsticle that prevented the applicant from leasing a car.
The court held that there was no credit risk in this case. The court held that there was no need to protect the applicant from over-indebtedness, nor was there a need to protect credit providers from a customer who could not repay their loans. The court concluded that society's interest in responsible lending did not outweigh the interests of the applicant.
The court ruled that Rabobank must request the deletion of Code 3 and Code A from the applicant's file in the BKRs register within 48 hours of notification of the decision. If Rabobank failed to comply, it would be fined €1000 per day, counting three days from service of the decision. However, the maximum fine would be €30,000. The court also ordered Rabobank to pay the applicant's legal fees.
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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.
Body
Court of Amsterdam
Date of judgment
22-04-2021
Date of publication
06-07-2021
Case number
C/13/693399 / HA RK 20-337
Jurisdictions
Civil rights
Special characteristics
First instance - single
decision
Content indication
Applicant admissible despite reminder requests. Request removal of BKR registration (code 3) granted. Sufficiently demonstrated financial stability. It is likely that the BKR registration forms an obstacle to buying a home and leasing a car.
Locations
Rechtspraak.nl
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Statement
decision
COURT OF AMSTERDAM
Private Law Department
case number / claim number: C/13/693399 / HA RK 20-337
Order of April 22, 2021
in the case of
[applicant]
,
residing at [residence] ,
applicant,
lawyer mr. C.B.G.M. Fooling in Tilburg,
against
the cooperative
COOPERATIVE RABOBANK U.A.,
located in Utrecht,
defendant,
lawyer D.S. Volleberg in Leiden.
The parties will hereinafter be referred to as [applicant] and Rabobank.
1 The procedure
1.1.
The course of the procedure is apparent from:
- the petition of 24 November 2020, with annexes,
- the order of this court of January 28, 2021, in which an oral procedure is provided,
- the official report of the oral hearing held on 5 March 2021, together with the documents stated therein.
2 The facts
2.1.
[Applicant] and his then wife took out two mortgage loans with Rabobank to finance a home at [address 2] and a home at [address 1]. They were jointly and severally liable for the fulfillment of the obligations arising from the loan. During the divorce process, the homes were sold in October 2015 and August 2016 respectively, leaving a residual debt of €119,979.24 in total.
2.2.
Since almost immediately after the sale of the first home in 2015, [applicant] has voluntarily transferred € 500 per month to Rabobank to repay the residual debt. As of November 2015, [applicant] has made seven monthly payments of €500, totaling €3,500.
2.3.
In a letter dated 17 February 2017, Rabobank wrote to [applicant] the following, insofar as relevant:
“On the basis of the information we have received from you, we have calculated that you can repay us € 1,486.11 per month. (…)
Based on our calculation, you cannot repay the total residual debt within five years. That is why you can choose from one of the following payment schemes, whereby you may not have to repay the entire residual debt.
(…)
Do you fully comply with this arrangement and do you still have a residual debt left at the end? Then you will be released from joint and several liability for the unpaid amount. This means that you no longer have to repay the unpaid part of the residual debt to us.
(…)
Notification Bureau Credit Registration (BKR)
We report the residual debt and agreements according to the guidelines of BKR. For more information, please refer to www.bkr.nl.
(…)”
2.4.
Following the letter of 17 February 2017, Rabobank and [applicant] corresponded by e-mail. By letter dated 20 March 2017, Rabobank proposed to [applicant] a new payment arrangement, in which the amounts already transferred by [applicant] on his own initiative to a total of € 3,500 have been deducted. Furthermore, the letter of 20 March 2017 has the same content as the letter of 17 February 2017.
2.5.
On September 4, 2017, the parties agreed that [applicant] would pay an amount of € 1,388.89 per month, for a period of 36 months, against final discharge. [Applicant] transferred amounts to Rabobank over a period from 4 September 2017 to 1 May 2020 and the payment arrangement has been fully complied with.
2.6.
Rabobank has paid an amount of € 62,015.83 on the total residual debt.
2.7.
In a letter dated 8 May 2020, CoderingVrij lodged an objection with Rabobank on behalf of [applicant] against placing special code 3 in the BKR. [applicant] has argued that this BKR registration will hinder him in obtaining a mortgage loan for buying a home.
2.8.
On 29 May 2020, [applicant] was registered with special code 3 with regard to the mortgage debts with Rabobank in the Central Credit Information System (hereinafter: the CKI) of the BKR with the special code 3. This coding means that there has been a write-down of an amount of €250 or more. If debiting takes place against final discharge, the end date of the agreement is stated at the same time as the coding. The credit has been canceled as of May 29, 2020. The code 3 listing in the CKI is therefore visible until May 29, 2025.
2.9.
On June 5, 2020, Rabobank responded negatively to the objection made by CoderingVrij. In it, Rabobank indicated that reporting special code 3 is non-negotiable.
2.10.
In a letter dated September 4, 2020, CoderingVrij on behalf of [applicant] requested Rabobank to remove the BKR registration in the name of [applicant]. To that end, [applicant] argued that there is a new fact that must be taken into account in the weighing of interests.
2.11.
By letter dated 13 October 2020, Rabobank rejected [applicant]'s request with reasons. Rabobank has, among other things, written that it had weighed up the interests involved and had to conclude on that basis that the registration of [applicant] does not qualify for early removal.
3 The request and the defence
3.1.
[applicant] requests the court to order, by provisional order, to order Rabobank to remove or have the BKR registration removed from the CKI, on pain of a penalty of € 1,000 for each day from the third day after the decision has been served, up to a maximum of € 30,000 has been reached, with Rabobank being ordered to pay the costs of the proceedings and subsequent costs, plus the statutory interest.
3.2.
To this end, [applicant] states - briefly summarized - that Rabobank wrongly proceeded to the BKR registration. [applicant] and Rabobank have agreed a payment arrangement that [applicant] has complied with in full. Part of that payment arrangement was that [applicant] would then be released from joint and several liability and that he no longer had to pay the unpaid part of the residual debt. Something that does not have to be paid can also not be discharged, so that the special code 3 is illegal. Moreover, [applicant] was never informed of the placement of this special code.
3.3.
[Applicant] further states that Rabobank wrongly refused to remove the BKR registration from the CKI. The residual debt arose due to a one-off and special situation, the need to sell the house due to the divorce. There has never been any question of non-payment and [applicant] has very good payment morals. The BKR registration prevents him from obtaining a mortgage loan for a home and from being able to lease a business car, despite the good financial position he is in. The fact that [applicant] is now unable to obtain a mortgage loan and a lease car is not proportional to the origin of the codes. His interest in removing the registration outweighs the interests in maintaining it, according to [applicant].
3.4.
Rabobank defends itself. She argued - briefly stated - that the BKR registration is correct and that it has not become apparent that there are any special circumstances or necessary interests of [applicant] on the basis of which it should be removed.
3.5.
In so far as relevant, the arguments of the parties are discussed in more detail below.
4 The assessment
receptiveness
4.1.
Rabobank has put forward as the most far-reaching defense that [applicant]'s application should be declared inadmissible. To this end, she submits the following. A request for the removal of a BKR registration must be submitted to the competent court within six weeks after Rabobank's rejection, pursuant to Article 35 of the Implementation Act of the General Data Protection Regulation (UAVG). On December 12, 2019, [applicant] submitted the first request for non-placement or removal of the coding. Rabobank rejected this request on 13 December 2019. Subsequently, [applicant] repeated his requests, most recently on 8 May 2020 and 4 September 2020, Rabobank also rejected these requests on 5 June 2020 and 13 October 2020 respectively. By repeatedly making identical removal requests, [applicant] tries to save the statutory deadline. That cannot be the intention of article 35 paragraph 2 UAVG. [Applicant]'s request of 4 September 2020 and Rabobank's subsequent rejection of 13 October 2020 should not be taken as the basis for determining the six-week period. This concerns a repeated request in which no new facts and circumstances have been put forward, only a new interest that is otherwise irrelevant. The six-week period to submit a petition started on June 5, 2020. This means that the petition had to be submitted before 17 July 2020, which has not happened. The term has therefore expired, according to Rabobank in each case.
4.2.
[applicant] takes the position that his last request of 4 September 2020 should be used as the starting point and not his previous request of 8 May 2020. The reason [applicant] states that the special code 3 was placed in the intervening period and that this is indeed a new fact. Moreover, the interest of [applicant] with regard to acquiring a lease car is a new interest that justifies a new assessment. Since Rabobank did not respond to its request of September 4, 2020, i.e. only on October 13, 2020, there is no time limit for submitting the petition. Even if that were the case, this period has still been met because the petition was submitted on November 24, 2020.
4.3.
The court states first and foremost that a reasonable interpretation of article 35 paragraph 2 UAVG entails that it is not the intention that by submitting repeated requests it can be achieved (again) that a new term for submitting a petition to the court will start. walk. The legal system also serves to prevent the controller from being summoned roughly or for a long time after he has refused the request. In this regard, however, it should be borne in mind that the request under Article 21 GDPR can be made at any time – and therefore several times. It follows from this that the interested party can also submit an Article 35 UAVG request several times, except for abuse of (procedural) law.
4.4.
The court is of the opinion that [applicant]'s request is admissible. Unlike Rabobank, the court takes the request for removal of the BKR registration of [applicant] dated September 4, 2020 and Rabobank's negative response of October 13, 2020 to answer the question whether his request is admissible. Apart from the difference in the requests of 8 May 2020 (request for non-placement of code 3 in the BKR) and 4 September 2020 (request for removal of BKR registration), Rabobank did not respond to the request in its response of 13 October 2020. position that it concerns a repeated request from [applicant] and that for that reason it will no longer process the request. On the contrary, Rabobank reassessed the content of the request and rejected it, taking into account the newly submitted interest of [applicant], namely the lease car. [Applicant] could therefore rely on the fact that he could submit a petition to the court within six weeks afterwards. Because [applicant] is admissible in his request, the content of the request will be assessed.
BKR registration
4.5.
Under Article 8 of the European Consumer Credit Directive (2008/48/EC), Member States shall ensure that the creditor assesses the consumer's creditworthiness before concluding the credit agreement or increasing the credit limit on the basis of sufficient information which, where appropriate case, has been obtained from the consumer and, where necessary, on the basis of a consultation of the relevant database (credit registration).
4.6.
Pursuant to Section 4:32 of the Financial Supervision Act (Wft), credit providers, such as Rabobank, are obliged to participate in a credit registration system. This credit registration is performed by the BKR. The credit providers are also bound by the General Regulations of the CKI (hereinafter: AR). Pursuant to Section 4:34 Wft, before concluding a credit agreement or increasing the credit limit, in the interests of the consumer, the credit provider must obtain information about the consumer's financial position and assess, in order to avoid excessive lending to the consumer, whether of the agreement or the significant increase is justified. If it is irresponsible with a view to over-crediting the consumer, the credit provider may not conclude the agreement or increase the amount.
4.7.
According to the legislative history, the purpose of the credit registration is twofold: on the one hand, 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. Payment arrears or other irregularities that arise during the term of a credit agreement are stated in the CKI with special codes.
4.8.
In the context of participating in that system of credit registration, the credit providers process personal data. The General Data Protection Regulation (EU) 2016/679 (GDPR) applies to this. According to Article 3(4) of the AR, the processing by the BKR – and therefore also by the credit providers – of personal data is lawfully based in Article 6(1)(f) of the GDPR, because the processing is necessary for the representation of the legitimate interests of the consumer. BKR and its business customers.
4.9.
[Applicant] can object to the processing of his/her personal data on the basis of Article 21(1)(e) or (f) GDPR on the basis of Article 21(1) of the GDPR. The controller (in this case Rabobank) must honor the objection, unless it demonstrates compelling legitimate grounds for the processing that outweigh the interests, rights and freedoms of the data subject. If the controller does not honor the objection, as here, the data subject can request an effective remedy from the court if necessary (Article 79 GDPR and Article 35 UAVG). The court will assess whether the controller has made it plausible that his compelling legitimate interests (in this case the dual purpose of the credit registration: protecting the consumer against excessive credit and warning other credit institutions) in this specific case outweigh the interests or the fundamental rights and freedoms of the data subject (Recital 69 GDPR).
4.10.
This assessment must be made on the basis of the facts and circumstances known at the time of the assessment, so that facts and circumstances that only occurred after registration can be included. Such registration and enforcement must comply with the principles of proportionality and subsidiarity. This entails that the infringement of the interests of the data subject ([applicant]) may not be disproportionate in relation to the purpose to be served by the processing (principle of proportionality) and that this purpose should not, where reasonable, relate to another, less for the data subject. can be achieved adversely (principle of subsidiarity). For this, reference is made to the judgment of the Supreme Court of 9 September 2011 (ECLI:NL:HR:2011:BQ8097). The applicable GDPR does not intend to change this. Even if the data processing is permitted in principle and the processor has complied with the AR, this does not mean that the weighing of interests can be omitted.
4.11.
The controller (Rabobank) will have to demonstrate that in this specific case its interests (as described above under 4.9) are given more weight than the interests of the data subject ([applicant]). It is not sufficient to refer in general to the legal obligation to participate in a credit registration system or to the social importance thereof. Nor is it sufficient to invoke the rules of the AR (for example, that a code remains visible for five years); the AR is not a statutory regulation and, in principle, it only applies between the BKR and the affiliated financial institutions. These rules, which have been published, do, however, provide anyone with insight into the way in which the BKR and the affiliated financial institutions wish to carry out the task assigned to them in Section 4:32 Wft. To that extent, they contribute to legal certainty and credit providers can use this as a starting point, but depending on the outcome of the test referred to in 4.9, a credit provider will have to deviate from this if necessary.
4.12.
In the context of a request pursuant to Article 21 GDPR, the credit provider must respond to the grounds for objection submitted by the data subject – substantiated to the best of his ability – related to his specific situation. Circumstances that may play a role in the assessment of the objection in the case of a code 3 are, for example: - the amount of the debt that has been forgiven; - whether any payment arrangement has been properly complied with; - the reason for (the origin and continued existence of) the arrears and the degree of culpability in this regard; - the current financial situation of the person concerned (including income) and if this is stable again, how long has it been; - whether the person concerned has other debts; - whether there has been a serious (structural or otherwise) default; - the circumstance that the person concerned cannot wait with the loan (for example for the purchase of a home) until the five-year term has expired (for example due to family and living situation); - the passage of time since the repayment of the debt.
4.13.
Rabobank must assert a compelling interest in maintaining the BKR registration. Rabobank has pointed out the following. [Applicant] has not properly fulfilled his payment obligation. For example, he made no payments over the period from 1 November 2017 to 1 February 2018, which has resulted in a arrears. In addition, [applicant] informed Rabobank too late and incorrectly about his income situation, which is necessary for Rabobank to redetermine the monthly amount to be paid by [applicant] annually. It is also important that a substantial amount has been waived. Moreover, it is not in the interest of [applicant] to have the BKR registration removed, according to Rabobank.
4.14.
In the opinion of the court, Rabobank has insufficiently demonstrated in this case that the interest in continuing the BKR registration with codes A and 3 carries more weight than the interest of [applicant] in its removal. This is due to the following special circumstances.
4.15.
It is established that the cause of the residual debt of [applicant] that arose in 2015 and 2016 is the direct result of the divorce and the forced sale of the homes as a result. Prior to the sale of the homes, there were no irregularities in the payments of the mortgage loan: [applicant] had no arrears or debts with Rabobank up to that point. Almost immediately after the sale of the first home in 2015, [applicant] started paying off the residual debt on his own initiative, even before the second home had been sold and the parties had known the total residual debt. Subsequently, the parties agreed on a payment arrangement, which [applicant] duly complied with and at the end of which there was no longer any debt to Rabobank. The fact that [applicant] may have fully complied with the scheme with minor hiccups in the payment terms, as stated by Rabobank and contradicted by [applicant], does not change the foregoing.
4.16.
The court is of the opinion that [applicant] has sufficiently demonstrated that he is financially stable. He explained that he has been receiving an income from [applicant's company] since 2008. In 2018, a net turnover of € 52,296 was obtained. [applicant] also has a partner who receives an income from permanent employment. Together they receive an annual income of approximately € 100,000 gross per year. The rent for the private rental home in which they live together is €1,135.29. It has not become apparent that [applicant] has (had) other (problematic) debts, apart from a payment arrangement with the tax authorities.
4.17.
Furthermore, it is sufficiently plausible that the codes form an obstacle to the purchase of a home or the cheaper renting of a home. After all, Rabobank explained at the hearing that although it is not impossible to obtain a mortgage loan with a code of 3, it is difficult in practice. It also appears from the rejections submitted by [applicant] from a number of lenders that they do not wish to provide him with a mortgage. [Applicant] has argued that he cannot currently invest in himself by means of an owner-occupied home, nor can he save and build up a pension. After the term of the BKR registration, he is also older, which affects his borrowing capacity. Rabobank has argued that obtaining a mortgage or renting a home more cheaply is not an important interest since [applicant] already owns a home and his current income is sufficient to pay the rent. In the opinion of the court, this does not alter the fact that the BKR registration unnecessarily hinders [applicant]'s freedom to live how and where he wants to, for which there is no justification from the point of view of the joint lenders.
4.18.
It is also plausible that the BKR registration forms a business obstacle for [applicant] because it means he can no longer lease a car. [Applicant] has explained that his current lease contact will end in March 2021 and that it is not possible to extend the current contract or purchase a new business lease car because of the BKR registration. According to [applicant], buying a second-hand car leads to higher costs and is therefore not attractive, while traveling by public transport is not an option because he travels frequently for his work and must be mobile. Rabobank has disputed this and has further argued that leasing a car is not a special circumstance on the basis of which the BKR registration must be removed. In this respect, too, the court is of the opinion that [applicant] is unnecessarily restricted in his freedom by the BKR registration, for which there is no justification from the point of view of the joint lenders.
4.19.
Under these circumstances, contrary to what Rabobank has argued, there is currently no question of a credit risk against which lenders must be protected, nor does [applicant] need to be protected against excessive lending. Contrary to Rabobank's opinion, it cannot be said that the interests of socially responsible services in the financial field prevail over the interests of [applicant], despite the fact that only a short period has elapsed since the BKR registration in May 2020.
4.20.
This means that the request of [applicant] will be granted. In view of this judgment, the position of [applicant] that the registration in the BKR was wrongly placed does not require further discussion. This also applies to the question of whether Rabobank wrongly did not include spousal maintenance in the calculation of the payment arrangement, as [applicant] argued and denied Rabobank, because this does not lead to a different decision.
4.21.
The requested periodic penalty payments can be awarded as determined below under the decision.
4.22.
Rabobank will be ordered to pay the costs of the proceedings as the unsuccessful party. The costs on the part of [applicant] are estimated at:
- court fee € 304,00
- lawyer's salary € 1,206.00 (2 points × rate € 563.00)
Total €1,510.00
4.23.
The claimed subsequent costs will be allocated in the manner as stated below under the decision. The statutory interest claimed on the legal costs and subsequent costs can also be awarded, in the manner as stated below under the decision.
5 The decision
The court
5.1.
orders Rabobank to remove the (special) codes A and 3 in the CKI of the BKR in the name of [applicant] within 48 hours after notification of this decision, on pain of a penalty of € 1,000 for each day from the third day after the decision has been served, that Rabobank does not comply with this conviction, with a maximum forfeiture of the penalty payments to be made at €30,000.
5.2.
orders Rabobank to pay the costs of the proceedings, estimated on the part of [applicant] to date at € 1,510, plus the statutory interest as referred to in Section 6:119 of the Dutch Civil Code from fourteen days after this decision until full payment,
5.3.
orders Rabobank to increase the costs incurred after this decision, estimated at € 163,- in the salary of the authorized representative, on the condition that Rabobank has not complied with the decision within fourteen days of notification and the decision has subsequently been served, with an amount of €85 in salary of the authorized representative and the writ costs of service of the decision, plus the statutory interest as referred to in Section 6:119 of the Dutch Civil Code on the subsequent costs from fourteen days after this decision until full payment ,
5.4.
declares this decision provisionally enforceable to the extent.
This decision was given by mr. O.J. van Leeuwen, judge, assisted by mr. M. Sahin, registrar, and pronounced in public on April 22, 2021.
