The current economic climate has led to an increase in people and companies going into bad debts all over Europe. This has in turn fostered the emergence of “credit blacklists”, where people and companies that have defaulted payments are recorded.
In principle credit blacklists are tools intended to help assessing the risk of financial and commercial transactions. Therefore, they are instruments with a legitimate and useful objective, helping to safeguard the economy. In practice the companies accessing the lists are using the “threat of inclusion” as a coercive instrument to force payments from people or companies. The worrying fact is that there is an increase of illicit inclusions of companies or individuals that in reality did not default any payment.
Credit Blacklists in Spain
In Spanish a credit blacklist is called “fichero de morosos” or “ficheros de solvencia patrimonial”. There are many different lists, the most important being:
- The RAI or “Registro de Aceptaciones Impagadas”, is used in a commercial context and only include juridical persons (companies).
- The ASNEF blacklist. ASNEF stands for “Asociación Nacional de Entidades de Financiación” (national association of financial companies)
- The “Fichero de Incidencias Judiciales y Reclamaciones de Organismos Públicos” (list of legal incidents and Public organizations claims)
- The EXPERIAN blacklist
All these lists and the many others existing in Spain are privately managed and in theory are accessible only by subscribers or member companies. In genera companies will use a proxy financial institution to access the lists.
A person included in the lists will in practice lose access to any source of financing or credit. This can turn into a nightmare if the person was included in the list erroneously.
Law 15/1999 for the protection of personal data
The inclusion in any blacklist or files is regulated in Spain by Law 15/1999 on personal data. The conditions are:
- There is the necessity to prove that the debt was certain, overdue and unpaid. This is very important.
- There was a formal notification asking the debtor to pay.
- There is the absolute requirement that the person is notified within 30 days of his inclusion in the blacklist. Failure to this will prevent the inclusion. The conditions for notification are:
- a) The notification must be made through a reliable and auditable mean, independent of the listing entity. There must be a way to check the effective delivery of the notification.
- b) In case the recipient refuses to accept the notification, the inclusion will be possible.
In any case after six years from the inclusion in a blacklist, the person will have to be erased from the list, even if the debt has not been paid.
It’s normal that in consumer-companies relationship each party is trying to impose it’s interpretation of a contractual agreement. In case of disagreement it’s very common that the company uses the threat of inclusion in a blacklist as a coercive weapon to force the consumer to agree to its conditions.
Getting out of a credit blacklist
There are 3 possible ways:
- Pay the debt
- Demonstrate that the debt is non existent
- Wait six years to be excluded from the list
Option (2) will be most of the time equivalent to a legal action.
Asking for damages
The erroneous inclusion in a credit blacklist or the failure to erase personal data when any of the conditions of the previous paragraph are met, is sufficient for claiming for damages to the creditor and to the company managing the list.
The court related to the domicile of the plaintiff will be competent. The process will be settled by ordinary judicial proceedings, whatever amount is claimed (art. 249.1.2 LEC).