The OMIC continues to provide its services to the public electronically and through the 010 phone service. Claims and enquiries will continue to be preferably dealt with online. For those inquiries or complaints that require face-to-face attention, you must make an appointment in advance on the municipal procedures portal ajuntament.barcelona.cat/cita/omic, by calling 010, or at the Municipal Procedures Kiosk.
What do I need to know about the bad debtors’ list?
Sometimes something as simple (and maybe, even, justified) as returning a bill, can have undesired consequences. At other times, certainly in most cases and for whatever reasons, a person may not be capable of paying the corresponding instalments of their loan. The consequences could be the same in both cases: being entered in a capital-solvency or bad debtors’ file, and that, unfortunately, has implications.
Current legislation establishes that when a person is included in a list of bad debtors, the person concerned must be given notice of this within a maximum of 30 days. Nevertheless, many people are unaware of their inclusion, let alone how to get off the list.
The OMIC, acting in collaboration with the Catalan Association of Financial Users (ASUFIN), answers FAQs on these files and reminds users of their consumer rights.
What is a bad debtors’ file?
Bad debtors’ files or lists are tools used by credit institutions for gathering information on defaulted payments. When deciding whether or not to grant a loan or funding, the various institutions consult the credit records of the natural or legal person concerned, and it is on the basis of those records that they make their decision. That is why it is important to “be clean” and not to be listed in these files.
By statute, a debt’s registration is only valid in the following cases:
- Prior existence of a specific debt, due and enforceable, which remains unpaid.
- That the debt has been given prior notice of demand for payment.
- That the creditor or person acting in their name and interest (firm of lawyers, collections agents) makes sure that all the requirements are met, when notifying the person responsible for the common file.
- The debt must not be older than 6 years.
What bad debtors’ files are there?
- ASNEF EQUIFAX – Asnef-Equifax Serveis d’Informació sobre Solvència i Crèdit, SL
This contains information on transactions left unpaid, by both natural and legal persons, contributed by creditors themselves.
There are some 270 ASNEF associates, including savings and rural banks, banks, utility companies, credit-card issuers, financial institutions of every kind, telecommunications companies, publishers and energy companies.
We are talking about a private entity.
- Badexcug – Experian Bureau de Credit, SA
This contains information on unpaid transactions, contributed by creditors themselves.
There are some 230 member entities, mainly banks and credit institutions. We are talking about a private entity.
- Unpaid Acceptances Register (RAI)
This lists defaults in excess of 300 euros, in this case, relating to legal persons, and not natural persons. The information is provided by banks and automatically entered in the RAI when a payment that had been accepted is not made.
- Defaulting Tenants’ File (FIM)
It is provided with information on incidents by property professionals, individual owners and court rulings. It is open to companies and individuals alike.
Its purpose is to prevent rent-defaulting.
- Bank of Spain Credit Register (CIRBE)
This is a Bank of Spain database, containing the risks that entities have with clients; CIRBE therefore displays the total amount of debts that each natural or legal person has.
This information is accessible to the credit institutions that borrowers apply for loans from and each person has access to their own information.
Access to bad debtors’ files is free.
What information do they contain?
Information identifying the person looked up:
- List of names and different addresses they appear in the file under.
- Summary of the current situation of unpaid transactions (total unpaid balance, number of transactions etc.)
- Details of each of the unpaid transactions (amount, number of instalments, type of lending institution, etc.)
- Monthly development (last 24 months), of both the information summarised and listed in detail per unpaid operation.
- Consultations made in the file.
- Maximum period information can stay in the file for: 6 years.
How can I know whether I appear in a bad debtors’ list?
There are people who are unaware of their “official” bad debtors’ situation. In fact, it is an increasingly common situation, usually discovered when a person applying for a loan is denied it on the basis of their solvency. But such a situation, according to the law, should not occur.
By statute, a company that registers a debt is under an obligation to inform its debtor, within a period of 30 days, of the entry in the bad debtors’ file.
Is the creditor company is the very body that manages the file?
The body managing the file and the creditor are two different bodies, with different obligations.
What are the possible consequences of my being entered in the file?
There are no legal consequences but there are consequences in practice. Consumers have limited or directly restricted or more expensive access to:
- Funding from banks and any other type of financial establishment.
- Basic utilities such electricity, water and telephone lines.
Why and how can I be included in a bad debtors’ file?
A person may be entered in a bad debtors’ file for various reasons. The most usual is for their failure to pay various bills (mortgage, supplier company), and such defaulting may be due to the debtor’s unwillingness to pay or to the impossibility of their dealing with the debt.
There are occasions when a company claims to charge for some item considered unfair by the other party, the consumer, and threatens the latter with the possibility of entering them in a register of this type.
Nevertheless, there are rulings from the Supreme Court which determine that a file of this kind may not include anyone who “legitimately disagrees with the creditor over the existence and amount of the debt”. If the debtor is involved in an administrative or legal claim or in the middle of arbitration proceedings, they cannot be included in the file.
What requirements need to be satisfied before a debt can be entered in a bad debtor’s list?
Any data included in bad debtors’ registers must refer to a specific debt, due and enforceable or, in other words, the debt must not be disputed, which is when the “debtor” disputes the debt and has communicated this to both the creditor company and the company responsible for the file.
How can a person be removed from the bad debtors’ file?
In principle, by paying off the due debt and subsequently confirming that before the corresponding file’s managers.
A person may also be removed from the file without having paid off their debt provided that:
- The debt is over 6 years old.
- It can be demonstrated there is no debt.
- The debt has expired. Most debts expire after 3 years in Catalonia and after 6 years in the rest of the Spanish State. There are debts, however, which expire before or after those periods.
- The debt is being discussed in court. It is important here to remember that proceedings over a bad debtors’ file do not imply the debt’s cancellation or forgiveness.
What are the rights of the persons concerned in the event of their illegitimate inclusion?
The key self-help tool for consumers is their right to access, rectify, cancel or object to their data, also known (by their Spanish acronym) as their “ARCO rights”.
If the debt is not real, and it has been entered in the bad debtors’ file as such, but the consumer’s data are not removed, the person concerned is entitled to claim damages. While such situations have to be studied on a case-by-case basis, it may be possible for the consumer concerned to sue the lending institution, the body responsible for the file or both for violating their right to honour and privacy. In the first case, for unduly entering the person in the file; in the second case, for not having cancelled the data after taking part in the mistake made and not having been sufficiently diligent in verifying the loan.
How can I fight against improper inclusion in the files?
The key elements for rebutting an entry in the bad debtors’ file are as follows: the disputed nature of the debt (which the “debt” disputes and has communicated such to the creditor company and to the company responsible for the file) and the failure to notify the person concerned.
What can I do if the debt is real and has been correctly entered?
If the debt is real and has been correctly entered, you are advised to apply for its temporary cancellation in the register and establish a negotiation strategy with the lending institution.
What do I need to commence legal proceedings against the manager of the file or the creditor company?
The documentary part is key when commencing legal proceedings against the manager of the file or the creditor. You will have to provide documentary evidence for the disputed nature of what is claimed (none or only a part of the amount is owed), for your not having been informed of your entry in the file and for your having notified both the creditor and the manager of the file that they have failed to comply with their respective obligations here.
How do the courts resolve these types of disputes?
The case law tends to be favourable to consumers here.
It is important to bear in mind that partial payments of disputed bills do not imply recognition of their truthfulness of the debt.
How can I bring a claim?
Contact a trustworthy or sufficiently accredited professional or a consumer association, preferably specialising in financial products, but never, above all, put your trust in companies that promise to have you automatically excluded from the file for a certain amount of money: this could be a case of fraud.