Lists of defaulters and the AEPD

Lists of defaulters and the AEPD

The negative effects caused by the pandemic, the war in Ukraine, the energy crisis, the recession, among others, have unfortunately led to an increase in delinquency in Spain, and with them, the inclusion of debtors in more and more lists of debtors.

What are the lists of defaulters and what is their function? 

A list of defaulters is a register that includes all those individuals and legal entities that have incurred in some type of non-payment, thus restricting access to any type of financing.

Requirements for including a client in a debt collection file

In order to include a third party in a debtors’ file, the first thing to consider is that the debt claimed must meet a series of requirements:

• The data must have been provided by the creditor or by someone acting on his behalf or in his interest.
• The debt must be certain. In other words, it must be real and unpaid. 
• The debt must be overdue.
• The debt must be enforceable, and there must be no legal impediment to its being claimed. 
• The debt must be less than five years old, in the case of individual debtors, and the amount of the debt must be no less than €50.
• The creditor must have warned the debtor, either in the contract or in a previous requirement, of the possibility of being included in a specific default file in the event of incurring or maintaining non-payment. 

The last of the requirements is perhaps the most common mistake made by those who demand payment of a debt from their customers and suppliers. That is to say, either they have not foreseen this casuistry in the contract signed with the debtor, or they do not include it in the request for payment prior to initiating any type of legal action or extraordinary measure to achieve their objective, which is none other than to receive payment of the amount owed.  

Likewise, the entity that maintains the credit information system must notify the affected party of the inclusion of such data and inform them of the possibility of exercising the rights established in articles 15 to 22 of Regulation (EU) 2016/679 within thirty days of notification of the debt to the system, with the data remaining blocked during this period.

Can I publish the list of defaulting neighbours on the notice board of my building? What does the AEPD think:

From the point of view of the protection of personal data, it would appear that it is not legal and that it is in breach of several of the precepts set out in the Organic Law on Data Protection (LOPDGDD) and the aforementioned Regulation.

However, the dissemination of the list of a debtor neighbour may only be published in the case set out in article 9 of the Horizontal Property Act, section h) second paragraph, “If an attempt is made to summon or notify the owner and it is impossible to do so in the place provided for in the previous paragraph, it will be understood to have been carried out by placing the corresponding notice on the notice board of the community, or in a visible place of general use provided for this purpose“. In order to proceed in this way, the attempts at notification must be accredited.

How to find out if you have been included on a list of debtors and what to do to get off it 

First of all, we must bear in mind that the Law requires that the individual or legal entity that is going to be included in one of these files be notified, as they must be able to pay the amount owed in order to cancel or rectify the non-payment.

However, if this is not done, the debtor’s data will be included in a list of defaulters. It should be noted that the name of the business may only remain on these files for a maximum of 6 years. To check whether or not you are included in a list of defaulters, you should check the most common files:

• RAI
• ASNEF or Asociación Nacional de Entidades de Financiación (National Association of Financing Entities)
• Experian Bureau Empresarial
• Infodeuda
• RIJ or Registro de Impagados Judiciales (Register of Judicial Unpaid Debts)

To request that your name or that of your business be removed from the files, you must carry out the following steps:

• Pay the debt and request cancellation of the data.
• Claim the debt alleging non-conformity. The law prevents the debt from being registered in the file if it is being claimed administratively, judicially or through a binding alternative procedure, such as consumer arbitration.
• If there is no such debt or if the requirements for inclusion in the file are not met, only the owner of the file will have to be asked to be removed from the file.
• Furthermore, if the inclusion is incorrect, it is possible to claim legal compensation for the damages caused.

Likewise, the owners of these files are obliged to respond within the legally established deadlines, or you may report it to the AEPD to initiate disciplinary proceedings against those responsible.