The Plenary of the Civil Chamber of the Supreme Court has agreed with the Argentine “Fintech” Wenance Lendingspecialized in contracting consumer loans “on line”, which was sued by a client for violating his right to honor by including him in the delinquent file Asnef-Equifax, even though the loan is abusive.
“The usurious nature of the loan does not determine the illegality of the communication to the personal data file” when the citizen has not returned the loaned capital or has complained about the credit, says the Supreme Court.
In this case, adds the Chamber, «there was no doubt that the plaintiff was a delinquent debtorsince it did not repay the totality of the loaned capital; it was stated that the contract had warned him of the possibility of including his data in a file in case of non-payment of the debt; and payment was required prior to inclusion«.
The judges stress that “Immediately after Wenance was summoned in the litigation in which the plaintiff filed the action based on the Law of July 23, 1908 on the nullity of usurious loan contracts, which was practically simultaneous to the location in the litigation origin of this resource since the demands were filed in an interval of barely two days, the processing of the plaintiff’s data in the Asnef-Equifax file was canceled«.
Therefore, it has upheld the appeal and has annulled the judgment of the Provincial Court of Oviedo.
There was no violation of the right to honor.
Sentence 945/2022 of December 20, to which Confilegal has had access, has been signed by the magistrates Francisco Marin (president), Francis Javier Arroyo, Ignatius Sancho, Rafael Saraza, Pedro Jose Vela, M.a Angels Vine, Jose Luis Seoane, Juan Maria Diaz y Anthony Garcia.
The origin of lithium
On June 5, 2019, a user entered into a loan contract with the “Fintech” Wenance Lending of Spain. The capital was 500 euros to be returned in three months and in three installments of 250 euros each, with a TAE de 1.138,69%.
The contract established that debt default case“customer data may be communicated by the lender to financial solvency and credit institutions”.
The client only paid the first installment, that is, 250 euros. Therefore, Wenance communicated the personal data of the user associated with the non-payment of the loan to the file of defaulters Asnef-Equifax.
On December 3, 2019, they were included in the list with a debt of 934 euros which increased until it was set at 1,499 euros in July 2020.
He sued Wenance and won: the usurious contract was declared void
For this reason, the client sent Wenance an email in October 2020 in which he requested the recognition that the loan was null for usurer. On January 11, 2021, he filed a lawsuit against the company in which he requested the annulment of the loan.
Such demand was upheld in the judgment of July 16, 2021 issued by the Court of First Instance number 4 of Oviedo. It declared the loan contract for usury null and void “with the consequence that the plaintiff only has room for the return of the capital part delivered and not returned.”
Parallel presented other demand against the company (origin of this litigation) in which he requested that it be declared that the inclusion of his personal data in the Asnef file constituted a illegitimate violation of his right to honor and, therefore, that Wenance be ordered to indemnify him with 5.000 euros for moral damages.
The Court of First Instance to which this second lawsuit corresponded issued a disparaging sentence. It considered that “at the time when the plaintiff’s data was entered in the defaulters file, the debt was not uncertain based on a discussion about its usurious nature.”
He appealed to the Oviedo Court and he did agree with him
The plaintiff appealed the sentence in the Provincial Court of Oviedo and agreed with him. He appreciated such violation when considering that the amount of the debt for which he was included in the file was wrong, Since the loan was usurious, it only owed the amount of the capital lent, not the interest.
In addition, the Court considered that the current Organic Law 3/2018 had not repealed the requirement established in the regulations for the development of the old Law Organic 15/1999, Therefore, the processing of the data had been unlawful since when the debtor was required to pay, he was not warned that his data could be communicated to a file, and it was not enough that said warning was included in the contract.
Wenance went to the Supreme
Wenance filed an extraordinary appeal for procedural infringement and a cassation appeal. Only the cassation has been estimated.
In the development of the reason, the company questioned that the Provincial Court has considered that the usurious nature of the loan means that the debt was not true, due and payable.
He argued that when the plaintiff’s data was communicated to the credit information system, the litigation in which the sentence was handed down that declared that the loan was usurious had not been initiated, nor had the debtor sent any communication to him, so it was a peaceful debt. .
As the Supreme Court has pointed out, in the case that is the subject of the appealthe debtor made his first claim regarding the pertinence of the debt after the inclusion of his data in the delinquent file.
Before that moment, it had not even offered to repay the principal of the loan, which the borrower is obliged to do when the loan is usurious.
For this reason, at the time the creditor communicated his personal data to the registry of defaulters, there was no dispute between the parties about the existence of the debt.
In addition to the foregoing, when the plaintiff obtained a favorable judgment that declared the usurious nature of the loan, such declaration did not exempt him from restitution to the lender of the capital part pending payment, since Of the 500 euros that were lent to him, he had only returned 250 euros.
Therefore, that your data be processed in a file on asset solvency does not violate your right to honor, even if the amount communicated to the file was not correct, since what violates the honor of the affected party is not that the amount of the debt that appears in the registry is incorrect, but rather that the affected party is treated as delinquent, in breach of its monetary obligations, without being.
Therefore, it has upheld the appeal, has revoked the judgment of the Provincial Court and has confirmed the first instance.
Wenance Lending was founded almost 25 years ago with the purpose of granting personal loans. In 2014 they began the process of digital transformation of the business and became pioneers of Fintech in the country.
Years later, specifically in 2017, they advanced with the regional expansion to Uruguay. Currently, they also operate in Mexico, Spain and Peru.
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