SCHUFA’s view: Three-year deletion period for data related to insolvency
As is well known, entries in the SCHUFA have so far been an often insurmountable hurdle for many debtors to regain a foothold in economic business dealings. Even after the successful completion of insolvency proceedings and the granting of residual debt discharge, the restrictions persist for years despite being debt-free. Because SCHUFA saves the completion note in connection with the discharge of residual debt regularly up to the expiration of three years, which means that the creditworthiness remains severely limited and one encounters rejection when looking for an apartment or when concluding mobile phone contracts.
This usual procedure of the SCHUFA has now been put a stop to the case law by a current judgment of the Schleswig-Holstein Higher Regional Court of July 2nd, 2021 (file number: 17 U 15/21).
Is this previous practice of SCHUFA permissible?
In principle, SCHUFA may save and process data from insolvency debtors from the generally accessible insolvency announcement portal. But what applies if the data is to be stored longer than is permitted under the “Ordinance on Public Notices in Insolvency Proceedings on the Internet”? How third parties outside the judiciary, including SCHUFA, who are allowed to independently process data obtained from the insolvency portal, is still not regulated by law and is still controversial.
OLG Schleswig contradicts the opinion of SCHUFA and sees the deletion period at six months
According to the OLG Schleswig, an insolvency debtor has a cancellation claim against SCHUFA Holding AG if it stores and processes this data from the bankruptcy announcement portal for longer than provided for in the regulation on public announcements in insolvency proceedings on the Internet (InsoBekVO). Section 3 (1) and (2) of the InsoBekV stipulate that any publication of data from insolvency proceedings, such as the granting of residual debt discharge, must be deleted after six months at the latest.
Following on from this, the OLG Schleswig recognizes the right to have the data deleted six months after the insolvency court’s decision on the discharge of residual debt has become final. After this period has expired, further processing by SCHUFA is in contradiction to Section 3 (2) InsoBekVO and is therefore no longer lawful. If the data of the (former) insolvency debtor are processed unlawfully, SCHUFA can request their deletion and have a right to future omission of this data processing.
SCHUFA cannot claim that the data processing is lawful because it supposedly serves its own interests or the legitimate interests of third parties. An interest can only be justified if it does not conflict with the legal system or the principles of good faith. However, after the statutory deletion period has expired, the processing by SCHUFA is in contradiction to the legal assessment of Section 3 (2) InsoBekVO, according to which the information on the decision on the discharge of residual debt is only to be published on the Internet portal for six months. The processing and dissemination of this information to the general public by SCHUFA would therefore be tantamount to publication on the Internet and should therefore be refrained from after the statutory deletion period has expired.
The Schufa could not refer to the rules of conduct of the association of credit agencies. These rules of conduct do not have any legal effect at the expense of the former bankruptcy debtor and are in contradiction to the legal assessment.
What will change in the future?
As a result, the following can be stated: As long as the legislature for credit reporting agencies such as SCHUFA has not made any deviating regulation for the storage periods of the information, for example for the discharge of residual debt, credit agencies have to observe the deletion period of six months in Section 3 (2) InsoBekV.
WHP lawyers are there for you
The law firm WHP Rechtsanwälte has been advising clients for 20 years and lawyer Robert Hafemeister since 2007 on the preparation and implementation of insolvency proceedings and debt relief. Feel free to contact us at any time for a free initial consultation on debt relief.
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