
- Director: Dra. Rebeca Carpi Martín
- Date of defense: June 6th, 2023
Abstract:
Debt is a legal, economic, and social instrument that allows access to goods and services whose acquisition, with own resources, would be more difficult or even impossible. However, if it reaches excessive levels, it can become a danger, and lead to over-indebtedness. This situation affects not only the individuals affected, but also society in general, since financial stability may be put at risk. Our legal system has incorporated, in the field of bankruptcy, the exoneration of unsatisfied liabilities as a solution to the over-indebtedness of individuals, and, specifically, of consumers. Debt release can have a certain preventive effect on over-indebtedness, by promoting a greater degree of responsibility and prudence for lenders, when granting credit, since the lending financial institution is involved in the risk of not collecting their credit. This fact should encourage responsible lending. However, to enhance this effect, it is concluded that some technical legislative defects in this regulation could be purged. For example, an evaluative concept could be articulated, instead of the normative concept, of the good faith of the debtor. In this way, access to the exoneration would only be given to the honest but unfortunate debtor. Taking into account that Law on consumer credit and real estate credit contracts, in the event of infringement of the obligations of the responsible loan (duty of information and solvency evaluation of the borrower), only provides for administrative sanctions, which have not been demonstrated be sufficiently deterrent to irresponsible concessions, it is considered necessary to introduce private law consequences for the defaulting lender. Such consequences may consist, in the bankruptcy sphere, in a subordination of the debt arising from that irresponsible concession and even in the possibility of its exoneration. These bankruptcy consequences could be complemented with the imposition of administrative fines, but also with others in the field of civil law. It is proposed to introduce in our legal system, in the event of breaches of the obligations derived from a responsible concession, a specific case of rescission, which would act in the event of the infringement of the obligation to assess the solvency of the borrower, being able to articulate, as a consequence, the maintenance of the validity of the contract, but with the effect of depriving the lender of the collection of remunerative and default interest, due to the damage caused, or even, in the most serious cases, with the loss of part of the capital, as is the case in other neighbouring countries. This solution would make it possible to avoid the undesirable effects, for the consumer, of solutions such as nullity, voidability or contractual resolution, which attack the validity of the contract and imply the restitution of benefits. To articulate an effective sanctioning system, it is necessary to provide lenders with tools for the correct and complete evaluation of borrowers' solvency. This requires specifying the elements that must be considered in the solvency evaluation and the weight that each of them must have to determine a positive or negative result of said evaluation, to act accordingly. But it also requires delving into the sources of information available to lenders. Regarding these sources, positive solvency files are essential tools for reporting the debt ratio of debtors and providing a more complete picture of the consumer's situation, ability, and willingness to repay. To the extent that they represent an incentive for good behaviour by the debtor, as they are the mirror of their financial reputation, they are necessary for the granting of responsible financing. In the same way, financial education from an early age is necessary so that the consumer knows the risks to which he is exposed when he gets into debt. The regulation of solvency files would encourage the need for this financial education on the part of the consumer. Currently, negative solvency files predominate for which the consent of the affected party is not required. The stumbling block referred to in not regulating positive files is the possible infringements and interference with the privacy and intimacy of those affected that could occur, as well as the data protection regulations that prevent this data from flowing in an agile manner by requiring the prior consent of the affected party. It is necessary to expressly introduce in the LOPDGG a legitimizing title for the treatment of this data to make the private protection of the consumer compatible with the necessary transparency in the credit market to achieve the stability of the financial system. This title should allow access to private SICs with positive solvency files, in the same way that access is allowed to the CIRBE, to homogenize in the Member States the databases to which they resort to assess solvency and promote a single credit market. In addition, the obligation to use these files should be extended to all lenders and entities that mediate financing, including FinTech and, specifically, crowdfunding platforms. The technological environment in which we live and the lack of regulation of positive files contributes to lenders of all kinds using alternative data to assess the solvency of borrowers. This data entails risks in its treatment derived from the use of artificial intelligence mechanisms, which is why a harmonized regulation is required, from the European Union, to regulate this data as a source of information and to regulate responsible lending in all its aspects, to standardize existing regulations that are dispersed and prevent consumer over-indebtedness.