In BKR removal via kort geding (Dutch summary preliminary relief proceedings), it is important to know in good time which steps and points of attention apply to your situation.
A kort geding for BKR removal can be a crucial step. This is the case when you are confronted with the negative consequences of a BKR registration that hampers your financial future. At Arslan & Arslan Advocaten we understand the complexity and impact of BKR registrations on your life. Such consequences may arise in relation to a mortgage, loan, or mobile phone subscription. In this article we highlight the options and the procedure of a kort geding. We also explain when a BKR registration can be removed or a code can be modified.
BKR removal via kort geding: important points of attention
The Bureau Krediet Registratie (BKR) in Tiel maintains an overview of all loans and credits that Dutch consumers enter into. This overview, the Centraal Krediet Informatiesysteem (CKI), is intended to prevent over‑indebtedness. It gives financial institutions insight into the borrowing history of potential customers. Although BKR’s intent is positive, a negative BKR registration can have far‑reaching consequences. Consider an ‘A’ code (achterstandscodering: arrears code) or an ‘H’ code (herstelcodering na achterstand: recovery code after arrears), which makes it virtually impossible to take out new credit.
A negative BKR registration remains visible for five years after repayment of the debt. This long period can be a significant obstacle for many people, even if the original problems have long since been resolved. It is therefore important to know which steps you can take when you believe your registration is unjustified or when the consequences are disproportionate.
The road to BKR removal: amicable route versus legal proceedings
Before you consider starting a kort geding for BKR removal, it is essential first to pursue the amicable route. This means you contact the lender and BKR directly to have the registration reconsidered. You must demonstrate why the registration is unjustified, or explain why its consequences weigh disproportionately compared to the interest served by the registration. That may be the case if the debt was small or the arrears were cleared quickly. Special circumstances, such as divorce or illness, can also be relevant. We have previously prepared a comprehensive roadmap for removal of an unjustified BKR registration to help you with this.
Unfortunately, lenders are not always willing to remove or adjust a registration. If the amicable route offers no solution, a legal proceeding is often the only remaining option. You can think of proceedings on the merits (bodemprocedure), but in urgent cases a kort geding is a more effective tool.
When is a kort geding for BKR removal the right choice?
A kort geding is an expedited civil procedure intended for urgent matters. It is not a substitute for ordinary proceedings on the merits, but a form of provisional relief. The kort geding judgment is binding and, in theory, can later be set aside in proceedings on the merits. In practice, this rarely happens in BKR cases.
You opt for a kort geding if you urgently want to get rid of the negative consequences of a BKR registration. Typical situations requiring urgency include:
- You cannot obtain a mortgage because of the BKR registration for a home you urgently need (for example, due to an approaching deadline for a purchase contract or the expiry of your tenancy). Read more about the relationship between BKR registration and mortgage on our website.
- You have your eye on a new job that requires a screening, and the BKR registration is an obstacle.
- You depend on a loan for essential needs (for example, a necessary car) that you cannot obtain due to the registration.
- The BKR registration is clearly unjustified or incorrect and is causing you serious harm.
Balancing of interests by the court
In a kort geding, the court balances the interests of the claimant (you) against those of the defendant (the lender and BKR). Proportionality and subsidiarity of the registration play a major role. Is the harm you suffer due to the registration heavier than BKR’s interest in maintaining it?
The legal grounds for a successful kort geding
To succeed in a kort geding for BKR removal, you must advance specific legal grounds. The most important are:
- Balancing of interests and disproportionality: You must show that your interest in removal or adjustment of the registration outweighs the lender’s and BKR’s interest in maintaining it. The seriousness of the arrears, the duration of the registration, your current financial situation, and the concrete damage you suffer are relevant.
- Privacy law (GDPR/AVG): The General Data Protection Regulation (Algemene Verordening Gegevensbescherming, AVG) gives you the right to rectification and erasure of personal data when they are inaccurate, no longer necessary for the purpose for which they were collected, or when your interests outweigh the controller’s legitimate interest. A BKR registration is a processing of personal data.
- Unlawful act (onrechtmatige daad): In some cases, the registration may qualify as an unlawful act, for example if the lender was negligent in communication or in the registration process.
It is crucial to substantiate these grounds with evidence. Think of correspondence with the lender, proof of the harm you suffer, and documentation of your current financial stability.
The procedure of a kort geding for BKR removal
The procedure of a kort geding generally proceeds as follows:
- Preparation: Your lawyer drafts a writ of summons (dagvaarding) setting out the facts, legal grounds, and your claim (removal or modification of the registration). All relevant evidence is attached.
- Summons and service: The writ of summons is served by a bailiff (deurwaarder) on the lender and, where appropriate, BKR.
- Hearing: The case is heard by the preliminary relief judge (voorzieningenrechter). Both parties are given the opportunity to present their position orally.
- Decision: The court usually renders its decision within one to two weeks after the hearing. The decision may order removal or modification of the registration, or dismiss your claim.
It is very important to be assisted by a specialist lawyer during this procedure. A lawyer can help you draft a strong writ of summons and gather evidence, and can effectively plead your case before the court.
The role of Arslan & Arslan Advocaten
At Arslan & Arslan Advocaten we have extensive experience successfully conducting kort geding proceedings for BKR removal. We understand the nuances of the BKR regulations and the relevant case law. Our lawyers guide you from A to Z through the process, from the first contact with the lender to the court hearing.
In practice we often see that the balancing of interests is a crucial part of the procedure. The court does not only look at the lender’s interests, but carefully weighs them against the consumer’s personal and financial circumstances. It is important that you, as a consumer, can demonstrate that your situation has changed and that you can meet future financial obligations.
Good preparation for this balancing exercise can make the difference between a successful and an unsuccessful procedure. We always advise our clients to collect as much evidence as possible to support their changed financial situation. This can range from recent payslips and employer’s statements to an overview of your fixed expenses and any proof of repayment of previous debts. The more concrete evidence you can submit, the stronger your position will be.
A BKR registration is not intended as a life sentence. It serves as a means to prevent over‑indebtedness. The court can decide that the registration must be removed if its purpose is no longer served. That may be the case, for example, when the registration affects you disproportionately and, as a result, you cannot obtain a mortgage for a necessary move.
It is our task as lawyers to present these arguments clearly and convincingly to the court. We have extensive experience with these types of proceedings and know exactly which arguments have the greatest chance of success. Contact us in time so that we can build a strong case with you and maximize your chances of a successful BKR removal. We are happy to assist you with expert legal advice and decisive support throughout the entire procedure.
Need help? Our BKR lawyer will be happy to assist you. Contact us without obligation for a free first advice.
Kort geding BKR removal is an important legal topic about which you, as the person concerned, should be well informed. In this article we explain your rights and options.
Your rights in kort geding BKR removal
More information about BKR registration can be found on the government's website.
