May a debt collector threaten with a Schufa entry?
Is the threat of an entry at the Schufa legal?
Dunning letters and debt collection companies like to threaten with an entry in the Schufa, if the required amount should not be paid on time. Since one’s creditworthiness depends to a large extent on the so-called Schufa score when signing new contracts, many consumers are keen to ensure that no negative points whatsoever are stored with Schufa. Simply because of the threat of such an entry, many consumers go along with the demand for payment and pay the amount demanded.
Hamburg consumer center sued
Whether this business practice is permissible, however, was recently decided by the Federal Court of Justice. The consumer center Hamburg did not like this approach to reminders at all. She filed a lawsuit against the dunning practice of the telecommunications provider Vodafone.
Vodafone commissioned a debt collection agency to collect the amount demanded when bills were not paid on time. This debt collection company sent corresponding reminder letters to Vodafone customers, always stating that the customer data would be transmitted to Schufa.
The letter stated that Vodafone was a partner of the Schutzgemeinschaft für allgemeine Kreditsicherung (Schufa) and therefore had to notify Schufa of the “undisputed” claim, unless a weighing of interests yet to be carried out showed otherwise. In addition, it was pointed out in the letter that a Schufa entry affects financial matters, e.g. the customer’s credit rating.B. the admission of a credit, can affect substantially.
For this reason, the consumer advice center in Hamburg sued Vodafone for injunctive relief and for reimbursement of the lawyer’s fees already incurred before the courts.
Path through the instances
The Hamburg consumer advice center lost at the Düsseldorf Regional Court (where Vodafone is headquartered). The appeal before the higher regional court Duesseldorf resulted in a victory for the consumer center Hamburg. Vodafone appealed against this decision, which is why the Federal Court of Justice (BGH) now had to decide. The Federal Court of Justice (BGH) confirmed the ruling of the Higher Regional Court (OLG). In the end, Vodafone was defeated. Threat of a Schufa entry in the reminder letter is not permissible.
Violation of the UWG
The BGH, like the Higher Regional Court, saw a clear violation of §4 no.1 UWG (law against unfair competition), because the reminder gives the impression to the Vodafone customer that his data will be automatically transferred to Schufa if he does not pay the bill.
So there is a risk that customers will pay just to avoid a Schufa entry. Even if the bill is not legal at all. Simply because the customers know and were explicitly informed in the reminder that such an entry in Schufa will have negative consequences for them.
That a transmission of the customer data to the Schufa is not at all legally permissible with denial of the demand, that was not explained in the reminder however, rather the impression was given that Vodafone as a Schufa member was obligated to pass the customer data on.
Therefore the complaint of the consumer center Hamburg was granted. The reminder letters from companies and collection agencies must now be changed to reflect this. Vodafone has already done this 4 years ago (as long as the legal dispute lasted in the end).
It is true that the data of defaulting customers may continue to be transmitted to Schufa. However, no pressure may be exerted with it with the customer. Rather, the customer must be informed of the legal requirements for data transfer to Schufa, so that he can make a decision without the fear of any negative Schufa entries in the case of disputed claims.