Judge rejects bank secrecy pledge in injunction case

PHILIPSBURG–The Court of First Instance on Friday ruled in summary proceedings against Windward Islands Bank’s (WIB’s) refusal to provide information concerning a loan in connection with a mortgage attached to a dwelling in Beacon Hill.

The case was filed January 17, 2017, by a woman whose partner passed away on May 26, 2014, after leaving the house to her.

She was informed on October 20, 2016, by email sent by an official of Maduro and Curiel’s Bank Group MCB that there was a backlog in mortgage payments to the amount of US $4,078, plus a late-payment fine of $99.

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Rumour had it that the bank had the intention to publicly auction off the dwelling. The woman, represented in this case by attorney Jelmer Snow of BZSE law office, stated she had a big personal interest in the loan being paid off and made an appeal to article 6:30 in the Civil Code which grants the right to pay off debts of third parties.

However, WIB declined to provide information about the outstanding amount on the loan, stating that privacy legislation and the applicable conditions between the bank and its client prevent this.

One of the co-heirs, who was also party in the injunction, had declined permission to the bank to make the required information available.

According to the plaintiff, the National Ordinance on Personal Data allows for information being made available in case there is a “justified interest.” She called on the Court to order WIB to make available information concerning the current outstanding balance of the mortgage loan, as well as all information needed to correctly pay off the loan. In case of non-compliance, she requested that the Court impose a daily penalty of $1,000.

The Bank appealed with the Court to reject the claim, as plaintiff is not a party in the loan agreement. Furthermore, the woman’s position in the heritage has not yet been properly established, as the heirs are engaged in several lawsuits.

As it is not up to the bank to establish the plaintiff’s legal position, the bank is considering her a third party. Without a Court ruling on this matter the bank cannot make the required information available, as it is bound to the pledge of secrecy as mentioned in the National Ordinance Supervision of the Banking and Credit System, the bank stated.

Also, the bank is not entitled under its general conditions to provide information to other persons than those in whose name the account has been opened. WIB’s representatives in the injunction also contested that the provision of information was necessary in the representation of the plaintiff’s interests in this case.

The co-heir agreed that the house had been donated to plaintiff by the testator. In summary proceedings of June 17, 2016, the Court ordered the defendant and her sisters to vacate the dwelling in favour of plaintiff.

However, the defendant and her sisters filed an appeal. Besides, there is also a case in the Court of Law in France in which the inheritance is contested.

The plaintiff has two options. She either pays 1.1 million euros for the dwelling, which then becomes her property, or she shares in the inheritance for 8.6046 per cent.

The Court allowed the injunction, as the plaintiff has an evident interest in the dwelling, which cannot be sold by auction or privately without her knowledge.

The Judge also concluded that the plaintiff has a right to obtain the required information. Considering the bank’s importance to economic trade it cannot overly give weight to the protection of personal client information, the Court said in its ruling.

WIB was ordered to provide the plaintiff within 10 days with information about any outstanding claim on the mortgage loan. In case of non-compliance, the Court attached a daily penalty of NAf. 1,000, with a maximum of NAf. 100,000.

The co-heir will have to provide plaintiff with monthly proof of mortgage payments and any due and payable balance until the Courts have decided on the allocation of the home. The Judge attached similar penalties in this case.

Source: The Daily Herald https://www.thedailyherald.sx/islands/74854-judge-rejects-bank-secrecy-pledge-in-injunction-case

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