Fresh Start Law: Financial and Credit Habeas Data

#### By: Dr. Luz Eneida Saldaña Parra, Attorney (Universidad del Rosario), specialist in Administrative and Financial Law


This article was published in November 2021 and describes a one-time amnesty program (Law 2157 of 2021) whose deadline expired on October 17, 2022. It is kept as a historical reference.

Despite the financial sector's opposition at the time and assumptions about the law, such as that it would encourage a culture of non-payment and forgive delinquent debtors, that good-paying debtors would be harmed, or that it is a step backward for the financial system, it is clear that those who benefit must act within the parameters set by law and, in any case, the rules that financial institutions impose for granting credit.

Thus, with the signing of the so-called "fresh start law" (ley de borrón y cuenta nueva) by President Duque on October 29, the twelve (12) month period began for taking advantage of the one-time amnesty, and the law seeks to strengthen Habeas Data.

Want to know how to enjoy the benefits of this law? Contact us by clicking here

Indeed, Law 2157 of 2021 was enacted, "WHICH AMENDS AND ADDS TO STATUTORY LAW 1266 OF 2008 AND ISSUES GENERAL PROVISIONS ON HABEAS DATA IN RELATION TO FINANCIAL, CREDIT, COMMERCIAL, AND SERVICES INFORMATION AND INFORMATION COMING FROM THIRD COUNTRIES, AND ISSUES OTHER PROVISIONS"

It therefore applies to the so-called "credit bureaus" (Centrales de Riesgo), which are private companies that store your basic data such as identification, location, payment behavior, and debt level, evaluating your credit information by taking into account all the credit obligations you have taken on, with emphasis on the payments you have made, your punctuality, delays, and of course, your failure to pay. That information is shared with financial institutions, always with your consent when you apply for credit, and they use it to decide whether or not you are a good candidate for a loan.

HIGHLIGHTS OF THE LAW:

• You can check your report at no cost, and the inquiry does not affect your score.

• Your history cannot be checked to obtain a job or for purposes other than analyzing credit risk.

• The data subject must be notified beforehand, which may be done in accordance with Law 527 of 1999 on electronic commerce.

• Positive information will remain indefinitely in the data banks of information operators.

• For obligations equal to or less than fifteen percent (15%) of one (1) monthly legal minimum wage, negative data for obligations in default will only be reported after at least two communications have been sent, on different days, with 20 calendar days elapsing between the last one and the report.

• If the data subject states that they are a victim of the crime of personal impersonation and is being asked to pay obligations resulting from the criminal conduct of which they are a victim, they must submit a correction request to the source, attaching the corresponding supporting documents. Within the following ten (10) days, the source must compare the documents used to take on the disputed obligation with the documents submitted by the data subject, which will be treated as summary evidence of the falsification. The source, if it so chooses, must report the crime of fraud of which it may have been a victim.

• Effects of silence. Requests or claims must be resolved within fifteen (15) business days of receipt, extendable by eight (8) more business days. If no prompt resolution has been given within that period, the request will be deemed accepted for all legal purposes.

• If it fails to do so, the petitioner may ask the Superintendency of Industry and Commerce or the Financial Superintendency of Colombia, as applicable, to impose the penalties provided for by this law.

• Transition regime. Data subjects who settle the obligations being reported within twelve (12) months of this law taking effect will keep that negative information in the data banks for a maximum of six (6) months from the date the obligations were extinguished. After that maximum six (6) month period, the negative data must be automatically removed from the data banks.

• Data subjects who, when this law took effect, had already extinguished the obligations being reported, and whose negative information had remained in the data banks for at least six (6) months from the extinguishment of the obligations, will benefit from immediate expiry of the negative information.

IMMEDIATE REMOVAL OF THE NEGATIVE REPORT: As long as the obligations being reported are extinguished within twelve months of this law taking effect, that is, until October 17, 2022.

• People classified as micro, small, or medium-sized enterprises (Mipyme), or in the tourism sector, or small agricultural producers, or individuals engaged in commercial or independent activities.

• Small agricultural producers, victims of the armed conflict, and rural youth and women who have any type of agricultural loan with Finagro.

• Debtors and co-debtors with credit obligations with Icetex.

Alerts for new obligations in the credit history to mitigate identity theft. Information operators will provide a free digital application so that data subjects, after validation, can register their email address and receive communications when a new obligation is reported in their credit history. The communication must be sent within 5 business days after the obligation is reported.

Penalties. Personal and institutional fines are provided for up to the equivalent of two thousand (2,000) monthly legal minimum wages in force at the time the penalty is imposed, for violation of this law and its regulations, as well as for failure to follow the orders and instructions issued by the Superintendency of Industry and Commerce or the Financial Superintendency. The fines provided here may be successive for as long as the breach that gave rise to them continues.

At Consejurídico #WeWantToBeThere

El asistente jurídico digital de Jurídiconline analiza tu situación específica. La revisión inicial es gratuita.