Nightmare used car sale (dealership)

[elwon20]

Hi, this is a complex one. I have already filed a section 75, and then I came across this forum.

The car is a 2009 Jaguar XFR with 93k miles.

As the section 75 claim summarises the events best I'll paste it here:

Dear Sir / Madam,

I am writing to you to raise an issue about: Credit Cards

The issue that I have experienced was:
08/01/2021 Called [dealership] with regards to a car they had on sale on Autotrader. Autotrader had it listed with various high spec optional extras. Including:

Adaptive cruise control with Advanced EBA
Bowers and Wilkins 440 Watt surround sound system
Electric rear window sunblind
garage door opener
multimedia system tv with digital/analogue tuner
Jaguar voice
Jet Jaguar premium suedecloth headlining
Parking aid pack with rear camera

I expressed it was too expensive and they expressed it was priced high due to the optional extras, they agreed to reduce the price from the £13,989 list price down to £13,250.

09/01/2021 I arrived at the dealership, they would not let me test drive it due to covid measures but allowed me to drive it around the parking lot. I then purchased the vehicle.
On my way home I was contacted by [dealership] letting me know they had undercharged me by £2,000. I did not have my card, I told them I would pay the extra when I got home.
When I got home I had realised the car did not have the following optional extras:

Adaptive cruise control with Advanced EBA
Bowers and Wilkis 440 Watt surround sound system
Electric rear window sunblind
garage door opener
multimedia system tv with digital/analogue tuner
Jaguar voice

I was upset by this, it was getting late. I took the evening to consider my options before calling [dealership] back the next day.

10/01/2021
I see the receipt and invoice I have for the car is in fact £2,000 below the expected sale price. I have received an email with an amended invoice. I discover [dealership] have attempted to charge 2 of my cards for the additional monies, without my authority. These transactions had failed due to a lack of funds, luckily the providers declined the payment instead of charging me. I had multiple threatening voicemails and text messages.
I call [dealership] and express my concern that the car was not as advertised. The phone call grew heated. I offered for [dealership] to either come and collect the car for a full refund, or I would pay an additional £750 of the £2000 shortfall originally verbally agreed as final payment for the car due to it's reduced spec. The phone call was ended while [dealership] considered the offer.
[dealership] text me stating that reluctantly they would accept an additional £1000 making a total sum of £12,375 for the final payment of the car. This final £1,000 was paid, and the sale finalised.
20/01/2021
I receive an email from [dealership] stating that they have the v5, with a document to sign stating that I waive all of my rights. I refuse to sign this document. [dealership] refuse to notify the DVLA of the sale and withhold the v5.

05/02/2021
The car refuses to change gear and GEARBOX FAULT is displayed in red on the dash. I slowly and gently drive the car home.
I email [dealership] informing them of the situation, requesting that they repair the car.

06/02/2021
[dealership] refuse to repair the car unless I pay an extra £1000 and return the car to them. I do not believe the car is safely drivable.

It occurred on: 9/01/2021

This meant that I have a broken down car which is not the car I originally thought I purchased. I've been threatened with the police, legal action, vehicle recovery etc. I've had [dealership] attempt to illegally withdraw funds from my account. I now only have one usable car and my partner has just started a new job and I myself am starting a new job on March 5th, this is causing massive inconvenience. I have spent a day going to and collecting what was supposed to be my dream car (it's a 3 hour drive each way). I have insured the car which I will no doubt have to pay fees on cancellation.

I would like the car to be repaired, or a full refund.

I look forward to your prompt response on this matter. As recommended by Trading Standards, I would like to keep a complete record of my case, so please reply to this email address.

Yours faithfully,

[my name]
DOB: ......

Sort Code:
Account Number:

Account: .... .... .... ....

[my address]



The above is my initial section 75 claim contact and summarises events so far. I provided evidence of pretty much all of the above in the claim (pictures of text messages verifying that they would accept £1000 as final payment, all email communications etc). At this point, the dealership is refusing to acknowledge that the sale is finalised, and all communication with them is pretty much a waste of time. The car broke and I informed the dealership of this within 30 days. of the initial (and final) payment. I also filed the section 75 within 30 days.
Thoughts? Was I right to file a section 75? Are there other actions I can take in the meantime?

Any help/advice/viewpoints are hugely appreciated! If I can provide any more information (text message wording etc) or answer any questions please let me know!

[elwon20]

A part of me wants to pay the extra £1000, to 'finalise' the sale in the dealerships eyes. So I can then get a full refund and I'm still within 30 days up until tomorrow (the 9th) (or 10th as the final payment was made on the 10th), but I sincerely doubt they would allow this to happen without a battle, and I would be another £1000 down.

[des8]

There are different aspects to this situation due to the way it has been handled.

Firstly there was the misrepresentation, which would have allowed you to rescind the contract,
However you came to an agreement over that by paying a reduced sum

Then there was the breakdown.
By requesting a repair you waived your short term right to reject unless the repair was not carried out or was unsatisfactory.
The dealer refused, so your right is remains.
However in your Sec75 claim you again request a repair.

The good point is that having requested a repair your short term right to reject is stayed and so your thirty days still has time to run.

I don't suppose you know what the gearbox fault is, but anyway it will be for you to show the fault was present when the vehicle was delivered.

It is for the dealer to arrange the return at their cost of the vehicle to themselves and delivery back to you.

Is the vehicle yet registered to you with DVLA?

[elwon20]

The DVLA has sent a logbook to the dealership, who are refusing to inform the DVLA that the vehicle has been sold. They are denying that the sale is complete.

I have sent off a new ownership slip to the DVLA from the *old* v5. But have yet to receive a v5, so I do not know who it is registered to but I expect it is still registered to the dealership.

I thought that within 30 days it was up to the dealership to prove that the fault was *not* there when the vehicle was sold?

I am more than happy to have the vehicle repaired. But I do not trust that the dealership will repair it correctly (this does not matter as they are refusing to repair it anyway).

Yesterday I asked the dealership for a final response regarding this matter. The latest correspondence from the dealership this morning went as so:

"Please refer to previous emails, you refused a full refund and we have a recorded conversation of this and also you refusing to bring the car back to our premises. Once you have paid the £1000 you still owe plus our recovery expenses we will of course honour our original warranty agreement for the agreed retail sale price of £13,250. We are also not legally due to transfer the vehicles V5 until all the funds have been transferred as you have now refused to sign the agreement we offered in good faith but have now withdrawn.

No refund will be forthcoming whatsoever "

The refusal of a refund is not really true. When I first called them about the mis-selling, I told them I would not return the car for a refund, offered them the option of a refund (by way of them coming and collecting the car) or £750 of the £2,000 owed. They counter-offered with £1,000 of the £2,000 owed. This was paid and was way before any faults came about with the car.

And 10 days before they asked me to sign anything. (Which I refused)

[des8]

The DVLA has sent a logbook to the dealership, who are refusing to inform the DVLA that the vehicle has been sold. They are denying that the sale is complete.

I have sent off a new ownership slip to the DVLA from the *old* v5. But have yet to receive a v5, so I do not know who it is registered to but I expect it is still registered to the dealership.

I thought that within 30 days it was up to the dealership to prove that the fault was *not* there when the vehicle was sold?
Within the first 30 days it is for consumer to show fault was present at time of delivery. Faults arising within the next 5 months are deemed to have been present at time of delivery

I am more than happy to have the vehicle repaired. But I do not trust that the dealership will repair it correctly (this does not matter as they are refusing to repair it anyway). But you have indicated to credit card issuer that you would accept a repair, and if acted upon this will likely be implemented by dealer

Yesterday I asked the dealership for a final response regarding this matter. The latest correspondence from the dealership this morning went as so:

"Please refer to previous emails, you refused a full refund and we have a recorded conversation of this (disputed) and also you refusing to bring the car back to our premises. Once you have paid the £1000 you still owe plus our recovery expenses (these are costs to be borne by dealer)we will of course honour our original warranty agreement (claim is not made under warranty but under rights bestowed by Consumer Rights Act 2015)for the agreed retail sale price of £13,250. We are also not legally due to transfer the vehicles V5 until all the funds have been transferred as you have now refused to sign the agreement we offered in good faith but have now withdrawn.

No refund will be forthcoming whatsoever "

The refusal of a refund is not really true. When I first called them about the mis-selling, I told them I would not return the car for a refund, offered them the option of a refund (by way of them coming and collecting the car) or £750 of the £2,000 owed. They counter-offered with £1,000 of the £2,000 owed. This was paid and was way before any faults came about with the car (.was this confirmed in writing?)

And 10 days before they asked me to sign anything. (Which I refused)

Comments in red

[elwon20]

Within the first 30 days it is for the consumer to show fault....

I was not aware of this. But good to know. Seems like an odd ruling that within 30 days it's up to the customer but after 30 days it's deemed to have been present the whole time... You'd think it would be the other way around, but I guess there's no point arguing the law itself.

"But you have indicated to credit card issuer that you would accept a repair, and if acted upon this will likely be implemented by dealer"
I guess I'll have to accept that then. If they repair it adequately I'll be fine with it.

"these are costs to be borne by dealer"
Does this imply that they can or can't charge me for them?

"was this confirmed in writing?"

I have text messages, screenshots of which I will attach.

I received no further communication after these messages until the 20th. Stating that they have received the v5 and would not transfer it until I signed this document:

"I [me] of [my address], agree to sign this document on the understanding that this concludes the sale in full and final settlement of any claims, past present or future to [dealership] / the vehicle - [vehicle details]. I knowingly purchased the vehicle for the agreed sale price of £13,375 but only paid £11,375 before leaving the premises and becoming intentionally uncontactable (plus a subsequent £1000 once we were able to eventually contact you to chase the balance owed after messaging you to say we would sorn the vehicle unless contact and the balance payment was made)

The Buyer and Seller shall agree that this transaction will supersede any other transaction. The buy agrees that this matter will now be resolved and waive any other rights. The Buyer shall not seek or solicit to damage the Sellers Business by means of slander or miss interpretation.

NOTE: The vehicle registration / V5 will NOT be transferred to [me] until this document has been signed and returned to us via email."

I naturally refused to sign such utter nonsense.

[des8]

Your rights are set out in the Consumer Rights Act 2015 (Consumer Rights Act 2015 (legislation.gov.uk) which is worth a read if you are going up against a trader!

When claiming for anything, it is always for the claimant to prove his case (be it a court claim or eg an insurance claim).
However Sec 19 (14) puts the onus on the trader to prove the goods were satisfactory in the event of the consumer exercising (among other choices) his final right to reject within the 6 months (except for the first month!)

Sec 20 (8) cost of return following rejection............."....the trader must bear any reasonable costs of returning them,...."
sec23 (2) (b) cost of postage (!) if requiring repair,,, trader bears "bear any necessary costs incurred in doing so (including in particular the cost of any labour, materials or postage)

I wouldn't sign that either!!

Besides the sec 75 claim you also have other options:
1) court claim, but as it will exceed £10,000 it will probably be allocated to Fast Track which runs the possibility of adverse costs if you should lose
2) have the repair carried out by a third party. At the same time obtain a written report from them confirming the fault must have been present when delivered. You can then pursue the dealer for your costs (damages), which will fall into small claims track if under £10000.

[elwon20]

Further developments today:

Myself:
Hi [dealership],
I would like to request a copy of all telephone recordings between [dealership] and myself that [dealership] hold under the Data Protection Act 2018.
Thanks.



Dealership:
Once you’ve paid the monies owed to ourselves you can have a copy them
Many thanks



Myself:
Hi [dealership],
I'm sorry, I think one of us maybe a little confused, i'd just like some clarification.

Could you please confirm that you hold one or more voice recordings of our conversation(s) that you made without notifying me at the time of the recordings, And are refusing to comply with my Subject Access Request under the Data Protection Act 2018 to provide me with a copy of these recordings.

Many thanks
[myself]



Dealership:
We’ve been advised by our company solicitor not to enter into any more conversations with yourself regarding this matter as you’ve stated you wish to now peruse legal action. You’ve been dishonest and fraudulent towards our company from the day of purchase and also committed extortion.

To avoid any legal / recovery action being taken against yourselves you have two options;

Sign the agreement that was sent via email last week in full and final settlement of any past / present / future claims against our company or the vehicle from the date of the email (28/1/21) and the matter will be considered settled.

Or pay the balance still owed for the purchase of the vehicle (£1000) plus our expenses for cancelled recovery (£500 plus vat) and we will then make arrangements with yourself to look at any warranty issues you may have. For this to happen as per our terms (signed copy attached) you are responsible to bring the vehicle back to ourselves for us to diagnosis and inspect before any warranty work can be authorised. Failure to comply with these terms will result in any warranty becoming void. (This is standard practice with any dealership).

Any further correspondence that isn’t to finalise one of these two options above will now be ignored.



I'm just speechless...

[des8]

So you have mentioned the possibility of initiating court action... what do you intend?
So not complying with a Subject Access Request ..... report them to ICO.

[elwon20]

Your rights are set out in the Consumer Rights Act 2015
Besides the sec 75 claim you also have other options:
1) court claim, but as it will exceed £10,000 it will probably be allocated to Fast Track which runs the possibility of adverse costs if you should lose
2) have the repair carried out by a third party. At the same time obtain a written report from them confirming the fault must have been present when delivered. You can then pursue the dealer for your costs (damages), which will fall into small claims track if under £10000.

Thanks for that... which (if any) route would you suggest? Or would I be better to await the s75 result first?

[des8]

S75 will possibly take up to 8 weeks+.
There is no reason for not initiating court action, altho' I would start by having the vehicle at least examined by a workshop to ascertain the problem.

Re reading that email from the dealers, I don't know whether to laugh or cry.
Ask them how their solicitor expects you to comply with the overriding objective CPR part 1 if you cannot communicate

[elwon20]

Given the choice between your two previous options my preference would be getting the vehicle repaired as soon as possible, even if it is at my own expense in order to take them to court for the costs later...

Would doing this conflict with the s75? Would altering/updating my s75 request to ask them to pay for the costs of repair be possible/a bad idea? Or would it be better to just wait out the s75 in this case?

My preference is to get the car repaired asap, either at their or my (initially) my own cost. A drawn-out battle with a dream car broken down on my drive will be more painful than a long battle with a working car and my bank account a little lighter.

[des8]

IMO you should have the problem diagnosed before deciding your next move.

S75 claim can be withdrawn at anytime, so let it continue until you know what you are going to do.

[elwon20]

I have just spoken with a professional on these particular gearboxes who has said based on my description he is *very* confident of what the fault is and that repair would be between £1000+vat and £1850+vat based on the condition of the individual parts within the gearbox.

With this in mind, I think I'd really like to get the gearbox repaired myself. Would it be possible to either

a: change the terms of the S75 to enforce them to pay for the repairs I've undertaken myself?
b: reopen the S75 to enforce them to pay for the repairs I've undertaken myself?

Or is it just a case of, if I get it repaired myself S75 is completely off the table, and I have to take it to small claims courts?

[des8]

Heard too many professional diagnosis following client's description of symptoms!
Have problem diagnosed properly before making any decisions