Mercedes after 5k in excess mileage

[Trouserkoff]

Re: Mercedes after 5k in excess mileage

You think it might be worth pointing out to them that if they issue a default notice then I will bring a claim as a means of preempting that action? You think that the idea that this might stop them has any merit?

Surely excess mileage charges are equally unenforceable wether £600 or £5k....if it's never been to court then it could be because the finance companies don't want to risk precedent OR the value in question is not worth the costs.....

Sounds like just being able to threaten a claim is bo guarantee that they will remove a default!

[R0b]

Re: Mercedes after 5k in excess mileage

I've come to learn that finance companies do as they please so generally if you owe them money I wouldn't expect them to back down on the threat of legal action if they choose to do something. You would need to send a letter before action which is the step before you issue proceedings so you would highlight it at that point, unless they have said they will record a default.

I agree it doesn't matter what the charge is but it wouldn't be commercially viable if the charges are a low amount, but if it's a decent amount then they may take the risk of issuing proceedings in the hope someone pays up, but equally risking a judgment against them, a county court decision is not legally binding but any recorded decision on this would be of persuasive authority for someone else to use as part of their claim.

I fully expect my claim to be settled but who knows, if Santander refuse to pay up what I am asking for, then it will proceed to court.

Your contract is clear on what you are liable for and they have no recourse.

[Trouserkoff]

Re: Mercedes after 5k in excess mileage

Well, I've asked them for a signed copy of my contract and I haven't had that yet.

I will follow up with a variation on what you said about not addressing my points.

If they mention defaults I'll tell them that I'll bring a claim.

[Trouserkoff]

Re: Mercedes after 5k in excess mileage

Well, having not heard anything for 2 or 3 weeks their copy of my original contract has not materialised.

i got a phone call from 'hannah' today asking if I'd received her last email. I actually couldn't find it in my mail box. She told me that they had a copy of my signed contract and that she would be forwarding it on and resenting the last email.

i explained to her that I didn't think that their position is enforceable and that the copy of the form that I signed showed that I had not accepted liability PRIOR to termination and therefore could not be held liable.

she told me that they would place it on hold for 2 weeks while I look at the (resent) email and that I should then contact them to tell them what I want to do.

i told her that if she altered my credit file then I would bring a claim. To which she replied "your credit file has not been altered,"

i asked her her what they would do next and she told me that they would likely forward it onto a debt collection agency.
she said that the claim was being correctly brought in line with BVLA guidelines.

so my question is:
if this is passed on to debt recovery, can they add charges on to the excess mileage that they think they are entitled to?
what happens at this poiint?

[Trouserkoff]

Re: Mercedes after 5k in excess mileage

Your contract is clear on what you are liable for and they have no recourse.

I got a reply restating their position and a second invoice today so I've just emailed them:

Hannah,
Having had time to digest the contents of your email as to why there is provision in the consumer credit act for you to claim excess mileage charges I would like to point out the wording in your contract which says that:
"Upon voluntary termination of the vehicle I may hand the car back with NOTHING MORE TO PAY,"
Any clauses in the contract that conflict with this (being as it is this clause that is lifted directly from the CCA) are forfeit.
You state:
"whether you are returning your car at the end of your agreement or upon use of the Voluntary Termination (VT) clause, as you have not exercised your right to purchase the car, an excess mileage charge will be raised should your return mileage exceed your total mileage allowance. This obligation is set out within the first page of your agreement, under key information. The provisions of the Consumer Credit Act that cover a customer’s right to VT their agreement do permit us to include any over mileage when determining what is 'not reasonable' upon the cars return."


But the excess mileage clause in the contract is an end of term clause being as excess mileage is unenforceable after a voluntary termination seeing as it conflicts with the principle of voluntary termination leaving the consumer with zero liability after the halfway point assuming the account has been kept up to date.


The "not reasonable" part of your statement is talking about unreasonable "wear and tear" and I would point out that my obligation is to take reasonable care of the vehicle. The car was regularly serviced and was in a good condition for a vehicle of that age.


I raised issues with you in my previous emails that related to the fact that I wasn't invoiced for any liabilities PRIOR to termination and therefore clauses in the CCA relating to "liabilities accrued prior to termination" couldn't in fact be considered to be excess mileage as you only billed me after accepting the return of the vehicle.


You also failed to address my issues with regards to the form that i signed prior to termination that you were using to point to me accepting this liability PRIOR to termination (which I had amended to show that I wasn't accepting liability.)


I kindly ask that you respond to my points as to why the excess mileage overrides the CCA and the contractual term inserted in there which says once i have complied with Paying more than 50% of the total amount payable then i will pay nothing more. The words 'nothing more' means just that, it doesn't mean contractual charges for breach of the excess mileage clause.

When you read section 99 and 100 together, the definition of total price carves out your liability in that it cannot include compensation or damages for breach of the agreement.


I think it fair that I ask that we bring this matter to a close before much longer and consider 60 days a reasonable amount of time for you to be able to address these and any other points I have raised. If you haven't responded in this way by 17th April then I shall assume that their lack of response is taken to be accepted that no further liability exists.
I would also like to put you on notice to say that if you carry out a future act or otherwise which causes a loss or damage to me, then i will not hesitate in bringing legal proceedings against you.


where do I stand legally if they sell the debt on to a debt management company?

[R0b]

Re: Mercedes after 5k in excess mileage

Personally I wouldn't bother getting into a slanging match sending emails back and forth.

Judging from the emails they are invoicing you based on the contractual excess mileage charge, which is not enforceable when you VT. even if you did sign a document the CCA says there can be no contracting out of a debtors right or liability.

As I say to everyone in this position it's entirely your choice as to what you want to do, you can either pay up or choose to fight the charges. The law is clear in that a lender cannot reclaim damages for breaching the terms of the agreement. Whilst there may be sympathy for the lender in that the car is of much less value, section 100 affords the protection of the debtor.

I would imagine that if the debt is sold on, then expect them to issue court proceedings if you fail to pay them. I would suggest you retain all correspondence in case this does come up.

Do you have any proof that the car has been serviced regularly throughout its time e.g. Did you make payments by card or cash?

[Trouserkoff]

Re: Mercedes after 5k in excess mileage

Had a policy where they took the money monthly and this paid for my servicing.
do you recommend ignoring a debt collection agency or responding to them.

in your experience at what point do they usually give up?

[R0b]

Re: Mercedes after 5k in excess mileage

If you have a copy of that policy then keep hold of it and any bank statements which back up the monthly payments. the more evidence you have to prove the car was in a reasonable condition the less likely a case against you if they try to argue something else. Remember the onus is on the claimant to prove their case. I am surprised however how you managed to rack up such an excessive mileage!

There's no guarantee that court action won't be taken against you whether it's Mercedes or a debt purchaser, more likely a debt purchaser as they've paid for the debt.

Again, I can't tell you what to do, I can only offer you the options and the choice is yours. Many people do end paying out because of the stress and hassle it can take on them.

If you want to pay up, negotiate a lower settlement and repayment plan or if you want to defend it, ill assist where I can.

[Trouserkoff]

Re: Mercedes after 5k in excess mileage

There's no guarantee that court action won't be taken against you whether it's Mercedes or a debt purchaser, more likely a debt purchaser as they've paid for the debt.

Again, I can't tell you what to do, I can only offer you the options and the choice is yours. Many people do end paying out because of the stress and hassle it can take on them.

If you want to pay up, negotiate a lower settlement and repayment plan or if you want to defend it, ill assist where I can.

this is their argument:


With regards to your comments stating the excess mileage charge was not accrued prior to termination; I feel it important to advise your total allowed distance was 77,000 miles and upon termination, your return mileage was 111,730 miles. For this reason, I am satisfied the mileage charge was accrued prior to your termination as you had already exceeded your agreed mileage allowance.

In addition to this, the amount of mileage covered on the vehicle for its age at the point of termination is not considered reasonable condition.

I appreciate the agreement does state there is nothing further to pay however, I feel it important to advise that this solely in relation to the amount of finance and does not relate to any potential end of contract charges.

I note your comments regarding the signed acceptance form but this does not negate your liability under the original terms and conditions of your agreement for excess mileage.

Whilst I appreciate your interpretation of the law, I maintain the invoice has been raised correctly and my position remains unchanged.

Should you remain dissatisfied, I would advise referring your concerns to the Financial Ombudsman Service for further review. Please note, without notification of their involvement, we reserve the right to pursue the outstanding balance.

They dont appear to be in any way hinting at negotiation

[RossHend17]

Re: Mercedes after 5k in excess mileage

Hi,

Did you get any resolution to this?

I have just been issued with a debt collectors notice for collection of my excess Mileage Charge.

[jaguarsuk]

Re: Mercedes after 5k in excess mileage

The ball is in their court, and they may threaten or apply a default in which case the choice is yours, call their bluff and if a default is applied then you take them to court for breach of data protection, or you simply pay them back what they say is owed.

Sorry to hijack the thread, but could you assist with the specific part of DPA to cite in relation to a default notice? A family member haven't entered into a CCA with a company, but also not paid them and the debt collectors are threatening to add a default to credit file. I basically just want to get them told before they even bother.

[R0b]

Re: Mercedes after 5k in excess mileage

Their circumstances might be different, what sort of agreement is it? if a family member hasn't paid then they can record a default notice provided that they have been told how they will use their information, or they will also say there is a legitimate interest in doing so. It also depends whether the payment amount relates to the subject matter i.e. the monthly rental for mobile phone contract or if it is secondary i.e. only relates to charges or fees.

[jaguarsuk]

Re: Mercedes after 5k in excess mileage

Their circumstances might be different, what sort of agreement is it? if a family member hasn't paid then they can record a default notice provided that they have been told how they will use their information, or they will also say there is a legitimate interest in doing so. It also depends whether the payment amount relates to the subject matter i.e. the monthly rental for mobile phone contract or if it is secondary i.e. only relates to charges or fees.

Okay, it's probably best I get some more info and start a new thread. Cheers for the quick response though

[Farks]

Re: Mercedes after 5k in excess mileage

Hi Trouserkoff, have you had any more contact with the Debt collectors?

K