BMW Financial Services excess of mileage and arrears dispute.

[echat11]

Thanks Rob! I will do this today. For the subject access request, do I just contact them on their general phone number or is there a dedicated contact number I can contact them on?

Amend and Email it to them,

https://legalbeagles.info/library/gu...ccess-request/

Data Protection Officer
BMW Financial Services (GB) Ltd

DataPrivacyOfficer@bmwfin.com

[Mrs dee]

Hi Rob and ECHAT11. Sorry I have been absent for some time as I was waiting for a response from the BMW with my SAR request. Whilst I’ve been waiting for the copy of my agreement from BMW I have received an email from the Ombudsman’s investigator telling me that my case has been passed on to the Ombudsman now and in this case he doesn’t intend to find it necessary to wait for this information as he’s satisfied that we have the relevant copy of my agreement which they attached in the email to me.
If I attach a copy of my agreement here would you be able to have a look at it and advice me on the best response possible which I have to write to them by Friday the 17th of September?

THANK YOU.

[echat11]

Hi R0b can you please take a look.

[Mrs dee]

echat11 Thank you.

[R0b]

Is that the agreement provided by the investigator or the one given by BMW? Either way post them both up so we can compare but that one you have already uploaded is an incomplete agreement.

[Mrs dee]

HiR0b , it’s the agreement provided by the investigator and I still haven’t received my copy from BMW yet. The investigator has basically said in the email that Ombudsman doesn’t want to wait until I get my copy as he believes that he’s satisfied with a relevant copy of my agreement which they sent to me. I am quite annoyed that they don’t want to give me any more time till I get my copy.
I will email to BMW tomorrow again to remind them about my SAR.

[echat11]

Email the Ombudsman for an extension, remind them that they've asked you to provide the relevant evidence to support your complaint and you will be making sure that you fully comply with their request, it's not your fault that BMW are taking their time regards the SAR.

[Mrs dee]

echat11 Thank you. Yes, I will email the Ombudsman again today.
Just a thought, as I am soo sick and tired of it,what if I phone BMW and make some sort of an agreement with them to pay the amount they want from me? As a result of the Pandemic I am unemployed and I can offer them £50 a months towards the settlement figure. What do you think the implications of this move could be like?
What your thought on this R0b?

[echat11]

I would wait until the FOS has had time to consider the merits of your case. This won't stop you making an affordable agreement (only what you can reasonably afford, even if it's £10) after the FOS's decision, if the decision is favorable to BMW.

[Mrs dee]

echat11 Thank you
My husband is now very adamant wanting to settle it with them as he sees what it does to me and the mental impact is having on me. So,can BMW legally make me to pay more money then I can afford? Say, I’d be offering £50 a month but BMW decided to turn the offer down (which I totally expect them to do) and demand more of me but as long as I am willing to pay something towards it BMW wouldn’t have legal rights to press me more or would they?
Thank you.

[R0b]

If you pay up then it could be deemed an admission of liability and unless you get BMW to agree remove the markers as part of any settlement, you will still have them on your credit file for the next 6 years.

I would agree with writing back to the Ombudsman, suggesting you cover some or all of the points below as you feel necessary.

- You are concerned the Ombudsman is willing to proceed with reviewing the decision (a decision you consider flawed) based on what you believe to be an incomplete agreement. You can tell its incomplete because there are defined terms such as "Excess Mileage Charges" which have no definition in contained in those two pages.

- Equally concerning is the fact that BMW are presenting an incomplete agreement and selectively picking out the certain parts of the agreement that suit them, especially if the Ombudsman has asked for the agreement. It's dishonest and a probably nothing short of fraudulent misrepresentation on BMW's part.

- I am attached the remaining parts of what I believe to be the remainder of the incomplete agreement. Again we know this forms part of the agreement because at the bottom of each page, the version reference matches the one supplied by BMW e.g. it refers to Legal Version (19.0 July 2016).

- The decision is flawed because (a) it was based on an incomplete agreement submitted by BMW, (b) the investigators decision that the sums are not compensation is also wrong, because clause 8(iv) says:

If the Vehicle has exceeded the Maximum Total Mileage, you must pay us the Excess Mileage Charge for depreciation for each mile covered in excess of the Maximum Total Mileage, see page 1.

It is clear from above provision that the excess mileage charges are intended to represent the financial loss/value of the vehicle. In other words, the charges are a form of compensation, and since the definition of 'total price' under section 189 excludes sums payable for compensation, BMW are not able to recover this sum of money.

- Ask the Ombudsman to reconsider putting this matter on hold until you receive confirmation of the full terms. If the Ombudsman still chooses to proceed with his/her decision, state that you will be making a formal complaint about the service as it appears there could be an element of bias (link to complaint here). I can't promise the FOS would look into it but it would seem to be a serious procedural flaw and another reason why the FOS is a pointless ADR scheme.

Separately, you may also want to write to the FOS' enforcement team on the basis that BMW are in breach of their obligations under the FCA rules. In particular, their conduct breaches the Treating Customers Fairly principles, failure to ensure records are kept and maintained accurately if all they have supplied is pages 1 and 2 of the agreement not to mention it is dishonest and a misrepresentation of the terms of the agreement. If this is something you want to do, I'll dig out a template and send it over to you - you can forward directly to FCA's enforcement team and see what they say. Again, not suggesting something will be done about it but the more people that complain to the FCA, perhaps they will consider opening an investigation.

[echat11]

echat11 Thank you
My husband is now very adamant wanting to settle it with them as he sees what it does to me and the mental impact is having on me. So,can BMW legally make me to pay more money then I can afford? Say, I’d be offering £50 a month but BMW decided to turn the offer down (which I totally expect them to do) and demand more of me but as long as I am willing to pay something towards it BMW wouldn’t have legal rights to press me more or would they?
Thank you.

Excellent post by Rob.

They can't ask you to pay more then you can afford. You can provide them with a income and expenditure form that show's what you have offered is fair (taking into consideration your current circumstances i.e. unemployed etc), you will have priority outgoings that takes precedent over the debt.

Again this is covered by the FCA in how consumers should be treated in these circumstances.

[R0b]

I think you need to do what you think is best in this situation, as things could get worse and continue. If your mental health is suffering then maybe you should take your partner's advice and look to settle the matter, pay up and accept that you will have late payment markers on your credit file for the next 6 years.

If you do choose this path then you should make it clear in writing that this whole saga is taking a toll on your health and so you are making a payment on the basis of no admission of liability and reserve your right to bring a claim against BMW in the future. At least if you do pluck up the courage to challenge them in court at a later date, you could still hold them accountable.

[Mrs dee]

R0b and echat11 Thank you so much! Your invaluable advice has been an absolute help to me.
Yes, I definitely can feel the pressure on my mental health since this whole saga has begun. I already requested an Income and expenditure form which I just sent it in which I provided all the information regarding my current financial situation.
As I mentioned that I need to provide the Ombudsman with any additional information until 17th of September and in the this case where I decided to settle it voluntarily, would you advice me to write to the FOC now too to let them know that I am now pursuing a settlement agreement with the BMW?

Thank you.

[Mrs dee]

R0b I’ve also checked your amazing post about the incomplete copy of the agreement and let me tell you it’s the exact information I was looking for! But with me wanting it to settle it ,what if I still put my concerns in regards to the incomplete agreement to the Ombudsman but also mention that since my mental health deterioration I am now willing to come to some agreement with the BMW but without excepting a liability. What is the best way to put it across?