Voluntary termination - fair wear & tear

[R0b]

Re: Voluntary termination - fair wear & tear

hi Lauren,

I'll try and get back to you in full later today, I am happy to draft something up for you in response if you like but I wouldn't worry too much about what they are saying as it is all smoke to try and get you to cough up. Laura is just sending a standard letter that is worth the paper written on it.

How long ago was the car returned and when did they start requesting payment for damages? I will also suggest to send a short email back to GMAC and say you would like to invoke their complaints procedure on this matter or alternatively confirm that this is their final decision so you can have the option of going to the Financial Ombudsman. If it is more than 8 weeks since this has gone on then you should have a right to go to the Ombudsman by now. Bear in mind they will more than likely reduce the sum owed and you will need to resist. Ombudsman is hit and miss but if we try and include some legal points in there then the Ombudsman might sway in your favour.

[Laurenelias]

Re: Voluntary termination - fair wear & tear

Hello,

Thank you that would be great! The car went back around 18th March and I received the initial letter from shoosmiths last Wednesday I think so just over a week ago.

Good idea about emailing GMAC, I actually called them on Saturday as they sent me a default letter with 2 default payments one for March 2nd and one for April 2nd for the payments on the car! I originally wrote to them with the VT on February 9th and gave them 2 weeks notice to collect the vehicle and that I wouldn't be making any further payments so I was very angry to receive this letter especially since this will affect my credit rating now that they are saying I've defaulted twice?! Anyway long story short, the department that deals with it was closed (what a surprise!) so I told the customer service guy to put a note on my account and not to contact me again with any defaults as it is totally incorrect! I wanted to follow this up with an email also so perhaps the two can be sent together?

[R0b]

Re: Voluntary termination - fair wear & tear

I'll work something into it

[R0b]

Re: Voluntary termination - fair wear & tear

[MENTION=83966]Laurenelias[/MENTION]

I've knocked up a quick response to GMAC, take a read of it and if you are happy whizz it off. I preumse GMAC are contactable by email given some of the other threads on here but if not, send a letter and make sure to get proof of postage receipt.

I will do a similar one for Shoosmiths, and to give a copy of this letter later today.

Response to GMAC

[DATE]

Dear Sir Madam,

Agreement Number:
Vehicle Registration:

I am writing concerning the above matter in relation to my voluntary termination of the hire-purchase agreement.

I am concerned by the fact that despite handing the vehicle back in little over a month ago, you have decided to instruct a firm of Solicitors, Shoosmiths in an attempt to intimidate me into paying the alleged amount that you say is owed. May I point out that since the vehicle has been returned on 18 March 2016, at no point have you attempted to contact me to discuss the amount you claim to be owed. Instead, the first time I became aware of the alleged amount was when I received a letter from Shoosmiths on [DATE] claiming that there is an amount of [£ ] outstanding based on damage to the vehicle which falls outside of the BVRLA's fair, wear and tear guidelines, even though GMAC is not a member of the BVRLA. I find such conduct and behaviour by GMAC to be inherently unfair under s.140 of the Consumer Credit Act and in particular, the way GMAC has gone about its business in recovering the alleged amount.

As I have pointed out before, the vehicle was returned in a reasonable condition, and the damages allegedly sustained are wholly unsubstantiated notwithstanding the fact that you have failed to mitigate any losses. You appear to apply a set of guidelines that is used primarily for commercial purposes relating to leasing and renting commercial vehicles whilst using Manheim's commercial defleet services to inspect the vehicle and produce a report on the cost of repairs. GMAC then uses that report, with no intention of repairing the vehicle prior to auction as a method of recovering any losses due to my early termination of the agreement. The Consumer Credit Act only requires the vehicle to be in a reasonable condition however, this does not imply that the vehicle must be the same standard as if it were being used for commercial purposes. The vehicle was purchased and intended for private consumer use and was in no way used for business purposes.

Furthermore, i initially wrote to GMAC on 9 February notifying you that the agreement is now terminated and to collect the vehicle within 14 days. Despite failing to respond within a reasonable time, you purported to send me two default notices (2nd March and 2nd April) alleging that payments were outstanding. For clarity, there is no notice period required to terminate the agreement and so the default notices sent out are without merit and are not effective. Nonetheless, I will be monitoring my credit report and should any defaults appear as a result then I will view this as a breach of data protection insofar as GMAC failing to maintain and report accurate information. You will be aware that this gives rise to a claim in damages.

In the circumstances, please treat this [email/letter] as a complaint, which I expect you to respond according to your complaints procedure. I anticipate a full response to my complaint and any evidence which you rely upon that you feel justifies the current position. I would remind you that as a business that is regulated by the Financial Conduct Authority and in accordance with CONC 7.14.1, I expect that all further correspondence from Shoosmiths is suspended pending the outcome of GMAC's investigations into my complaint. If you fail to provide me with a response indicating your final decision on my complaint and 8 weeks have passed, then I will refer my complaint to the Financial Ombudsman without further notice.

I look forward to hearing from you.

[Laurenelias]

Re: Voluntary termination - fair wear & tear

Thank you so much for this. I will email this and probably post it also because the email address for GMAC is only for customer services (well I say that but they don't seem
To be able or willing to help or pass your email to the relevant department) and each time I've used it I get a reponse along the lines of 'the department you need is only
contactable via this number ************** please phone Monday - Friday 9-5. But I shall email and post

Do you work for legal beagles? I wonder if we can do something like mentioning your name to them as you have been so helpful in all of this! Or if we can thank you some other way?

[R0b]

Re: Voluntary termination - fair wear & tear

Thank you so much for this. I will email this and probably post it also because the email address for GMAC is only for customer services (well I say that but they don't seem
To be able or willing to help or pass your email to the relevant department) and each time I've used it I get a reponse along the lines of 'the department you need is only
contactable via this number ************** please phone Monday - Friday 9-5. But I shall email and post

Do you work for legal beagles? I wonder if we can do something like mentioning your name to them as you have been so helpful in all of this! Or if we can thank you some other way?

There's no harm in doing both, as long as you keep proof of it being sent. No I don't work for Legal Beagles lol, just volunteer my time now and again I don't think GMAC would really care about you telling them who I am, they will more than likely suggest that you seek proper advice rather than an internet forum

[Laurenelias]

Re: Voluntary termination - fair wear & tear

Lol no I didn't mean GMAC I meant giving your name to legalbeagles (if you worked for them) haha! I will send this to GMAC tomorrow - have put it off with it being a weekend. What shall I reply to shoosmiths in the meantime?

[R0b]

Re: Voluntary termination - fair wear & tear

Try something like the below.


-----------------------------

Dear Laura,

Reference number:

I am writing further to your letter dated [DATE] concerning your Client’s outstanding balance of £[XXX.XX] which relates to alleged damage to the vehicle under the conditional sale / hire purchase agreement between your Client and myself (the “Agreement”).

The amount your Client is claiming would relate to repairs that would put the vehicle in what would be otherwise deemed more than a reasonable condition and it is therefore unacceptable for your Client to charge more than is necessary for such losses it is alleging. On the face of it, the charges claimed by your Client may be construed as a penalty and as I am sure you are aware, penalty charges are unenforceable. Notwithstanding the above, your Client has so far failed to qualify or evidence how the charges represent a true loss of the vehicle and it seems to be purely a fishing expedition in an attempt to recover further monies as a result of the voluntary termination. I therefore require you to produce evidence which proves on the balance of probabilities, the market value of the vehicle in a reasonable condition, to the vehicle returned to your Client in its current condition.

Another point to note is you have referenced the BVRLA’s Fair Wear and Tear Guidelines. The BVRLA guidelines are used for the commercial leasing and renting of commercial vehicles, the vehicle under the Agreement is not a commercial vehicle nor is it used for any commercial purpose. Your Client is not a member of the BVRLA and your Client cannot rely on the fact that Manheim is a BVRLA member as the Agreement is between myself and your Client. Manheim has absolutely no interest or rights under the Agreement. Having contacted Manheim, they confirmed that the BVRLA standards are used when conducting inspections on de-fleet vehicles and not ordinary second hand used vehicles. Furthermore, your Client acknowledges that they have not paid for any of the repairs which they claim.

Your Client has therefore failed to mitigate their loss and is not entitled to the sums allegedly owed. You also seem to rely on section 100(2) however you fail to mention that the vehicle need only be returned in a reasonable condition and I am still yet to see any evidence that the vehicle was not returned in a reasonable condition. Small damage or scratches to a vehicle does not, on its own, determine whether or not a vehicle is in a reasonable condition. Claiming damages beyond a reasonable condition is contrary to the CCA which your Client is not entitled to. Accordingly, my position remains.

Please note that a formal complaint has been raised with GMAC and in accordance with CONC 7.14, any recovery of debt should be suspended pending the outcome of the investigation. Should you continue to request payment for the alleged debt, I shall have no other choice but to report you to both the FCA and the SRA for breach of the FCA Rules and SRA Code of Conduct.

[Laurenelias]

Re: Voluntary termination - fair wear & tear

Hello R0b,

Hope you are well

So after sending the above I have only recently had a reply from GMAC. Basically they sent a letter saying as a gesture of goodwill they would take off charges for blah blah blah bringing the outstanding to £548.

I obviously still don't want to pay and they also completely ignored my complaint about the default notices they sent. They also listed 'front left alloy gouged £55' in their list of charges they were taking off but it is still in their list of items we are being charged for?! Seems like they are just pulling amounts out of thin air that meet the so called fair wear and tear.

How shall I respond? Shall I try to write out ehatbtheybhaf written in their letter to give you better understanding of what they have said?

I haven't heard from shoosmiths again, they seem to of disappeared for now.

Thank you
Lauren

[R0b]

Re: Voluntary termination - fair wear & tear

Hi Lauren,

If you don't mind, or you can take a photo and send to Kati@legalbeagles.info and she can post it up - [MENTION=49370]Kati[/MENTION]

Looking at your thread, the date of the last email/letter for the complaint would have been 15 April give or take a couple of days for receipt? Therefore 8 weeks will be up on 10 June next month. Subject to what the letter from GMAC says, you can then raise a complaint to the Financial Ombudsman which I think will have better success against these guys at least.

Have you checked your credit file to ensure there is no default notice and your account with GMAC is now closed and does not show any outstanding balance?

[Laurenelias]

Re: Voluntary termination - fair wear & tear

Hello,

Ok I'll take a photo and send it to Kati thank you.

Yes it was a nightmare to get a response. They wouldn't reply to the complaint until y husband rung to confirm identity which was really tricky as he was away with work and then the department he needed to speak to was only open during hours when he was working so it took him a while to sort that out.

I haven't checked the credit file, how do I do that?

[R0b]

Re: Voluntary termination - fair wear & tear

Sounds like they are just being awkward gits. Quite happy to haves imply information to their solicitors but when a complaint is made they make life a bit difficult. Either way as long as a formal complaint has been made then that's all that matters I think.

If you go to www.noddle.co.uk you can sign up for free and get a copy of your credit report. This will show you your credit file along with ongoing history of payments and who they are with and also whether any defaults have been applied including CCJs form the court.

[Laurenelias]

Re: Voluntary termination - fair wear & tear

Sounds like they are just being awkward gits. Quite happy to haves imply information to their solicitors but when a complaint is made they make life a bit difficult. Either way as long as a formal complaint has been made then that's all that matters I think.

If you go to www.noddle.co.uk you can sign up for free and get a copy of your credit report. This will show you your credit file along with ongoing history of payments and who they are with and also whether any defaults have been applied including CCJs form the court.

Hello,

I sent the GMAC letter to Kati on Tuesday. I will sign up to noodle today and have a look at husbands credit file. I've replied via email to GMAC only to say that I am not accepting their response and will be in contact soon because it stated I needed to reply within 14 days from this letter otherwise they will send their final response so I thought best to send an email to give myself some extra time. Things are very busy here, work is busy and baby is now due in 4 weeks! Haha! Hopefully I can get this sorted, or at least pretty much sorted before baby arrives lol

[R0b]

Re: Voluntary termination - fair wear & tear

No worries, I shall wait for [MENTION=49370]Kati[/MENTION] to post it up. I doubt this will go as far as court but we can still process a complaint to the Ombudsman regarding this and get it dropped. If you do find something on there let us know, they should have removed all outstanding sums from the credit file since it has been terminated and they can't put the damages on there because they are not a recognised debt unless the court agrees in their favour.

[Kati]

Re: Voluntary termination - fair wear & tear

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