Mercedes Benz - Ridiculous back and forth VT situation

[jonnyfeng]

So i VT'd my car back in September. The story so far...

I dropped the car off at the dealership i collected my new car from. They collected the car without me being there several days after i collected my new one. I wasn't present at the time of collection, so signed nothing to state condition etc.

I did sign the form they emailed me previously stating i wish to VT and also paid a remainder to clear the 50%

Several weeks after the car was collected i received a letter / Invoice explaining i would need to pay additional costs:

1 Excess mileage charges approx £2100
2 Incomplete Service History approx £700

I called them immediately to dispute the service history issue. I explained that the paperwork was all there to correspond this and they said they will look into it. When they mentioned the excess mileage charge i explained i do not wish to discuss this as i was simply proving the service history was correct therefore the car was kept in "reasonable condition"

A week later an advisory from MBFS called me to explain that the Service History was checked and all cleared. I then mentioned that due to this regardless of the mileage charge, the car was now deemed as reasonable condition. 50% had been paid, therefore the situation was complete and no further action could be taken. I was chuffed to say the least.

nearly 3 months later i was sat at home and heard a voicemail left from Mercedes Benz requesting i call them. I felt no need as i was no longer in contract with them, i assumed it was survey calls etc so thought nothing of it. Until i recieved a letter explaining there were overdue funds outstanding, simply quoting an account number without stating any figures.

I again chose to ignore this as i had confirmed over the phone several months earlier everything was complete.

I then recieved an email, which i responded to explaining the situation briefly and asking them to review the situation and to then please stop bothering me.

I recieved an email back with a forwarded email stating that after the service history issue had been cleared there was still outstanding funds. They didnt comment on the call i explained where i had confirmed all was up to date.

I emailed again explaining the situation further, and also noted at this point the CCA 1974 sections 99 and 100 further clarifying that excess charges arent something i need to pay as i cleared 50% and gave the car back in reasonable condition.

I was then emailed again :

"When carrying out a voluntary termination you are still liable for charges such as Excess Mileage. Due to this, I am not able to remove your charge.

If you remain dissatisfied with your complaint response you will need to escalate this to the Financial Ombudsman Service for independent review"

I replied as follows:

"Good afternoon,

Thanks for the response. I have several questions I would like answering.

1. When purchasing the vehicle, how come the salesman, explained to me that to get the car within my budget the mileage allowance could be lowered to accommodate the lesser price. They then told me that unless I keep the car until the end of the term this will not make a difference. If I voluntary terminate, It wouldn’t matter or If I traded in early. This is not something I have experienced at Mercedes but also with other manufacturers sales teams as well. It seems to be common knowledge and mentioned a lot from car sales teams. This shows to me that the training to given to sales teams may be misleading to encourage sales, which then turns out to be an issue come the end.

I feel this is bad practice. Could you explain why this happens frequently, as it did so in my case?

1. The Consumer Credit Act 1974 states that, in regards to car finance and higher purchase agreements, that, by law, when voluntary terminating the vehicle, the debtor must have paid 50% of the total value, and kept the car in reasonable condition. There is then nothing further to pay if these conditions are met.

You expressed in your last email “When carrying out a voluntary termination you are still liable for charges such as Excess Mileage” Can you please highlight where I need to be looking to clarify this, As I cannot find anything in Law that states that point to me? In fact it is expressed that I am liable for no further charges, as long as I have paid 50% of the total, and kept the car in reasonable condition.

Shown below are sections of the Consumer Credit Act 1974 which cover this agreement:

Section 99 – (The right to terminate the agreement at any time)

(1) At any time before the final payment by the debtor under a regulated hire-purchase or regulated conditional sale agreement falls due, the debtor shall be entitled to terminate the agreement by giving notice to any person entitled or authorised to receive the sums payable under the agreement.
(2) Termination of an agreement under subsection (1) does not affect any liability under the agreement which has accrued before the termination.
Section 100 – (Liability is restricted to 50%)
(1) Where a regulated hire-purchase or regulated conditional sale agreement is terminated under section 99 the debtor shall be liable, unless the agreement provides for a smaller payment, or does not provide for any payment, to pay to the creditor the amount (if any) by which one-half of the total price exceeds the aggregate of the sums paid and the sums due in respect of the total price immediately before the termination.

(4) If the debtor has contravened an obligation to take reasonable care of the goods or land, the amount arrived at under subsection (1) shall be increased by the sum required to recompense the creditor for that contravention, and subsection (2) shall have effect accordingly.
Section 173 – (Conflicting contractual terms are void and not enforceable)

(1) A term contained in a regulated agreement or linked transaction, or in any other agreement relating to an actual or prospective regulated agreement or linked transaction, is void if, and to the extent that, it is inconsistent with a provision for the protection of the debtor or hirer or his relative or any surety contained in this Act or in any regulation made under this Act.

(2) Where a provision specifies the duty or liability of the debtor or hirer or his relative or any surety in certain circumstances, a term is inconsistent with that provision if it purports to impose, directly or indirectly, an additional duty or liability on him in those circumstances.

1. I was told when I last spoke with the advisor in October who called me to let me know the service history had been recovered and was all up to date. That this was the end and no further action needed to take place. It was to my understanding that at this point it was proven that reasonable care was taken:

Due to having nothing mentioned on the cars condition report as unreasonable. The vehicle was then classified as reasonable condition. As 50% of the total was recovered. I was able to Voluntary Terminate according to the law as outlined above in sections 99 and 100 of the consumer credit act 1974.

Had there been further issues to dispute in regards to the mileage then why when I spoke with the advisor who explained all was now ok and the service history matter was resolved, would there be no further dealings and all is confirmed as being complete.

For you to start pursuing me again several months later is questionable. This is very contradictory and I would like to know why?

1. I would like to ask if Mercedes Benz financial is at a loss, if the amount allegedly owed is not recovered?

Please could you answer the 4 questions, clearly and concisely, using evidence to support, which I have set out clearly to you.


Sincerely"

I then didnt hear anything from them for several weeks until today which i received another response, explaining they have reviewed the situation, and are now again simply requesting that i take up this matter with the FOS.

At which point i have asked again that they answer my questions.

I feel this is going to go around in circles with them asking me to take this up with the FOS, and me requesting they answer my questions. Can someone advise me in regards to what to do at this point in time. I dont feel like i need to speak to the FOS as i feel they need to prove themselves to me rather than the other way around. I would happily ignore them as i feel this is in dispute they cant affect my credit rating?? but i feel it is on them to prove me wrong as opposed to the other way...

Any opinions or help appreciated!!

[jonnyfeng]

Re: Mercedes Benz - Ridiculous back and forth VT situation

bump?

[Kati]

Re: Mercedes Benz - Ridiculous back and forth VT situation

tagging [MENTION=71570]R0b[/MENTION] xx

[R0b]

Re: Mercedes Benz - Ridiculous back and forth VT situation

bump?

Afternoon, I will try and take a look at this later today and get back to you.

[jonnyfeng]

Re: Mercedes Benz - Ridiculous back and forth VT situation

Afternoon, I will try and take a look at this later today and get back to you.

Thanks! I have requested they send me all paperwork from the start of the of the agreement including the VT paperwork, which they have done. They have now called me today, and explained i have 30 days to provide them with a reference from the FOS in which case will postpone them pursuing me for collection.

Im pretty much fed up with this, and frankly i haven't got £2100 to pay them even if i wanted to give up. So i will just take it the whole way, and if they want to take me to court so be it. I would need advice all the way though!

Thanks again

[R0b]

Re: Mercedes Benz - Ridiculous back and forth VT situation

Do you have any proof that the service history was all there, are you able to verify which garage you took it to and perhaps get a copy of any receipts or invoices? Did you pay for the servicing by card and if so can you trace that to prove service history was done?

Depending on the type of service you get, the majority of it is simply a box ticking exercise to see the state of the car and its components. I presume that they are relying on a contractual clause which says you must have the car serviced at the right intervals and failing to do so will result in a charge. If that is the case then by virtue of s.100 and s.173 that clause is not enforceable.

Perhaps they may argue along with the excess mileage that the car is not in a reasonable condition. There's a number of counter arguments to that but do you have a condition report on the vehicle and if so what does it say? They have instructed someone to carry condition report and if there is nothing in relation to the mechanical soundness of the car then it ought to be deemed that everything is all reasonable.

Lenders see this as a money grabbing exercise when you VT and I'm not aware of anyone going to court over it but that's not to say it won't happen. It is helpful to ensure the car is serviced regularly to offset any arguments for excess mileage but in any event the onus is on Mercedes to prove the unreasonableness of the car not you.

As for your credit rating, no they should not apply a default to it but I would suggest you keep an eye on it whilst this is ongoing. Simply for the reason that it is common for them to apply for one and no doubt up the pressure on debtors paying up. If they have filed a default or not closed the account as 'settled' then you may have an argument for breach of data protection in terms of keeping information accurate and up to date. The ICO has provided guidance that if the amount is made up purely of fees or charges then no default should be applied. Your only recourse on that is complain to the ICO or go to court over it, which will probably force them to either counterclaim for the excess mileage or settle or just defend it.

You could go to the FOS but they seem to be batting them back and finding in favour of the lender.

[jonnyfeng]

Re: Mercedes Benz - Ridiculous back and forth VT situation

The matter of service history was cleared, i sent them proof as soon as they sent me the first invoice, they retracted this and then went on to say that i only owe for the excess mileage. Which is the only thing they are pursuing.

I back and forthed with them on email explaining that i dont believe i need to pay for this. then early this year they explained it was passed to complaints. I received a response in February saying they have looked in the matter as a complaint and found the following:

Thank you for taking the time to discuss your concerns with our De-Fleet department following our previous response to your concerns. Your correspondence has been referred to me to review and respond to accordingly.

From our records, your previous concerns were in relation to the service history charge raised and this was subsequently credited with our apologies. There was no record of your dispute regarding the excess mileage and this was therefore not addressed in our previous response. The response to your complaint was sent in October and a hold was placed on the file to allow you the time to contact us following this if necessary. Once this time had elapsed, our contact began again in December however, I apologise if the time between contact caused you any confusion.

I understand you are unhappy with the excess mileage charge raised following the return of your vehicle. With regard to your conversation with the supplying dealership; I am unable to comment on this as I was not present and in instances such as these, I am only able to rely on your signed agreement, a copy of which I have attached for your reference, as evidence of the terms agreed and your understanding of these.

Whether you are returning your vehicle 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 vehicle, 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. It is stated in your agreement under ‘Excess Distance’; ‘If the vehicle is returned to us (whether at the end of the period hire or an earlier termination), we will calculate the total distance travelled by the vehicle whilst in your possession (the “Total Distance”)’. The 50% payment term is in relation to the finance instalments only and does not include any end of contract charges which is why you would not have been advised of the excess mileage charge prior to the collection of the vehicle.

Your mileage allowance has therefore been re-calculated on a pro-rata basis in line with the length of time you have had the vehicle in your possession and I have attached a copy of the Voluntary Termination acceptance form signed by you confirming your agreement to be held liable for any damages or excess mileage following an inspection of your vehicle.

Please find below a breakdown of your excess mileage calculation for your reference:

Original Allowance: 40,000 miles
Term of agreement: 48 months
Terminated early by: 9 months
Revised allowance: 32,499.87 miles
Collection miles: 52,009 miles
Exceeded by: 19,509 miles
Pence per mile: 9 pence per mile +VAT
Total: £2,106.97

I would also like to kindly refer you to S99 (2) Consumer Credit Act 1974 where it states:

‘Termination of an agreement under S (1) does not affect any liability under the agreement which has accrued before the termination.’

As your agreement was subject to a mileage allowance prior to termination and you have exceeded the allowance of 32,499.87 miles, the charge has been raised correctly and remains payable.

A residual sale value was agreed at the start of your lease and this was based on the vehicle being returned in the appropriate condition, within the agreed mileage allowance and with a full service history. In instances where a vehicle is not returned in these conditions, we receive a lesser sale price for the vehicle than the once initially agreed.

I hope this has provided you with further clarification regarding your concerns and I trust the above has provided you with the reassurance that your concerns have been fully reviewed in line with our obligation to treat our customers fairly.

May I kindly ask that you accept this as our final response, however, should you be at all unhappy with our handling of your complaint you have the right to refer your complaint to the Financial Ombudsman Service, free of charge – but you must do so within six months of the date of this response. If you do not refer your complaint in time, the Ombudsman will not have our permission to consider your complaint and so will only be able to do so in very limited circumstances. For example, if the Ombudsman believes that the delay was as a result of exceptional circumstances. The Ombudsman contact details are Exchange Tower, Harbour Exchange Square, London, E14 9SR Tel:- 0800 023 4 567 or 0300 123 9 123, website www.financial-ombudsman.org.uk.

Yours sincerely,

I have since requested that they send me all the paperwork from the contract as i no longer had it thinking it was all done and dust before xmas last year. They have sent me this which is all photocopy and i cannot read any of the small print because it is all terribly quality.

[R0b]

Re: Mercedes Benz - Ridiculous back and forth VT situation

Ah I see,

Have you kept copies of all your correspondence and proof of receipts etc that you sent to them? If the quality is really bad then I would request that they send you the paperwork in a legible format. If they don't then you may have to do this under a Subject Access Request.

I would also like to kindly refer you to S99 (2) Consumer Credit Act 1974 where it states:

‘Termination of an agreement under S (1) does not affect any liability under the agreement which has accrued before the termination.’

That is true to an extent but is misleading. What it is saying is that you have the right to terminate the agreement but if you do, it does not affect any outstanding balance which is owed prior to the termination - that is the starting point. I believe Mercedes have in their clause something like any excess mileage will accrue immediately before termination of the agreement to try and get around the limited liability. That clause is too vague and uncertain because you cannot guarantee that someone will exceed the agreed mileage. Mercedes cannot determine the excess mileage until the contract has been terminated and the car returned to work out if any excess mileage is owed i.e. you can't accrue for something that may or may not happen, hence that clause being too vague.

Secondly, s.100 specifically states that if you terminate the agreement in accordance with s.99, then the debtor is liable for 50% of the total price. The total price payable to Mercedes does not include any compensation or damages for breaching the terms of the agreement. Therefore, s.100 has carved out any liability for breach of the excess mileage charge as void and unenforceable. S.99(2) referred to by Mercedes comes into play only in relation to any outstanding instalments.

s.189: definitions

'total price' means the total sum payable by the debtor under a hire-purchase agreement or a conditional sale agreement, including any sum payable on the exercise of an option to purchase, but excluding any sum payable as a penalty or as compensation or damages for a breach of the agreement

[jonnyfeng]

Re: Mercedes Benz - Ridiculous back and forth VT situation

Yes i thought that was the case. It seems everything in Mercedes Terms and conditions simply hints towards things and never specifically clarifies. I received another copy of terms from them in a readable format.

they state several times that excess mileage charges will be added if you were to complete the agreement, or if you terminate earlier than the end of the agreement. they dont specify VT unless that is supposed to fall under "early termination"

The part of the document where it does mentioned VT it doesnt actually mention mileage charges specifically. It makes me think that they may know they cant do this so word everything cleverly around this point.

I am concerned that when i did VT, i was sent a form that states i am liable for excess mileage charges. I was told i had to sign this to clear the small outstanding amount required to 50% and also to confirm that i want to VT. I did question this at the time as i read others didn't have to sign this form. I was advised they couldnt process anything without me signing.

Also i wasn't present at the time the car was collected so never signed to agree that?I only saw the report yesterday when i received all the paperwork i requested. All the paper work shows the car was in excellent condition.

So now i need to put a complaint in the the FOS. Is there any advise for writing this complaint?

Much appreciated!

[R0b]

Re: Mercedes Benz - Ridiculous back and forth VT situation

For clarity the statement in the agreement "Termination: Your Rights" is effectively an expressed term clarifying what s.100 says and in a much simpler way.

If you read Schedule 1 of the Consumer Credit (Agreements) Regulations 2010 (http://www.legislation.gov.uk/uksi/2.../contents/made) sets out the information required to be included in the agreement. Paragraph 30 explains that lenders must include a statement about how a debtor can terminate and the debtors maximum liability under s.100

Schedule 2 then sets out the statements lenders must include as part of the debtor's protection and remedies under the CCA. Form 9 is the same worded statement in your agreement and this specific statement gives effect to section 100 i.e. 50% of the total amount payable, outstanding instalments and reasonable care of the car.

As for the FOS, you simply download their form and submit your evidence filling in the boxes. A word of caution, they only look at whats fair and reasonable and as it currently stands they seem to side with lenders on the excess mileage and despite the wording in Termination: Your Rights clause saying if you satisfy the criteria you will pay nothing more. They seem to disregard the end of that sentence and say the excess mileage clause is in addition to that.

So if you do make a complaint, I wouldn't expect any positive news.

Also to add, there is no known cases which has gone to court and lenders have been successful on it. I would imagine they know there's a real risk they will lose and not least more people may become aware of the fact they lost. That's not to say the argument is bullet proof as it has yet to be tested, but from a pure legal perspective, my opinion would be that the law is on the debtor's side and they would be favourite to win.

[jonnyfeng]

Re: Mercedes Benz - Ridiculous back and forth VT situation

Well i can tell you now, they can pursue me as much as they want, i will see it through to the end regardless of outcome as i dont have that kind of money to pay them even if i wanted to!

So basically i will report everything to the FOS, await their findings, and then what?

What happens next?

Thanks again!

[R0b]

Re: Mercedes Benz - Ridiculous back and forth VT situation

I would expect the FOS to find in favour of the lender, they will send you a document saying whether you agree with their findings, if you tick yes then you are legally bound by their decision and you must pay Mercedes. If you tick no or don't send the document back within a period of time then it is automatically assumed you reject their decision and is not binding, Mercedes would be free to issue a claim if they wanted to.

Following that, it's anyone's guess. There has been one or two threads on here in which people have purportedly said a claim has been issued against them for recovery of excess mileage but then suddenly fail to post anything further. Whether it is a genuine claim I do not know, if it is good luck to them on their defence.

If I was speculating, Mercedes might apply a default to your credit file for the excess mileage and then you may have a cause of action against them for breach of data protection which, if you issued a claim would force their hand perhaps with a counterclaim for the excess mileage. Or they may simply pass the buck and sell the alleged debt to a debt purchaser who would more likely than not initiate a claim. The less likely option would be Mercedes bringing a claim themselves and I would be surprised if they did but anything can happen.

In the meantime, keep all documents and copies of correspondence you send/receive for the next 6 years as that is the time limit Mercedes has to bring a claim against you.

[shaunbent]

Re: Mercedes Benz - Ridiculous back and forth VT situation

[MENTION=97214]jonnyfeng[/MENTION] Is there any update on your case here?!?

I am about to VT my Mercedes and am concerned about excess millage charges.

[jonnyfeng]

Re: Mercedes Benz - Ridiculous back and forth VT situation

[MENTION=101332]shaunbent[/MENTION]

So far i have contacted the FOS, and had a good chat with them, I am in the process of writing a complaint and sending this over to them for review.

Mercedes have issues a collection agency to pursue me for the costs in the meantime, I have received the first letter this morning from them, and i am going to email them letting them know that i have a complaint with the FOS regarding the matter ongoing.

I plan to simply ignore the debt collection agency. and continue to pursue via the FOS.

Should FOS find in favour of Mercedes i will wait for them to send me a court letter, as mentioned previously i am not in a position where i can even contemplate outlaying £2106 so i have no choice really.

[xs2man]

Re: Mercedes Benz - Ridiculous back and forth VT situation

@shaunbent

So far i have contacted the FOS, and had a good chat with them, I am in the process of writing a complaint and sending this over to them for review.

Mercedes have issues a collection agency to pursue me for the costs in the meantime, I have received the first letter this morning from them, and i am going to email them letting them know that i have a complaint with the FOS regarding the matter ongoing.

I plan to simply ignore the debt collection agency. and continue to pursue via the FOS.

Should FOS find in favour of Mercedes i will wait for them to send me a court letter, as mentioned previously i am not in a position where i can even contemplate outlaying £2106 so i have no choice really.

They may not ever issue you a court letter though. That is what I have been doing, waiting for them to escalate it. They have not thus far made any attempt. In the meantime, they have put a marker against my credit file for a late payment, despite stating the account is settled, but leaving a balance of the amount requested for excess mileage. The upshot of this is that my credit file is completely trashed. So it looks increasingly as if I have to start proceedings to conclude this matter.

It's worth checking your credit file about this. I suspect Mercedes has done to you what BMW have done to me.