Raymondo v BMW Finance

[Raymondo]

Amethyst,
is that from my uploads? or is it a generic example?

just wondering if I’ve missed something?

[R0b]

The problem for BMW is that they have referred to 99(2) as meaning that they can claim the sums which 'accrued' before termination and their interpretation is that a sum like excess mileage is recoverable. My argument is that 99(2) actually refers to any sums that have already been paid, not sums that have been incurred and are payable.

It is well established in law that there can only be one legal meaning to a contractual term or statutory provision, not multiple. So if BMW are trying to suggest that 99(2) means sums which have been incurred but not yet paid, then since your liability is capped at 50% any amount that you have paid beyond this should be refunded back to you. Obviously this might not be much but it's certainly an argument you can make and perhaps they might change their position on that point depending on those who have terminated around the 50% mark and those who are much closer to the end of their agreement - they can't have it both ways.

Ultimately, they can tell you that they are charging interest on the alleged amount but if you make your position clear that you are not paying it because you do not lawfully believe you have to, and invite them to commence legal proceedings to enable a court to determine whether the amount is owed, then you may have a defence of a possible unfair relationship by saying that they were fully aware of your position and they in effect, sat on it deliberately to allow the interest to accrue before deciding to take any action. Whether that sticks or not is one to be decided by a judge but your primary defence is that you are not legally obliged to pay it.

I really don't know if BMW will take you to court but if they do decide to apply a late payment marker then the ball is back in your court to decide whether you pursue them.

[Amethyst]

Sorry, yes it's from your agreement terms posted http://legalbeagles.info/forums/foru...83#post1415183

[Raymondo]

Isn’t that agreement for the car which once Voluntary Termination has been done the excess mileage charge would be something else and not the same account?

i believed my account would be closed and paid after 50% of the total cost was paid

[Amethyst]

I would expect it's the basis bmw are using to charge interest on the 'arrears' - rightly or wrongly. Haven't done the math properly but the 'arrears' are £2200 ish? So 5.4% per annum is about right for that interest letter invoice.

[Raymondo]

R0b,

please see attached letter I intend to send to BMW Financial which includes the advice you gave as your opinion. Any further advice will be welcome before I send the letter tomorrow.

[Raymondo]

Oops sorry my cut and paste skills failed me and I chopped out a paragraph

[Raymondo]

The whole letter should read as...

Dear



Thank you for taking the time to write to me again after I said I would not respond to any further correspondence (obviously you’re not taking the hint).



I have continued to seek legal advice about this and have been advised to correctly inform you of the following.



The letter you sent is a standard letter where you are cherry picking parts of the CCA but missing out section 100(1) which quite clearly states that if I terminate under section 99 then my liability is capped to one half of the total amount. This provision is what is known as a limitation of liability, in the same way I see your/BMW’s limitation of liability clause in the finance agreement - it is a limit on what I can be liable for except in this case it is a statutory one and not a contractual, and statute law trumps contractual terms in the event of a conflict.



I respond to Laura Hayes letter dated 17/07/2018 ref REMACO/2182109 and ask her to explain what lawful grounds she believes that 'late payment interest charges' can be added and how much of these charges are being added, since she did not clarify in her original letter and was rather vague.



Secondly, I reject your offer to complain to the Financial Ombudsmanon the basis that the regulator looks at what is fair and reasonable and tends to disregard the law. However, there has been case law in relation to excess mileage where Mercedes Benz attempted to bring the same argument to court and lost their case.



The problem for BMW is that they have referred to 99(2) as meaning that they can claim the sums which 'accrued' before termination and their interpretation is that a sum like excess mileage is recoverable. My argument is that 99(2) actually refers to any sums that have already been paid, not sums that have been incurred and are payable.

It is well established in law that there can only be one legal meaning to a contractual term or statutory provision, not multiple. So, if BMW are trying to suggest that 99(2) means sums which have been incurred but not yet paid, then since your liability is capped at 50% any amount that I have paid beyond this should be refunded back to you. I work this sum out to be a total payment for the car including interest £24,913.90 and half of the total amount payable stands at £21,057.01 therefore I have actually overpaid by £3,856.88 and if we go by BMW’s view of the legal meaning BMW owes me £1,830.56 after the excess mileage has been taken from my over payment of the 50% liability, you can't have it both ways.

I would like to make my position clear, I will not be paying the excess millage charges because I do not lawfully believe I have to, and invite BMW to commence legal proceedings to enable a court to determine whether the amount is owed.

Your letter(s) suggesting that BMW might mark my credit file, I will be checking on a regular basic and if found I will issue a claim against BMW without further notice for a breach of data protection and breach of the CCA.



I invite you to look at this with common sense and see I have already overpaid and do not intend to pay the excessive mileage charges, you have the option at this point to cease the recovery of this charge and all will be forgotten but if not then this matter requires a court to make a decision and I will look to recover owed fees I have overpaid beyond the 50% liability I paid





I will not be responding to any further telephone calls, emails or letters unless it is a court summons

Yours Sincerely

[Raymondo]

Just realised I need to change a few your and my’s in the copied version before printing

[R0b]

Hi Raymondo,

Take a look at the attached and use what you want from it.

[Raymondo]

R0b,

Thank you!

im away on holiday with the family for a couple of weeks but will keep you updated on my return

raymondo

[Raymondo]

Can you recommend the best way to check me credit score? Never done anything like that before?

[Setmefree3]

You can use Noddle https://www.noddle.co.uk/

[Raymondo]

R0B,
I had a reply from BMW while I was away on holiday (Please see attached)

[R0b]

As I’ve previously mentioned, no change and the only way is to take matters to court. All it is really is just po By less back and forth correspOndence, you aren’t going to get anywhere without commencing legal proceedings as verified by the many threads on here.

so that in my view is the next step if you want to pursue it.