Raymondo v BMW Finance

[Raymondo]

Hi R0b
i agree court will be the only way to sort this but don’t I have to wait until they put a credit mark on my name? Or can I just dispute this statement and request for excessive mileage?

do you recommend a solicitor or company I should use?

just checked today’s post and another letter came which reads quite awkward saying this is for your information only and you do not need to take any in relation to this document. At the top of the statement in brackets it states This is not a demand for payment)

the date of the volentary termination was on 11/06/2018 and the excess mileage was then added on the 18/06/2018 but if the account was terminated on the 11th with the voluntary termination isint this a new account and not the original one? Meaning the terms for the late payment weren’t agreed for this account but the original agreement for the purchase of the car back in 2015

[R0b]

File it away with all other documents you have from BMW.

Note on the cover letter that it says "We are sending you this because it is a requirement under the Consumer Credit Act." but there are two points to take from this. First, I believe under the CCA there is a requirement to send annual statements (I would have to double check this point) whereas that statement for a period of the last 6 months so in actual fact, it is not a requirement under the CCA.

Secondly, it is only a requirement under the CCA to send a statement of account if the agreement is still in force. As you've rightly pointed out, the statement confirms that the account was terminated on 11 June, so I can only presume that BMW are treating the agreement as still in force (hence the late payment markers they apply in following months) despite the voluntary termination. You could use that as an inference if the matter went to court.

That said, yes you do need to wait and see if they apply a late payment marker and then you can start looking at commencing legal proceedings. I can't recommend anyone and only suggest that you shop around but I imagine that a firm would see it as a risk because there is no binding authorities on this point so its likely going to cost you around £1,000 -£2,000 or even more if it went to trial. You wouldn't be able to reclaim this amount back as the sum is less than £10,000 so is likely to be allocated to the small claims track.

If you want to avoid that then you can by all means look at bringing the claim yourself, but I would caution you have to be very well prepared and put the effort in because if you don't, expect to lose.

[DJL74]

Hello,

I have been reading all the email trails with interest. I am in exactly the same position, having had the exact same letters (from Sue Bechelet).

My case has a slight twist to it. I had a change in circumstances and tried to change my BMW. I was told that the 'axxx' had fallen out of the second hand diesel market and the dealership basically didn't want the car back (the salesman said they were really interested in my car but then stopped communicating and told me the reasons why over the phone after I raised a formal complaint). I tried 5 other dealerships throughout the course of 2017/18 and could not exchange my vehicle for a reasonable price. Is this acting reasonably on my part - BMW were the ones who didn't - whether this can be of use if court I do not know.(Note - I had a change in circumstances which meant working away so my 45,000miles turned into 75,000 - however the car was immaculate and no charges were made on the condition)

I believe that this is a concerted effort by BMWFS to try and recover some of the monies in this market.

I approached BMW through Social Media - I tweeted them and they got back to me immediately and said they would be in touch. I received a call today from BMWFS who tried to explain what the debt was - the message had clearly not been transmitted through the Social Media team. - I knew what the debt was.

I have sent the template letters in regarding termination and putting my position all as per this message board.

One thing I took exception to during the call today was the lady on the phone said 'so you understand and accept the liability' - at this I accused them of being very sneaky and this was an inappropriate way of trying to lure people into a position.

They seem very keen to refer to the FOS all the time - but not to any legal precedence.

Can I request a recording of the phone-call - which they were very clear was taking place?

It does appear that Social Media is a very powerful tool but I fully intend to take this to court unless they relent - which I cannot see happening.

[Raymondo]

DJL74,
can you please keep in contact with me as your case progresses as I too see court as the only way out of this and anything we can help each other along the way would be invaluable

[DJL74]

I will do. I have submitted a subject access request as well. BMW claimed initially to never having received the letter and tried to delay the termination then on 2 separate occasions in telephone conversations with BMWFS they tried to 'trick' me into accepting the liability. on both occasions different representatives of BMW asked me 'so you understand and accept the liability?'. The consistent approach leads me to think there are bigger things at play here. They really do stress the FOS all the time and then clam up when asked about the CCA.

[Raymondo]

I had that a few times and ended up blocking their number so could no longer receive their calls, they emailed me a few times after but I always replied by post which initiated replies in the post.

[Raymondo]

R0b,
hello, I have received another statement from BMW with another penalty interest charge but this one is for £9 odd different to the £8 odd one they sent at first. I’m not going to get bothered over a few pounds per month going on so that can just be ignored.

i clicked on auto trader last night and noticed the car I VT’d is on there selling for more than they offered me as a buy back and advertised as a good price which in their definitions means it’s good to average for its year and current status. Not devalued by my exes I’ve mileage, even the cars around it a year newer and a year older were the same price with high and low mileage so mileage has no bearing on its value.

im off to pick up my new Landrover tomorrow and I won’t make the same mistake, this time I’m buying it outright to save the hassle.

[R0b]

Hi Raymondo,

Can't reply properly in your PM because the character count is limited to 2000 so I've posted up in here.

You will need to explain the background to the solicitor, and mention that you terminated the agreement in accordance with section 99 of the Consumer Credit Act 1974. You are afforded the protection under Section 100(1) which is limiting your liability to 50% of the total price. "total price" is defined under section 189 which excludes compensation or damages for breach of the agreement hence excess mileage note recoverable.

But in a nutshell your argument is breach of data protection for inaccurate reporting and possibly negligent misstatement. The main argument relies on the improper reporting by BMW of the excess mileage charges on your credit file for the reasons below:

1. They are reporting the excess mileage charges as late credit repayments. Excess mileage charges do not form any part of the credit that was advanced to you under the hp agreement, and therefore the reporting of it is inaccurate.

2. It gives a false and misleading impression to other creditors that you are late on your credit repayments when in fact this isn't the case as you terminated the agreement on X date. How can they continue to report the account as being late when the agreement no longer exists?

3. BMW is in breach of the guide (as approved by ICO) for reporting arrears and defaults. Although the guide doesn't specifically mention anything about late credit repayments, it does state that defaults should not be applied where the arrears are made up solely of fees and charges. Given that late credit repayments are a precursor to a default being applied, its therefore implied that late credit payment markers should also not be applied if the amount is made up of fees or charges. It would seem odd that you can do it for late payment markers but not for defaults which are more severe and the next stage. The guide at the end also refers to types of products and services where information is reported and one of those products or services is lease and hire purchase agreements. You'll see in the description box that it refers to monthly repayments which further points to the fact that information that should be reported is relating to the credit repayments, not simply fees or charges.

I've attached the SCOR Guidance and also an example letter before action (still a work in progress) which should give you a better understanding.

[Raymondo]

R0b,

thank you so much for your help, I now have a lot of reading to do in order to get my head around this, good job I’m retired and have time on my hands.

I know I’ve offered in the past if you would be willing to work as my solicitor and you have explained you can’t as you work solely for a company but I thought I’d give you first refusal at the offer again before I look into contacting a solicitor just in case your circumstances have changed.

kindest Regards

Ray

[R0b]

I'm afraid codes of practice dictates that I am employed by the company and cannot represent anyone else so its either a case of you going it alone or instructing a solicitor from a firm of solicitors to act on your behalf. As this particular issue is not clear cut (like a debt claim) I would expect that to be reflected in any fees they may charge you.

Alternatively if you have legal expenses insurance you could look at going through them and providing they consider you to have 51% or more prospects you could use their panel of solicitors.

As the value amount is less than £10,000 this is likely to end up on the small claims track so you won't be able to recover any legal fees. There's a number of firms that have popped up recently regarding data breach claims but you might wish to try Stephensons Solicitors (www.stephensons.co.uk) as I believe they have experience of HP agreements and excess mileage.

I wonder if pt2537 might be willing take a look at your case in this instance?

[Raymondo]

Thank you!

[Raymondo]

Hi R0b,

Just went through the letter you sent me and added the relevant data to make it relevant to this case, when I reached the end I noticed it mentioned compensation and dates to reply by. My intention has never been to get compensation from BMW and I feel this is not what I want but do however realise if I don't add weight to the possibility BMW could have an expense to pay they may drag it out longer or just ignore this. What is your advice on an amount of compensation and realistic time scale to reply?

The late payments have come on 18th July and the 20th August so I'm assuming the next one should come soon. is it worth waiting for the next one in order for there to be 3 late payments before I send the letter?

Thank you so much for all the time and effort you put into all of this, it's obvious to me you have a lot of knowledge to tap into and have spent so much time helping others, I really do appreciate it

Kindest Regards

Ray

· Pay <amount> by way of compensation which I consider to be a reasonable sum that reflects the effects of the damage to my credit rating, the difficulties in obtaining credit, the time and resources spend in relation to this dispute and taking into account similar awards given in previous case law.

The above offer shall remain open for acceptance until 4:00pm on <date>. at which point the offer shall be revoked. If you do not accept this offer or deny the allegations set out herein, please provide a detailed response no later than <date>.

[R0b]

Hi Ray,

You might well be wise putting BMW on notice now rather than waiting for the next round of late payment markers because if its approaching the likelihood is that it will probably be applied before a response is given, unless the stop the reporting. If they still continued to report adverse entries on your credit file, you would have grounds for claiming aggravated damages too. However, if you wish to wait for the next late payment marker thats entirely up to you.

As for the compensatory amount, although I appreciate that you might not be seeking any form of compensation, you may as well going in full force if you are entitled to it but you are right they could drag it out whether or not you pursue compensation. There has been recent case law on data breaches but the only one that closely resembles your issue is the Court of Appeal case Halliday v Creation Consumer Finance (if you have spare time you might want to read it as its not that long: http://www.bailii.org/ew/cases/EWCA/Civ/2013/333.html). In that case, Creation had wrongly reported data to credit reference agencies and upon realising, removed single entry. Halliday claimed damages for breach of data protection and the Court of Appeal accepted that this was a one off and the entry was not left on there too long. The award for compensation was £750.

The amount of compensation being claimed will depend on how much fees you pay for your claim, assuming you go it alone. For example, anything up to £300 will attract a fee of £25 for issuing your claim if done online and then a further £25 if it goes to a hearing. You can see full fees by click here.

Now, in an ideal world your claim should be based on two things: (1) compensation and (2) an order to remove all adverse entries reported to credit reference agencies.

The problem with (2) is that it is a non-money claim and therefore attracts a fee of £308 in addition to the money claim fee, and you can't issue a claim online so the money claim fee would be £35 to issue. As a litigant in person, you have a couple of options (option 2 you might get away with being a litigant in person):

1. Issue your claim online, and then state at the end of the claim you are seeking damages of X amount and then an order to remove all adverse entries reported to credit reference agencies in connection with the account beyond the termination date. The risk in doing this is that BMW are likely to instruct solicitors to deal with this and if they were savvy enough they would realise your claim is both money and non-money claim and might look to strike out the non-money aspect because you wouldn't have paid the correct fee, though in my view they couldn't strike out the money claim as you have paid the valid fee amount. In that case a court might ask you to pay the amount or that part of the claim would be struck out. If they don't realise its a non-money claim then you might very well get away with it if you are successful and it went all the way to a hearing.

2. Issue a money claim online and pay the correct fee. If you went down this route and you were successful at court, your only remedy would be for compensation that a court would award you. By winning your claim, it would imply that BMW are in breach of the Data Protection Act and therefore they should remove the entries automatically. If they continued to report them then you could make a further application for additional damages and then an order by the court to force BMW to remove the adverse entries. Slightly more long-winded than option 1 but it means you could use your compensation to fund the fees for your application.

Of course if money is no object then option 1 would be the easiest.

As for response times, 14 days is deemed the standard reasonable period of time. But you could also add an additional 14 days for them to provide a substantive response. For example, your offer remains open for 14 days from the date of the letter and then if they want to deny the allegations or provide a detailed response that would be a 28 days from the date of the letter.

Hope that helps.

[Raymondo]

Thank you! I will have a read up on the Halliday vs Creation Consumer Finance.

Option 1 May be best as money is no object but at the same time I don’t want anything struck out and ignored.

the credit mark has no effect as I’ve paid my mortgage and tend to buy things outright, it was just this one time I took the BMW out on a HP loan/rental and wish I never had.

I feel BMW will continue to do this to every customer if they remain unchallenged and as they really did piss me off with their poor customer service, I feel it’s only fair I make them pay for treating customers like this.

I will give BMW 14 days then I will instruct a solicitor to take the case to court with the help you have provided, thank you!

[R0b]

Well good luck with it and keep us updated.

Just make sure that the contents reflects your current position because it is still a work in progress example which covers everything.