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** WON ** VT FCA nearly a year gone and still contacting very slowly

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  • ** WON ** VT FCA nearly a year gone and still contacting very slowly

    VT my fiat back in October 2017 and FCA want £410 excess mileage charges.
    Tags: None

  • #2
    Thank you for your patience whilst we reviewed your request and my apologies for the delayed response.

    Having assessed the account along with your dispute please see our response below.

    In the case of a Voluntary Termination (VT), the charges for excess mileage are not charged based on the law governing the VT rights or the finance agreement itself, but under the Common Law of Misrepresentation. Whilst the finance agreement determines what the mileage should be at any point in the term, the Common Law of Misrepresentation allows the business to recover the loss associated with additional depreciation in the event that the customer has exceeded the mileage allowance at any point in the contract; including if they utilise the option to terminate early. As such we are within our rights to recover the loss associated with this based on the fact that they potentially misrepresented their intended use of the vehicle. Please bear in mind that had the original mileage allowance been higher, the monthly payment would have been higher to reflect the additional depreciation over the term of the contract and subsequent lower final balloon payment. As such whether you pay the extra amount at the termination of the contract or over the monthly payments, you would still have had to pay for the actual use of the vehicle.

    Additionally the law governing VT’s refers specifically to costs resulting in damage or misuse. The relevant section of the law is the CCA 1974, Part V111 section 100 and states the below:



    Although we try to contact our customers as soon as possible regarding the recharge letters; please note we are under no legal obligation regarding the notice of payment. Under section 11 (c) of the terms and conditions you are to “pay us the amount due, if any, calculated in accordance to the terms of the HP agreement ….. any sums due to us for breach of the HP agreement must be made to us when you return or when we collect the goods or, if the amount of those payments is not known at that date, when we ask for them”

    I also understand you have been informed of any potential liabilities by the VT letter where it state’s under ‘Your First Steps’ point 4 that “repair any damage to your car using an approved repairer and clean it thoroughly”. Additionally it does say once we receive the report we will advise you of any charges for damages or excess mileage, we’ll tell you how much and how you can pay otherwise your liability under the agreement will end. It is in the terms and conditions of your finance agreement to ensure the vehicle is maintained.

    Comment


    • #3
      Well that response is nothing but a load of rubbish.

      Are you suggesting that you are still waiting for any additional charges on top of the £410 excess mileage?

      Check out some useful guides below

      A guide to voluntary termination
      Seting aside a CCJ
      Completing an N180 Form

      - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
      LEGAL DISCLAIMER
      Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Some of the content I post may include example wording, letters, or other similar responses but they are intended purely for informational and educational purposes. Using some or all of the content I post may fail to meet your needs that is specific to your situation. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice and you can do this through the Law Society's Find a Solicitor database, by contacting your local Citizen's Advice Bureau or legal advice centres such as LawWorks. You may also be able to seek legal advice from your local university who may run a free (but limited) legal advice clinic to members of the public.

      Comment


      • #4
        Common Law of Misrepresentation ?? ... that's a new angle, particularly as most ( it seems ) car purchasers ask for higher mileage then told to have lower by the salesman and that it doesn't matter anyway.... etc.
        “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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        Comment


        • #5
          Dear Mr Dymmock
          Thank you for your email.

          If you wish to dispute this further please contact British Vehicle Rental and Leasing Association (BVRLA) on the details below.

          We will pass on your details to our collections team to pursue the outstanding liability amount should payment not be made in due course.

          We are members of the British Vehicle Rental and Leasing Association (BVRLA). All vehicles returned to FCA Automotive are inspected in line with the British Vehicle Renting and Leasing Association fair wear and tear guidelines. This ensures that all customers are treated fairly with regard to any potential charges upon the vehicle return. Unresolved complaints may be referred to them by visiting their websitewww.bvrla.co.uk
          Many Thanks
          Kind Regards

          Comment


          • #6
            Update: what should I do next???
            really enjoy the posts on here learn something new everyday.

            Dear Mr Dymmock,

            Thank you for your email. You are correct in advising that we cannot apply a default to your credit profile for charges relating to damage or excess mileage and we do not do this; only the case of legal or contractual outstanding balances of which there are none on your contract. Please rest assured that there will be no negative marker associated with the current outstanding balance.

            I appreciate that the email dated 14th September may have been misleading as it refers again to our right to recover damages under the CCA 1974. This was only applicable to the damage charges outside fair wear and tear which had already been waived, not to the excess mileage charge. The ‘reasonable condition’ clauses that you are referring to in both the finance agreement and the law are not relevant when it comes to excess mileage. I apologise for any confusion caused by this, feedback has been provided to the agent.

            The email, however, does also advise that we are not claiming the funds for the excess mileage under the VT laws, but under the Common Law of Misrepresentation. Please see the snippet below:

            In the case of a Voluntary Termination (VT), the charges for excess mileage are not charged based on the law governing the VT rights or the finance agreement itself, but under the Common Law of Misrepresentation. Whilst the finance agreement determines what the mileage should be at any point in the term, the Common Law of Misrepresentation allows the business to recover the loss associated with additional depreciation in the event that the customer has exceeded the mileage allowance at any point in the contract; including if they utilise the option to terminate early. As such we are within our rights to recover the loss associated with this based on the fact that they potentially misrepresented their intended use of the vehicle. Please bear in mind that had the original mileage allowance been higher, the monthly payment would have been higher to reflect the additional depreciation over the term of the contract and subsequent lower final balloon payment. As such whether you pay the extra amount at the termination of the contract or over the monthly payments, you would still have had to pay for the actual use of the vehicle.

            The allowed mileage at the time that your vehicle was returned was 30,017 however it was returned with 36,862. Had it been returned, in clean condition, with the expected mileage, we would have anticipated it to sell for £6,350. With the excess mileage, it actually sold for £5,850. As you have pointed out, the car was in grade 1 condition and as such the additional depreciation can be attributed to the excess mileage. You will see that, whilst we have the right under the law to recharge our actual loss, which would be £500, we are charging the per mile rate which has worked out at a lower value for you.

            I hope the above explains why we are entitled to claim the balance for the mileage charge and as such the amount due remains outstanding and we would expect you to take steps to make the payment in due course

            Comment


            • #7
              You will need to post up the full chain of correspondence. As much as its all well and good seeing FCA's response, we also need to see what you have sent them.

              Long story short, their reliance on misrepresentation is a bit far fetched, but once you've posted up the chain of correspondence, I'll be able to give you an example response to use.
              Check out some useful guides below

              A guide to voluntary termination
              Seting aside a CCJ
              Completing an N180 Form

              - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
              LEGAL DISCLAIMER
              Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Some of the content I post may include example wording, letters, or other similar responses but they are intended purely for informational and educational purposes. Using some or all of the content I post may fail to meet your needs that is specific to your situation. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice and you can do this through the Law Society's Find a Solicitor database, by contacting your local Citizen's Advice Bureau or legal advice centres such as LawWorks. You may also be able to seek legal advice from your local university who may run a free (but limited) legal advice clinic to members of the public.

              Comment


              • #8
                This is everything from the 9th Nov 2017when I started the VT with Fiat.

                My Emai:
                9th Nov 2017

                Dear Sir/Madam,


                Re: Voluntary Termination

                Agreement Number: 20885593
                Vehicle Registration: WU64NGE

                I am writing this email further to your letter dated 6th Nov 2017.

                I am under no obligation to pay any fees for the collection of the vehicle. The Consumer Credit Act 1974 explicitly states that, my liability under the agreement is limited to half the total amount payable and any terms under the agreement which imposes additional liability directly or indirectly is strictly prohibited by the Act.

                May I remind you that I wrote an email to you on 6th Nov 2017 confirming termination of the vehicle, allowing 14 days for you to collect the vehicle which will shortly be on upon us.

                If the vehicle is not collected by 30th Nov 2017 I will cancel the remaining tax and insurance and notify the DVLA that you are the registered keeper. Please note that the vehicle is currently parked on a public highway and any subsequent liability shall rest with you, since you would of had more than a reasonable amount of time to arrange collection.
                I would therefore urge you to contact me to arrange a date to collect the vehicle at the earliest opportunity to avoid any issues with the vehicle. Alternatively, I am happy to deliver the vehicle to a specific location provided that you confirm in writing to agree to pay all reasonable costs and expenses in doing so.

                Yours faithfully,




                Mr Dymmock


                Fiat Response:
                Dear Mr Dymmock,

                I can confirm we have logged your intent to Voluntary Terminate. This will become irreversible within 24 hours.

                Our End of Contracts department will be in contact within the next 10 working days to advise you of the next steps.

                Kindest regards,

                Fiat Response:

                Dear Mr Dymmock,

                I am emailing you regarding the status of your voluntary termination which I can confirm has been actioned today.

                Our agents at Manheim Auctions have been instructed to inspect and collect the vehicle and their details are below:

                bookings@manheim.co.uk
                03331361025

                If you do not hear from Manheim within 3 days, please feel free to contact them to arrange your booking.

                Please ensure that you have the V5, MOT certificate (if applicable), service history and both sets of keys ready to give to Manheim’s collection agent.

                In order for the collection to take place successfully, the vehicle must be roadworthy and hold a valid MOT (if applicable). You must also have the original V5 document, the tyre tread depth must be a minimum of 2mm and the vehicle must not have any warning lights showing, etc. Failure to hand over the V5 or if the vehicle is not in roadworthy condition will result in the collection being aborted and you will be liable for the fee incurred which is currently £170.37.

                You must also ensure that you adhere to the arrangement with our agents, if you fail to be present the collection will be aborted and the abort fee of £170.37 will apply.

                Please remove section 9 (in yellow) of the V5 and send it to the DVLA the day the vehicle is collected by Manheim Auctions. The address of the Manheim Auctions branch (Motor Trader) is below:

                Manheim Auctions Bristol
                Ashton Vale Road
                Ashton Vale
                Bristol
                BS3 2AZ

                Please leave the VAT number blank and give the rest of the V5 to the collection agent. The agent may or may not sign the V5 however their signature isn’t required in any case.

                Please keep a copy of your V5 document for your records as you may need the document reference number at a later date.

                If you can deliver the vehicle to the above auction house the collection fee of £70 will not apply. Please advise Manheim Auctions if you would like to deliver the vehicle and they will arrange for an inspector to meet you onsite.

                If you do not get an acknowledgement from the DVLA within 4 weeks that you’re no longer the registered keeper of the vehicle, you must contact them to ensure that their records are updated. If they still have you as the registered keeper of the vehicle, you may receive penalties and/or be prosecuted for the non-payment of insurance/road tax. You can contact the DVLA via the website below should you have any queries:

                27th July 2018 Fiat Response
                Good Morning Mr Dymmock,

                I do apologise for the delay in response. I have now passed this onto management to review. Please see attached response letter to your dispute.

                I have removed the damage costs following the hand back of your vehicle, however the excess mileage charges do remain. When you terminate your agreement early you will be charges for any excess mileage, which is worked out Pro Rata, the full 40,000 would have only been allowed had you given the vehicle back at the agreement end. I have attached a copy of your original signed agreement for your reference.

                Fiat Response: this was a PDF file

                Dear Mr Deryck Dymmock Agreement Number: 20885593
                Our Fleet Department are experiencing high volumes so this was passed to my Team Leader to review for you.
                Please find below the findings and what she has removed:
                Remove
                Damage
                Front Alloy Wheel R - £60 Total amount removed - £60
                Keep
                Excess Mileage Charge - £410.70 Total amount payable - £410.70
                The photos are attached to show the damages of the vehicle before it was driven away.
                The outstanding balance of £470.70 has now been reduced to £410.70
                If are you looking to settle in full, please find our banking details attached to make a bank transfer, or you can call to make a manual payment over the phone or set up a payment plan for the remaining balance.
                If however, you are looking to dispute this further – please raise a complaint with the BVRLA who will act as an independent adjudicator regarding the damages. Their site
                is: http://www.bvrla.co.uk/advice/guidan...iation-service Thank you very much,
                Kindest Regards

                my response:

                July 27th 2018

                Dear Ms Sirett


                Re: Voluntary Termination

                Agreement Number:20885593
                Vehicle Registration:WU64NGE


                I am writing to you with reference to the above matter and your letter dated 18/4/2018 & 27/7/2018 Please note that liability in relation to the alleged outstanding balance for excessive damage to the vehicle is denied.


                The vehicle was maintained in a reasonable condition throughout the period of the agreement and therefore such damage charges you are claiming would amount to fair wear and tear; the vehicle does not need to be returned to you in any better condition other than a reasonable one. Photographic evidence was taken prior to the vehicle being transferred to you which clearly shows that the vehicle was in a reasonable condition. The onus is on you to prove that the alleged damage caused was more than reasonable fair wear and tear.

                Notwithstanding the above, I have paid circa over the 50% of the total amount payable and any alleged damage to the vehicle would be covered by these additional payments.

                My first email to you in realation to the above agreement was on 6th Nov 2017 I then again emailed you on the 21st April 2018 and you are now writing to me yet again 3 months later in July that would be 8 months since the car was handed back to you.

                I also note that the above vechicle was sold within three weeks of the transfer.

                The fair wear and tear guidelines are for commercial leasing and vehicle renting not personal use vehicles. FCA cannot prove they have incurred a loss just because it was sold at auction and the repairs are likely to put the car in a better condition than a reasonable one.

                My mileage was under the agreed 40000miles when I returned the vehicle.


                Please note that liability in relation to the alleged outstanding balance for excess mileage is denied.

                You have suggested in your letter that I am liable to pay excess mileage under the terms of the agreement, however this is not correct. Section 100(1) confirms that liability is restricted to one half of the total price payable. The CCA defines ‘total price’ as “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”.

                As you have already alluded to, the excess mileage is a contractual term of the agreement and therefore cannot be included as an amount which is owed. This position is further clarified under section 173 of the Act in that any contractual term which is inconsistent with any rights under the CCA and imposes additional liability, whether direct or indirect, shall be void and unenforceable.

                [I note that your letter refers to s.100 of the Consumer Credit Act insofar as the vehicle is not in a reasonable condition as a result of the excess mileage. Despite this claim, you have not provided any evidence outlining specifically the damage caused to the vehicle due to the excess mileage. I am of the opinion that the vehicle was maintained in a reasonable condition throughout the period of the agreement. Therefore, such damage charges you are claiming would amount to fair wear and tear and the vehicle does not need to be returned to you in any better condition other than a reasonable one.

                Nonetheless, the excess mileage clause is based on the principle of ascertaining an estimated value of the car, taking into account its age and anticipated mileage at the end of the hire period. The hirer is then offered the option to purchase the vehicle at the suggested price. Mileage which exceeds the stipulated amount under the terms does not however, mean that the vehicle is not in a reasonable condition.
                In any event, such sums you are alleging to be owed may only be recovered by a court order only and should you wish to pursue this matter in court, your application will be strongly defended.

                Please confirm by return that you agree to the payment above / this matter is now closed.

                Yours faithfully,

                FIAT RESPONSE 27th July 2018:
                Good Morning Mr Dymmock,

                I do apologise for the delay in response. I have now passed this onto management to review. Please see attached response letter to your dispute.

                I have removed the damage costs following the hand back of your vehicle, however the excess mileage charges do remain. When you terminate your agreement early you will be charges for any excess mileage, which is worked out Pro Rata, the full 40,000 would have only been allowed had you given the vehicle back at the agreement end. I have attached a copy of your original signed agreement for your reference.

                21st April 2018

                Dear Sir/Madam,

                Re: Voluntary Termination

                Agreement Number:20885593
                Vehicle Registration:WU64NGE

                I am writing to you with reference to the above matter and your letter dated 18/4/2018 Please note that liability in relation to the alleged outstanding balance for excessive damage to the vehicle is denied.

                The vehicle was maintained in a reasonable condition throughout the period of the agreement and therefore such damage charges you are claiming would amount to fair wear and tear; the vehicle does not need to be returned to you in any better condition other than a reasonable one. Photographic evidence was taken prior to the vehicle being transferred to you which clearly shows that the vehicle was in a reasonable condition. The onus is on you to prove that the alleged damage caused was more than reasonable fair wear and tear.

                Notwithstanding the above, I have paid circa over the 50% of the total amount payable and any alleged damage to the vehicle would be covered by these additional payments.






                My first email to you in realation to the above agreement was on 6th Nov 2017 and you are now writing to me five months later.





                I also note that the above vechicle was sold within three weeks of the transfer.





                The fair wear and tear guidelines are for commercial leasing and vehicle renting not personal use vehicles. FCA cannot prove they have incurred a loss just because it was sold at auction and the repairs are likely to put the car in a better condition than a reasonable one.



                My mileage was under the agreed 40000miles when I returned the vehicle.

                In any event, such sums you are alleging to be owed may only be recovered by a court order only and should you wish to pursue this matter in court, your application will be strongly defended.

                Please confirm by return that you agree to the payment above / this matter is now closed.


                Fiat 14th Sept 2018:
                Dear Mr Dymmock

                Thank you for your patience whilst we reviewed your request and my apologies for the delayed response.

                Having assessed the account along with your dispute please see our response below.

                In the case of a Voluntary Termination (VT), the charges for excess mileage are not charged based on the law governing the VT rights or the finance agreement itself, but under the Common Law of Misrepresentation. Whilst the finance agreement determines what the mileage should be at any point in the term, the Common Law of Misrepresentation allows the business to recover the loss associated with additional depreciation in the event that the customer has exceeded the mileage allowance at any point in the contract; including if they utilise the option to terminate early. As such we are within our rights to recover the loss associated with this based on the fact that they potentially misrepresented their intended use of the vehicle. Please bear in mind that had the original mileage allowance been higher, the monthly payment would have been higher to reflect the additional depreciation over the term of the contract and subsequent lower final balloon payment. As such whether you pay the extra amount at the termination of the contract or over the monthly payments, you would still have had to pay for the actual use of the vehicle.

                Additionally the law governing VT’s refers specifically to costs resulting in damage or misuse. The relevant section of the law is the CCA 1974, Part V111 section 100 and states the below:



                Although we try to contact our customers as soon as possible regarding the recharge letters; please note we are under no legal obligation regarding the notice of payment. Under section 11 (c) of the terms and conditions you are to “pay us the amount due, if any, calculated in accordance to the terms of the HP agreement ….. any sums due to us for breach of the HP agreement must be made to us when you return or when we collect the goods or, if the amount of those payments is not known at that date, when we ask for them”

                I also understand you have been informed of any potential liabilities by the VT letter where it state’s under ‘Your First Steps’ point 4 that “repair any damage to your car using an approved repairer and clean it thoroughly”. Additionally it does say once we receive the report we will advise you of any charges for damages or excess mileage, we’ll tell you how much and how you can pay otherwise your liability under the agreement will end. It is in the terms and conditions of your finance agreement to ensure the vehicle is maintained.
                I have attached the report for your reference.

                We have already removed damage charges of £60.00 as a gesture of goodwill; leaving the outstanding liability to £410.70. Due to the vehicle mileage being higher than expected the business suffered a significant loss on the sale of the vehicle. In light of the above we are unable to reduce the outstanding charges and you are liable to pay £410.70towards excess mileage. Please contact our team on 0344 5614738 to make payment, they can also assist with an arrangement plan if required. Alternatively you can make payment via bank transfer to the following details:


                my response 14th Sept 2018

                Dear Sir/Madam,

                Agreement Number:20885593
                Vehicle Registration:WU64NGE


                I am writing to you with reference to the above matter and your email dated 14/9/2018

                Please note that liability in relation to any excess mileage on the vehicle is denied.

                It is noted that in the letter you appear to purport that I am in default of sums owed under the agreement to the total of £410.70.Asyou will be aware, I invoked my statutory right under section 99 of the Consumer Credit Act 1974 which states that a debtor has the right to voluntarily terminate the agreement prior to the end of the agreement provided that he has paid one half of the total amount payable. Further to this, as long as the goods are deemed to have been taken reasonable care of, the debtor will not need to pay anymore.

                As the agreement was voluntarily terminated which was accepted by Fiat Financial Services, you cannot supply me with a notice of default under the agreement. Any attempt to apply a default notice in respect of my credit report to any of the credit reference agencies will be deemed factually incorrect and will have an impact on any future credit I may request. I therefore reserve the right to take further action including, but not limited to, commencing legal proceedings for defamation, breach of contract, negligence and malicious falsehood.

                Regardless of this, a contractual term cannot compel me to pay in excess of that set in statute law. The only requirement under statute law is that the goods are in reasonable condition (evidenced by the condition report of the vehicle you attached to your letter) and that in excess of 50% of the total amount due under the agreement is paid.

                If you wish to argue that the mileage on the car means the vehicle is not deemed to be in reasonable condition, please refer to section 18.4 of the agreement where at no point does it mention mileage as a contributing factor to determine that the condition of the vehicle is reasonable upon return.

                Please confirm by return that this matter is now closed.

                Kind Regards,







                Mr Dymmock

                Fiat Response 14th Sept 2018

                Dear Mr Dymmock,

                Thank you for your email. You are correct in advising that we cannot apply a default to your credit profile for charges relating to damage or excess mileage and we do not do this; only the case of legal or contractual outstanding balances of which there are none on your contract. Please rest assured that there will be no negative marker associated with the current outstanding balance.

                I appreciate that the email dated 14th September may have been misleading as it refers again to our right to recover damages under the CCA 1974. This was only applicable to the damage charges outside fair wear and tear which had already been waived, not to the excess mileage charge. The ‘reasonable condition’ clauses that you are referring to in both the finance agreement and the law are not relevant when it comes to excess mileage. I apologise for any confusion caused by this, feedback has been provided to the agent.

                The email, however, does also advise that we are not claiming the funds for the excess mileage under the VT laws, but under the Common Law of Misrepresentation. Please see the snippet below:

                In the case of a Voluntary Termination (VT), the charges for excess mileage are not charged based on the law governing the VT rights or the finance agreement itself, but under the Common Law of Misrepresentation. Whilst the finance agreement determines what the mileage should be at any point in the term, the Common Law of Misrepresentation allows the business to recover the loss associated with additional depreciation in the event that the customer has exceeded the mileage allowance at any point in the contract; including if they utilise the option to terminate early. As such we are within our rights to recover the loss associated with this based on the fact that they potentially misrepresented their intended use of the vehicle. Please bear in mind that had the original mileage allowance been higher, the monthly payment would have been higher to reflect the additional depreciation over the term of the contract and subsequent lower final balloon payment. As such whether you pay the extra amount at the termination of the contract or over the monthly payments, you would still have had to pay for the actual use of the vehicle.

                The allowed mileage at the time that your vehicle was returned was 30,017 however it was returned with 36,862. Had it been returned, in clean condition, with the expected mileage, we would have anticipated it to sell for £6,350. With the excess mileage, it actually sold for £5,850. As you have pointed out, the car was in grade 1 condition and as such the additional depreciation can be attributed to the excess mileage. You will see that, whilst we have the right under the law to recharge our actual loss, which would be £500, we are charging the per mile rate which has worked out at a lower value for you.

                I hope the above explains why we are entitled to claim the balance for the mileage charge and as such the amount due remains outstanding and we would expect you to take steps to make the payment in due course.







                Comment


                • #9
                  I have used your sample letters from the start of the VT which was back in October 2017.

                  i was in a lot of negative equity with this vechicle and i’m sure the GFV was set at about the £6000 mark had I continued the full payments.

                  Comment


                  • #10
                    Just found the GFMV £6074.00 had I gone full term.

                    Comment


                    • #11
                      As I mentioned previously, my view that FCA successfully claiming the excess mileage charges based on misrepresentation is somewhat a bit of a stretch. In order to claim misrepresentation, there has to be a false pre-contractual statement of fact which induces FCA to rely on that statement to enter into the contract with you. Then would then have to prove that had they become aware of the misrepresentation, they wouldn't have entered into the contract with you. Here are my reasons why:

                      1. The mileage was a statement of opinion and not a fact because the mileage you stated was (presumably) your reasonable opinion of how many miles you might do each year. It is an estimate at best and a statement of opinion or an estimate of any future event or action will not be regarded as a statement of fact.

                      2. The mileage became a term of the contract and therefore no longer qualified as a representation. Generally, where a statement is incorporated into the contract, it will become a term of the contract rather than a representation.

                      3. The stated mileage was unlikely to have induced FCA into the contract as it wasn't relevant enough, it was insignificant. I say this because FCA would have carried out a credit check which was more important to understand your financial history and whether you would meet your credit repayments on time. In other words, the annual mileage would not have induced FCA rather it would have been your credit history.

                      So, that all being said you might want to reply something along the lines of below.

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

                      Dear [name],

                      Thank you for your email of [insert date].

                      I note in that email you accept that you have no lawful right to report any default on my credit file in relation to the excess mileage charges. You also confirmed that you are not seeking to recover the mileage charges through a breach of contract but instead you are relying on the common law of misrepresentation.

                      Your interpretation that misrepresentation "allows the business to recover the loss associated with additional depreciation in the event that the customer has exceeded the mileage allowance at any point in the contract" is not correct. A claim for misrepresentation requires there to be a pre-contractual statement of fact by the statement maker which is relied upon and to induce the recipient of the statement to enter into the contract and, but for that statement, the recipient would not have entered into the contract at all. I do not accept that the mileage I said I would cover over the term of the agreement was a misrepresentation and my reasons are threefold:

                      1. At the time of speaking to your sales agent, I was asked to estimate the number of miles that I would expect to be driving. I therefore gave an honest opinion of the number miles I might cover on an annual basis; the mileage stated was both a statement of opinion and an estimate of a future intention. It is well established in law that neither statements of opinion nor estimated future intentions are considered to be a statement of fact.

                      2. The stated mileage was not in fact a representation rather it was a statement which was intended by both sides to be incorporated into the contract as a contractual term. Indeed, this is further verified by the fact that annual mileage has been clearly stated on the first page of the contract. The Courts have, on several occasions, confirmed that a statement which is incorporated into the contract, is unlikely to be considered a representation.

                      3. Notwithstanding the above, the stated mileage was not something which would have induced FCA to enter into the contract nor was it material. On the contrary, the decision to enter into the contract was largely the result of a credit check carried out by FCA to determine whether or not I would be capable of meeting the monthly repayments.

                      In the circumstances, I do not believe that your claim for excess mileage charges under the common law of misrepresentation has any force and my position remains the same, namely that the charges are not recoverable by FCA. If, however, should you choose to pursue this matter, then that is entirely your own prerogative but I am fully prepared to defend any claim brought against me.

                      I trust that this response clarifies where I stand and I do not expect there to be any need for further correspondence except where legal proceedings have commenced.

                      Yours faithfully,

                      [Your name]
                      Last edited by R0b; 17th September 2018, 16:34:PM.
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                      Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Some of the content I post may include example wording, letters, or other similar responses but they are intended purely for informational and educational purposes. Using some or all of the content I post may fail to meet your needs that is specific to your situation. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice and you can do this through the Law Society's Find a Solicitor database, by contacting your local Citizen's Advice Bureau or legal advice centres such as LawWorks. You may also be able to seek legal advice from your local university who may run a free (but limited) legal advice clinic to members of the public.

                      Comment


                      • #12
                        Many thanks for the response I will get this emailed ASAP and again post FCA response here.

                        Comment


                        • #13
                          WoW Amazing......here is Fiats Response 17/9/2018
                          Thank You Thank You!!!!

                          Dear Mr Dymmock,

                          Thank you for your email. I have taken legal advice on your comments below.

                          I appreciate that you feel that the mileage agreement section of your contract is an estimation and therefore not legally binding or a statement of fact, however please be aware that you signed a contract saying that if you exceeded the mileage you would be bound by the terms of the contract and would be responsible for the additional mileage covered on a pence per mile basis. Whilst it can be argued whether this is deemed to be a statement of fact, it has been successfully defended as such in a court of law in exactly these circumstances. It is true that we don’t expect our customers to know exactly what their intended mileage will be over a term and their use may vary depending on changes in their circumstances and we will always take this into consideration. In the case where the excess mileage is minimal or does not impact the value of the vehicle, this charge would often be waived.

                          Whilst you believe that the mileage is not a decision making element of our acceptance of the contract, please bear in mind that the agreed mileage allowance is used to determine the future value of the vehicle and therefore, along with the term and deposit amount, the monthly payment. If the mileage allowance is underestimated considerably this could impact whether a decision to lend is accurate. For example your previous agreement with FCA AS was for £181.25 a month based on 10,000 miles a year. The new agreement was for the same mileage allowance but the monthly payment increased by almost 100% to £360.31. Had the mileage allowance been increased to 12 or 13,000 miles annually this would have decreased the balloon amount and increased the monthly payment; potentially raising the question of affordability.

                          Despite the above, and taking into consideration the strength of feeling relating to this charge, we do not believe that it is financially viable to pursue you for this balance and as such we will be waiving it. I will arrange for this be completed by the end of the week.

                          I trust this resolves your enquiry with FCA Automotive Services and you are satisfied with the resolution.


                          Kind regards,

                          Comment


                          • #14
                            Well done, glad to hear they have now agreed to write it off.

                            I think the email is a bit of saving face and don't want to admit that perhaps their argument on misrepresentation was a stretch. In the grand scheme of things, the amount they are seeking over the term of the agreement is not a significant cost in proportion to the credit value that would have been supplied to you. Whilst they are suggesting that an increase of 2,000 or 3,000 miles extra per annum may have raised the question of affordability, that's simply that person's opinion unless they are prepared to share how the affordability and credit checking criteria - which I highly doubt they would do.

                            Anyway, a win for you but I reckon they probably wrote this one off due to commercial viability.

                            Amethyst can you move both mine and Deld's post to his original thread as this is on the wrong one.

                            http://legalbeagles.info/forums/foru...ng-very-slowly
                            Check out some useful guides below

                            A guide to voluntary termination
                            Seting aside a CCJ
                            Completing an N180 Form

                            - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                            LEGAL DISCLAIMER
                            Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Some of the content I post may include example wording, letters, or other similar responses but they are intended purely for informational and educational purposes. Using some or all of the content I post may fail to meet your needs that is specific to your situation. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice and you can do this through the Law Society's Find a Solicitor database, by contacting your local Citizen's Advice Bureau or legal advice centres such as LawWorks. You may also be able to seek legal advice from your local university who may run a free (but limited) legal advice clinic to members of the public.

                            Comment


                            • #15
                              Certainly. WELL DONE !!! That was bloody quick legal advice they got
                              “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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