Voluntary Termination Of Vehicle Query

[bob0411]

Hi,

I'm seeking advice on voluntary termination of my car.

I'm dealing with Hyundai Finance (in reality Santander Consumer Finance).

They are insisting I pay a collection fee of £70 for the vehicle and are stating this is legally binding as it is in the contract I signed (finance agreement of the PCP).

I quoted section 173 of the Consumer Credit Act 1974 to them - "Conflicting contractual terms are void and not enforceable" and stated any additional fees above and beyond the 50% are not legal.

They are claiming they have been given permission by the relevant body to charge this fee?

I have therefore asked for proof in writing of this alleged permission.

They then stated they would go ahead and instruct their agents to collect the vehicle but the £70 would be added to my account and non payment would result in a default of payment being raised on my credit file.

I refused to accept this charge and insisted they go ahead and collect the vehicle and they are now claiming they will do so and treat the £70 as a separate issue until the matter is resolved, and in the interim will write to me confirming the 'proof' of permission for collections fees has been agreed.

My question is, has anyone heard of this supposed agreement (I'm guessing with the financial ombudsman) for collections fees to be agreed in addition to the 50% or are they talking twaddle?

Any advice appreciated.

Cheers,

Bob.

[bob0411]

UPDATE:

They have just mailed me a scanned copy of my finance agreement, stating I signed to agree the conditions.

I don't see any evidence of permission from the relevant financial body they promised to provide?

[Amethyst]

They are claiming they have been given permission by the relevant body to charge this fee?

would you be able to copy paste exactly what they stated ?

[bob0411]

would you be able to copy paste exactly what they stated ?

Sorry, this was only stated verbally over the phone by them, following my submitting the voluntary termination in writing. I asked for this alleged 'permission' in writing and all they provided was copy of my finance agreement.

[bob0411]

UPDATE 2: I received a further call from Santander Finance on Monday (from a different agent to the one I spoke to on Friday). I again stated under the terms of the Consumer Credit Act 1974 the collection charge was not enforceable and I wouldn't be paying it. They once again agreed to arrange for their agent to pick up the car and to pass my concerns regarding the collection fee on to their complaints team. The vehicle was duly picked up today (02/10), whereupon I was asked to sign the agent's paperwork which I refused to do on the grounds it would negate my rights under CCA 1974. I'm now just waiting for a decision on the collection fee issue. Hopefully they will concede that no fee is actually payable, I will update the forum once I get this decision.

[bob0411]

Update 3: I received a letter from Santander today confirming VT has been completed and they will be in touch regarding 'next steps' . When I rang to query what these next steps are they stated the vehicle was awaiting inspection as per 'BVRLA' guidelines. I stated BVRLA applies to commercial contacts not consumer ones and were therefore not applicable, the correct benchmark is 'fair wear and tear' as specified in CCA 1974. The agent I spoke to has added this 'complaint' to my existing one regarding collection fees and stated it could be up to 8 weeks before I get a decision!

I've therefore dropped an e-mail to the Santander CEO (found via ceoemail.com, a very useful site for raising high level complaints).

Further updates to follow!

[bob0411]

Update 4: I received an acknowledgement e-mail from the Santander 'executive communications' team last night confirming they had received my mail and would refer my case back to their complaints team. I received a call from them this morning, Basically they're denying their agent said what they said over the phone on 28/9 and that in their view I am liable for the collection fee as this is 'separate' to the 50% threshold quoted in CCA 1974. They were also about to confirm I was liable for any damages they identified as per BVRLA guidelines but I could see the way the conversation was headed and terminated the call at that point.

I've just mailed the executive comms team once more to express my unhappiness with the way my case continues to be handled by them and now awaiting an update from them,

I would therefore appreciate any guidance or support the forum members can offer me in the interim.

[bob0411]

Update 5: I've received a further call today from the Santander complaints team. They have basically rejected my complaint and have stated the £70 fee in their view is legal and justifiable. They are sending me a letter through the post today confirming their decision and have advised me to contact the financial ombudsman if I wish to take the matter further.

On a more positive note they have confirmed there are no damages payable.

adminnsk86 can this post please be moved to the correct section?

R0b I would appreciate some assistance on next steps.

Thanks

[Amethyst]

Moved for you It sounds like everything is quite standard and as expected so far. Once you have confirmation of their 'decision' in writing you'll be in a position to respond. Good news on the damages

[R0b]

Wait for the final decision to come through. Like any other finance company, Santander will argue that their charges are enforceable irrespective of you exercising your VT right. However, you are dealing with front line service and they will only do as they are told which is to try and recover any monies they can.

In fact Santander did exactly the same thing to me and tried to charge me £70 collection fee plus some more in damages to the tune of £115.00. In their wisdom they decided to apply default markers on my credit file. I then Issued a claim for breach of data protection for inaccurate data, and within 2 weeks they settled the claim for £1,300 (I was claiming £1,500) and agreed to remove all adverse markers.

You can read about it on the link below

http://legalbeagles.info/forums/foru...e-of-your-case

Once the decision comes through, we can work on your complaint to the FOS.

[bob0411]

Ok, I finally received the letter from Santander in writing today - copy uploaded below.

I note they've completely whitewashed the comments of the original agent who stated on 28th September they had 'permission from the relevant financial body' to charge me the collection fee and would provide proof of this.

They're now saying she only referred me to my contract which is a lie.

The complaints manager I spoke to on the 9th October openly admitted she had not listened to the phone conversation from the 28th so how they can claim to have 'fully investigated' my complaint is a mystery to me.

The promised transcript of the call which I've now asked for 3 times has not been forthcoming, funny that!

There's no mention of next steps by them, i.e. a further request for the £70 fee, so I'd imagine this will be coming separately.

So my complaint to the Ombudsman will be two-fold, firstly that they shouldn't be charging me the collection fee at all and secondly when challenged by me they lied to justify charging this in direction contradiction of the rules stated in CCA 1974, and then repeatedly lied again claiming the agent never said this at all.

Would appreciate your further input R0b

[R0b]

If they haven't provided you with the call recording, I would suggest you make a subject access request which is now free of charge. They have to respond within one month and as part of the disclosure exercise, they would need to supply you with all call recordings they have available. Usually call recordings are kept for around 3 months but could be as long as 6 or 12 months.

If you want an example letter of a SAR have a look at my list of templates, there is a short and long version.

As for your complaint, you will need to fill in the FOS' complaints form (click here). It's very easy to fill in and the crucial sections are on page 3 which are what happened about your complaint, how has it affected you and what do you want to resolve it. See below some example wording for each of the three.

What happened:

I wrote to Santander on [DATE] and terminated my PCP agreement. Santander collected the vehicle but wants to charge me £70 for a collection fee as per the terms and conditions of the agreement. I disputed this charge because Section 100(1) of the Consumer Credit Act 1974 says that if I terminate the agreement in accordance with Section 99 (this section says to terminate I must give notice in writing, which I did and Santander does not dispute), then my liability will be limited to one half of the total price payable under the agreement. The definition of "total price" under the CCA 1974 (Section 189) says that damages or compensation for breach of contract are not included as part of the total price under the agreement. This position issupported by the recent County Court case Mercedes-Benz Financial Services UK Limited v Cahalane (I included the transcript) where Deputy District Judge Ellington confirmed that, amongst other things, excess mileage charges were damages for breach of contract and under the definition of "total price" they cannot be recovered when the right to voluntary termination is exercised.

How has it affected me:

This has affected me in several ways, particualrly as I am having to spend lots of time and resource responding to Santander who appear to have ignored the CCA 1974 altogether. Acts of Parliament such as the CCA 1974 take precedence over common law contractual terms. I also believe that Santander are in breach of Rule 7.5.3 of CONC because they have not provided any clear justification as to why the contractual terms overrule the CCA 1974. It has caused a great deal of stress and inconvenience to me which is why I am now making this complaint.

What do I want to resolve it:

I would like £70 fee removed and for Santander to stop contacting me with regards to the PCP agreement which has now terminated some time ago.

[bob0411]

Brilliant, thanks R0b

I'll get the FOS complaint typed up and submitted this evening.

Thanks again.

[bob0411]

R0b

Latest update, no response to SAR request as yet from Santander (24 days and counting) but also no further requests for payment of the £70 collection fee either.

I can see the voluntary termination is now recorded on my credit file but nothing adverse in there as yet.

I also received an initial acknowledgement from the FOS on 17/10 and a further e-mail from them today (06/11) stating they're now in touch with Santander directly and will come back to me in the next 12 (!) weeks to further discuss my case.


Further updates to follow as I receive them.

[Em_r_ald]

So are the finance companies allowed to mark the credit files as voluntary terminated? I thought they should only show the contract as settled?