VT Issues

[kezyvette]

Good afternoon, I hope it is okay to start a new thread here, R0b ?

I have VT'd my car and would like to ask a few questions before contacting FCA Automotive Services regarding the claims that they are requesting.

To cut a long story short, I enquired about the possibility of VT mid September.

When I took out the finance for the vehicle I was never given a copy of the agreement (only the new car order form, registration information, information about GAP insurance and the service plan that I took out).

As I was never given the agreement pages, I asked FCA for a copy to be sent to me which they did. I have attached a copy of this (Agreement 1, 2 and 3).

After reading the agreement that they sent, the relevant box regarding termination says
'TERMINATION: YOUR RIGHTS
You have a right to end this agreement. To do so, you should write to the person you make your payments to. They will then be entitled to the return of the goods and to half the total amount payable under this agreement, that is £7,442.16. If you have already paid at least this amount plus any overdue instalments and have taken reasonable care of the goods, you will not have to pay any more.'

So it seemed very straight forward. I knew that I had paid more than 50% so I called them to begin the process.

On the phone they then informed me that I owed £219.01 for 'value added products' and said that this was the GAP insurance. I explained that having been paying monthy installments for 3 years of the 4 year agreement £219.01 seemed a very high amount to still owe and requested that they send me a breakdown of exactly how the £219.01 existed. The person that I spoke to confirmed my e-mail address (having e-mailed me the agreement earlier that day) and said that they would send the information through.

I will attach the e-mail thread that followed (email 1,2,3,4,5,6,7 part 1 and 2 and 8) during which I am quoted 2 different prices for the 'value added products' - £219.01 and £218.96. They have also given various figures that don't seem to add up such as stating that £399.00 and £50.68 equals £450.00 which it doesn't. Also note that in 'email 3' they have used the incorrect title of 'Mr' and I don't know what 'email 4' is about, as they have recalled an email before I had chance to see it.

I will also attach the Ts and Cs (21473278 - T&Cs) that they attached in the e-mail thread however, as I stated, I was never given any Ts and Cs when I took out the finance and the ones they have sent me are dated August this year and not signd by myself (because I was never shown any or given any).

I carried on with the VT process using one of your template letters which I e-mailed on 29/9/18 and sent in the post (a copy of this is also attached 'VT letter'). I recieved e-mail confirmation of acceptance of VT on 1/10/2018 and on 2/10/2018 they sent through details of the collection company that the case had been passed to. I then replied to this using one of your templates. A copy of this is attached ('Collection email). I took photographs of the vehicle on the day that I sent the VT letter and the vehicle was not used again until the collection company took it away.

I contacted Manheim and arranged the collection myself (the earliest that they could do this was 8/10/2018) and my husband was present while they conducted the assessment. They found things that we did not agree with (such as a chip in the windscreen) and the collection man advised us to sign to say that we disagreed with his findings so this was what my husband did. We haven't recieved evidence/documentation from the collection department.

Yesterday (2/11/2018) I recieved a letter from FCA but this was dated 24/10/2018. This claims that I now owe £219.44 for the 'multipart settlement' and £550.99 in 'damage recharges' and collection fees. A copy of this letter is also attached (FCA letter 1 and 2).

I am not sure what to do going forward. I only recieved the letter from FCA on 2/11/2018 but as their letter was dated 24/10/2018 and gave me 14 days, that only leaves me 3 days to act.

My understanding from previous threads is that I am not liable for the £550.99 but that the £219 ISH is not as clear? I obviously don't want to pay anything that I shouldn't and I don't have lots of money!!

Thanks so much in advance (and sorry for the long message - hopefully it has all the information you need!!)

[kezyvette]

Thank you very much R0b it's really helpful.
I will definitely look into the Barclays case and see what I can find but if you do think you have anything that I can adapt that would be very greatlfully received!!
I am also going to try to get in touch with the Ombudsman again to further complain about the threatening behaviour from FCA. I will also look into the financial conduct authority route as well.
How will I know if they have applied a negative report to my credit file? Is there a way that I can check or do they have to inform me? At the moment all the wording has been that they 'may' or 'might'.

Thanks again!

Kind regards

[R0b]

Hello

Sorry I did read your post but didn't feel like it warranted a response though I admit I missed the last part of your post about further help.

I think in short, there's not much you can do other than to complain to the FOS about their conduct and continued threatening behaviour despite a formal complaint being investigated. You could report them to the Financial Conduct Authority's enforcement team by making a complaint about their conduct and how they are deliberately breaching the FCA rules, particularly their obligations under CONC which they are required to abide by as part of their authorisation.

You could also write to FCA (the finance co.) and point out their poor behaviour and conduct and inform them of your intention to report the matter to both the FOS and the FCA as it is unacceptable on their part. I'm sure there was another thread not too long ago where Barclays were doing the same thing and I believe the poster had received a small compensatory award after Barclays acknowledged that what they did was wrong.

Other than the above, the other options would be to commence legal proceedings, either for data protection breaches and/or negligence. If FCA do apply a negative report to your credit file, that could potentially open it up to you bringing a claim under Section 138D of the Financial Services and Markets Act 2000 (FSMA). Under Section 138D, you are able to bring a claim against an authorised firm where you have suffered a loss as a result of any breach of a rule by the firm. I should point out that there is almost non-existent case law on this as it is rarely used but I believe it is a possible action against FCA in addition to the other claims you may have against them if you went down the legal route.

I'm afraid for the majority of people who come as far as you, they are reluctant to go as far as taking legal action and so they get stuck with negative reports on their credit file and do nothing about it. Unless it is challenged, finance companies will continue to use and/or abuse their position in order to coerce you into paying up.

I can assist you wherever possible but ultimately, it's up to you to weigh up the options.

Try to do a search about Barclays and FCA complaint as there might be some template examples floating around, if not I will see if I have any that you could adapt if you wish to write to the Financial Conduct Authority and/or the FOS or FCA.

[kezyvette]

Hi R0b I completely understand that you're probably very busy. I was just wondering if you had managed to have a look at the couple of posts I've submitted and suggest any more advice?

Kind regards

[kezyvette]

emmapar8899 glad it's been helpful!!

R0b - the position that I am currently in is that I have ceased contact with FCA and have forwarded all correspondance between myself and them to the ombudsman.

Worryingly about 10 days ago I received an e-mail from the ombudsman stating that a complaint had been made against me and a copy of the form that I initially completed to lodge the complaint to the ombudsman was attached. The e-mail asked me if I had received a complaint from the 'consumer' and if so to provide deails. My understanding is that I am the consumer so I believe that the e-mail was intended for FCA. I queried this with the ombudsman and heard nothing back from the ombudsman.

In the last e-mail correspondance with FAC (which I sent above - post #41) FCA addressed the issues of the GAP being sold by the FCA sales adviser, the fact of the unilateral termination of the GAP agreement and the involvement of CRA's. I don't feel that they have satisfied these, more fobbing off. I also (personally) feel like offering me a repayment option is just another way of trying to convince me to pay something I shouldn't have to?
Anyway, they gave me 14 days to repay which I ignored and on the 13th day they sent me a letter saying that they 'MAY' send my details to the CRA's and enforce charges. I can't remember the exact wording of this letter - I can attach a copy or quote it if needed but both my husband and I noted how every time they seemed to make a 'threat' it was worded as they 'may' or 'might'.

Any help or advice would be greatly appreciated!! Starting to worry at this new thought of CRA's (naturally, I'm sure it's why they do so!!)

[emmapar8899]

kezyvette I am finding myself in exactly the same situation as you and am I little lost with it all so finding your thread has been most helpful. FCA are now trying to claim for over £1300 of damages to my fiat 500, which the auction staff called 'immaculate'. I will be fighting my case but it seems never ending at the moment. I am also having the same issues as you in regards to GAP insurance etc.

[kezyvette]

R0b I have decided to forward copies of all email correspondence between FCA and myself (including last week's emails) to the FOS. I did this on Wednesday in light of the above email from FCA which I did not reply to. I could be wrong but I feel like I have done everything that is reasonable to resolve this with FCA and it's now a matter for the FOS to deal with?
Also, interestingly FCA said that my subject access request would be in the post on Thursday morning however I still haven't recieved this. How long is reasonable to wait for this?
Kind regards

[kezyvette]

R0b Hi, yes I did although I slightly tweaked it to make it flow a bit better (hope that was okay) and here’s the reply:

‘’Thank you for your email.

I believe I addressed point 1 in the final response letter. As the GAP insurance is not a product provided by FCA Automotive Services the dealer is not acting as an agent for us during the selling of the product. Therefore if you remain dissatisfied with the sale of the product or the cover provided by the product you will need to raise this with the selling dealer or insurance provider.

In response to point 2, you are correct that we are asking you to settle a separate agreement at the same time as the HP agreement. However you incorrect suggesting that this is unlawful of us. The law governing voluntary termination does not cover separate agreements and therefore the decision to allow a customer to continue paying for this product is a business decision. As a business we have opted to request that the customer settle the amount due at the time of voluntary terminating. This is detailed in the letter that was issued to you on the 19th September 2018.

With regards to the credit profile update, we do not report the damages to the credit reference agencies (CRA's) however the £219.44 that is outstanding for the GAP insurance is a contractual amount that is now overdue. This amount is normally reported. At the time of terminating the contract, the CRA update's are overridden to allow our customers 14 days to pay the balance. After this time the balance is reportable. In your case, we ahve not removed the over-ride in light of your dispute so the balance has not yet been reported.

As a final offer we can set up an arrangement to repay the contractual amount outstanding over an agreed period and we will continue to over ride the credit profile update for the duration of the agreement. If the agreement is broken the balance outstanding will be updated to the CRA's as would normally be the case. If an agreement is not made or the balance cleared within the next 14 days, we will report the outstanding amount to the CRA's.
Please let me know how you wish to proceed.


With regards to the Subject Access Request, this will be issued to you in the post tomorrow.’’

[R0b]

Hello sorry I have been busy today, have you sent your email yet?

[kezyvette]

R0b I am going to reply to the FCA e-mail today and explain to them that I accept the removal of the fees for mileage and 'damage' but do not accept the continued request for the money for the GAP element for the reasons outlined above. I am also going to explain to them that I will be passing this new information to the FOS who are in the process of dealing with the matter.
I will also reiterate that I do want to continue with the subject access request.

The draft that I have written is as follows (I hope it looks okay?)

Dear ,

Thank you for responding to my complaint dated 2/1/2019 at last.

Please take this as confirmation that I accept the removal of the fees for 'mileage' and 'damage'. I do not accept that you are still reqesting payment for the 'GAP element' of the sum. My reasons for this were quite clearly outlined in my complaint letter and were not acknowledged in your response to myself. For your reference, I outline these again below:

1) The sales advisor who sold me the GAP insurance did so on behalf of you, FCA, and it was only as a result of his misrepresentation that I took out the policy. He explained the GAP as covering the difference between what is left to pay on the finance agreement and the value of the car in the event of a 'total loss' or 'write off' at any point during the policy, not what was actually the case, that it was only a 1 year policy. I never would have agreed to the policy at such a great price for only a year's worth of cover.

2) I requested to terminate the HP element of the agreement. You, FCA, have chosen to unilaterally terminate the GAP contract unlawfully so you are in breach of of contract.


As I said I was going to, I have already reported this matter to the FOS and I will also be providing them with full information of these new developments.

I would also like to take this time to remind you that guidelines for reporting arrears and defaults (drafted in consultation with the ICO) state that you cannot report defaults on a credit file if they are made up solely of fees and charges as is the case with this matter. If you do apply a default as you say you will then you will be in breach of the Data Protection Act and GDPR.

Finally, I do wish to continue with the subject access request and would like everything that you hold for me under my maiden name ( ) and my married name ( ) both digitally and on paper sent to my home address.

Regards



Thanks!

[kezyvette]

If the sales advisor mis-sold you then FCA are liable, because the advisor was acting on their behalf to sell the product (which was subsequently paid by FCA I presume?). However, if you have no proof then it's going to be difficult but it wouldn't make sense for you to agree only 1 year GAP when your HP contract is for longer than that. The whole purpose is to ensure the insurance covers you for the period of time whilst the car is in your possession and I've not known insurance to be part-covered.

I can't remember but did you make the point that you only cancelled the HP element and not the GAP so they have unlawfully terminated that contract and therefore in breach of contract? It seems like they have not answered that at all.

GAP fees are solely made up of charges, separate to the HP but since they terminated the agreement they can't have their cake and eat it.

In my letter to FCA I explained that the sales adviser mis-sold the insurance. I believe in a previous e-mail FCA also said that they paid the insurance cost. I don't have proof as I also explained to them, I was never given terms and conditions that I should have been.

I did make the point of only cancelling the HP element and that they have unilaterally chosen to terminate (unlawfully) the other contract. They have ignored this, you are correct.

What would be your suggested response to their e-mail and letter today?

Kind regards and many thanks again!!!

[R0b]

FCA have removed the mileage/damage charges so I am just left with the amount as a result of the GAP insurance. They are claiming that I should take this complaint up with the insurance company however if I was mis-sold the insurance by the sales advisor in the show room surely the complaint still lies with FCA as the sales advisor acted on their behalf?

If the sales advisor mis-sold you then FCA are liable, because the advisor was acting on their behalf to sell the product (which was subsequently paid by FCA I presume?). However, if you have no proof then it's going to be difficult but it wouldn't make sense for you to agree only 1 year GAP when your HP contract is for longer than that. The whole purpose is to ensure the insurance covers you for the period of time whilst the car is in your possession and I've not known insurance to be part-covered.

I can't remember but did you make the point that you only cancelled the HP element and not the GAP so they have unlawfully terminated that contract and therefore in breach of contract? It seems like they have not answered that at all.

GAP fees are solely made up of charges, separate to the HP but since they terminated the agreement they can't have their cake and eat it.

[kezyvette]

Well I think your options are laid out for you.

The FOS is looking at excess mileage charges and reviewing their decisions but I am not aware of a decision from them yet, so it is worth arguing that point and raising it with them.

Guidelines for reporting arrears and defaults (drafted in consultation with the ICO) say that you can't report defaults on a credit file if they are made up solely of fees or charges. If FCA apply a default as they say they will, they will be in breach of the Data Protection Act / GDPR.

So, pay up and have it over and done with, you can complain to the FOS and see what result they give you or if FCA do apply a default notice then you can take the matter to court, or raise it with the FOS first and then go to court if the decision is not in your favour.

There is already a county case decision in favour of the consumer when Mercedes tried to sue for excess mileage. Short answer is that they failed on all accounts.

The FOS is looking at the whole case so I will be submitting all of the e-mails and complaints to them (the way this has all been dealt with, the mileage/damage charges and the GAP issue).

FCA have removed the mileage/damage charges so I am just left with the amount as a result of the GAP insurance. They are claiming that I should take this complaint up with the insurance company however if I was mis-sold the insurance by the sales advisor in the show room surely the complaint still lies with FCA as the sales advisor acted on their behalf?

If I don't pay as the matter is now being dealt with by the FOS and FCA apply a charge due to the GAP would this count as one made up solely of 'fees and charges'?


Also, should I reply to the e-mail today saying that I have forwarded this to the FOS and they are looking into it and that I would still like to go ahead with the subject access request?

King regards and lots of thanks!!!!!!

[R0b]

Well I think your options are laid out for you.

The FOS is looking at excess mileage charges and reviewing their decisions but I am not aware of a decision from them yet, so it is worth arguing that point and raising it with them.

Guidelines for reporting arrears and defaults (drafted in consultation with the ICO) say that you can't report defaults on a credit file if they are made up solely of fees or charges. If FCA apply a default as they say they will, they will be in breach of the Data Protection Act / GDPR.

So, pay up and have it over and done with, you can complain to the FOS and see what result they give you or if FCA do apply a default notice then you can take the matter to court, or raise it with the FOS first and then go to court if the decision is not in your favour.

There is already a county case decision in favour of the consumer when Mercedes tried to sue for excess mileage. Short answer is that they failed on all accounts.

[kezyvette]

Hello

Thanks for the update. I guess this is one of those situations where you may need to decide whether you continue to make your complaint to the Financial Ombudsman or simply wait it out and see. Strictly speaking, FCA have not reported back with their final decision as to your complaint and in doing so, you could say that they are in breach of their obligations under the Conduct Rules.

If they aren't keen on getting back to you, it may be well that they are deciding to drop the case, but only FCA would know this. I suppose one way of finding out is to submit a subject access request to FCA and get copies of all of your account including any notes recorded. That should give you an idea of what stage they are at.

Its up to you what you want to do, but as it stands and if it were me, I might be inclined to sit it out and see what happens, you might not want to poke the bear.

Hi R0b

Please can I ask your advice. FCA did not ever get back to me regarding the complaint and I felt, as you suggested, that while I was hearing nothing I should wait.

On the 15/4/2019 I receieved another letter from FCA, same as before requesting payment. I forwarded my e-mail from 2/1/2019 again and explained that I had filed a formal compaint with themselves 14 weeks and 5 days previously and had not had a response within the 8 weeks. At this time I also submitted a subject access request. I heard nothing back to this e-mail.
On 3/5/2019 I had a phone call regarding debt - it was very informal, asking if I had any accounts that were in debt such as store cards, credit cards, online shopping accounts etc. When I gave them no information and asked outright who had instructed that they call they admitted to it being FCA. I terminated the call as I had no way of recording what was being said.
I then resent the e-mail and advised that I do not appreciate phone calls from debt agencies when they have an outstanding formal complaint to address. On this date I submitted a complaint to the financial services ombudsman which they have addressed and said that they are looking into.
On Friday I received another letter requesting immediate payment.
Today I have recieved an e-mail from FCA with a letter addressing the complaint as follows:

The e-mail said:
"Please find attached the final response to your complaint with FCA Automotive Services.

I am aware that we have a subject access request awaiting completion for you. Please confirm if you would still like this fulfilled in light of the resolution offered."

The letter said: "I write further to your complaint raised with us. I’m sorry to learn of your dissatisfaction and I would like to thank you for bringing the matter to my attention. Your complaint You are unhappy with the charges applied to your account for damages and excess mileage following your decision to voluntarily terminate the vehicle and end your contract early. Investigation You terminated your contract in October 2018 and emailed us in November advising that you were unhappy with the charges being levied against you for damages and excess mileage. A response was sent to you on the 5 th December confirming our stance regarding the outstanding balance and you responded to this on the 2 nd January. Please accept my apologies that your complaint was not logged and responded to earlier. Unfortunately the letter was not forwarded to the correct team to review at the time.

In response to your comments in the letter, if you wish to challenge the level of cover provided by the GAP insurance you will need to do so with the insurance provider. Ultimately, you agreed to the cover and signed the finance agreement accepting that it has been added to the finance contract. If you subsequently choose to cancel or challenge it, you would need to pay any refund received from the GAP insurance provider onto the contract to settle the amount due. If you VT and settle this amount with us, you can keep any refund that you may receive if your complaint with the dealer/insurance provider is upheld and they opt to refund its cost. As we are not the provider of the product, nor is the dealer acting as our agent for its sale, we cannot investigate this area of your complaint any further. As Alvin has advised, this is a service that we cannot recover and therefore you are required to pay the balance outstanding. With regards to the charges for damages, the law governing voluntary termination allows us to charge these, and as such they would remain due.

Regarding the excess mileage, it could be argued that the mileage didn’t impact the value of the vehicle at auction however I can see that Alvin has already removed £180.39 from the balance and this, whilst not referred to specifically, would have included the excess mileage charge as this is always the first charge to be reduced/removed. RCL9 Outcome Whilst Alvin has explained why we are entitled to charge the balance owed for damages and detailed the escalation process should you remain dissatisfied, in light of the subsequent sale of the car and delay in responding to your complaint, I will waive the remaining damage charge of £370.70. Please be aware that the amount owed for the GAP insurance is a contractual amount that will not be waived.

Whilst it remains outstanding, we will be reporting it as a default amount to the credit reference agencies. Please make arrangements to settle this amount as soon as possible. Your complaint against FCA Automotive Services UK Ltd will now be closed. Under the Dispute Resolution guidelines set out by the Financial Conduct Authority we have to treat this as a formal complaint and as such this is our final response in this matter.

You may wish 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 letter. 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. For more information and for contact details for the Ombudsman service you can visit their website at http://www.financial-ombudsman.org.uk or you may wish to read the enclosed guide “Your Complaint and the Ombudsman”. Yours sincerely,"

I just don't know what to do now.

Thank you for all your help so far.