Audi Finance Voluntary Termination issues

[remlap1440]

R0b*

Hi, Yeah I tweeked it a little and sent if off.*

Doubt I will hear anthing back anytime soon!!

[remlap1440]

R0b See reply,

Any thoughts? From what I can see they do not mention the Consumer credit Act Section 100? but does try to say we should be liable under the agreement? Nor have they referenced any of the material that you very kindly sent to me?

They also say that VWSF acted fairing in persuading us for outstanding monies when it had already been passed to them!! Is this not against FCA rules? if so how can that be fair?

They also seem to brush over the fact there there were two damage reports, one is an "appraisal", and one is a "full report". This seams odd and as they were done about a week apart with extra millage, I still don't see how we can be responsible for allege damages when the car was not in our care!!

I am going to send a holding letter as they have only given me 6 days to respond, I will need more than that to get my head around this again!!

Ta

[R0b]

I think it's right for you to send a holding letter and say you will need an extra week to digest and formulate a response, so you'll get back to them by X date.

If you want to respond, have a go at drafting something and post it up. It's not surprising with the FOS and damage charges but you can ultimately reject it. I think your best bet would be to accept VW's offer to not pursue the excess mileage but the vehicle damage remain in dispute.

Then provide a response and ask the FOS to assign it to an Ombudsman for a final decision. Don't hold out too much hope though.

Just a quick point, was the car new or used when you first got it and if used, how old?

[pt2537]

Was this hire or hire purchase?

[R0b]

Its hp

[remlap1440]

Hi R0b It was a new car, I will send the holding letter then write something up over the next week and post it up to see what you guys think.

I'm not holding out much hope, but we will see.

pt2537 Hi, it was a PCP agreement. I also picked up on the fact she said a hire agreement. Not sure if it was just a typo or she is getting her cases mixed up.

[remlap1440]

R0b pt2537 This is what I have put together, I have already sent in a holding letter, stating that I needed time to go over it before giving a response.

Any guidance or points you think I should include/take out would me much appreciated

Thanks



Dear $$$$$$$$$,

Firstly thank you for taking the time to investigate Mrs. $$$$$$$$$ s complaint against VWFS.

At this point in time we are willing to accept the offer from VWFS to waive the excess millage charge, however we will still be disputing the outstanding damage charges that you have set out (see below), and the fact that you believe VWFS acted fairly and reasonable in pursuit of this alleged change.

1. Door LHF Left Hand Front Door – Unsatisfactory repair

1. Door LHR Left Hand Rear Door – Unsatisfactory repair

1. Qtr panel RHR Right Hand Rear – Dent

1. Wheel LHF – Scuffed

You have stated that the two separate and very different damage reports can be used, as the first one report was an “appraisal form” while the second was a “full report” However the fact that an appraisal is “an act of assessing something or someone” and “a formal assessment of something or someone” I cannot see how you can disregard the first report so easily. Even if we were to accept the second report, our duty to take care of the vehicle was discharged on the 24th Sept 2018 and at 35591 miles, and as we no longer had possession we are not in a position to state what or where the vehicle taken to over the next 8 days or 255 miles. As such we still maintain that VWFS has no basis to claim any damage charges from Mrs $$$$$$$$$.

I would also like to point out once again that having terminated the agreement in accordance with Section 99(1) of the CCA 1974, Section 100(1) is to act as a backstop in that it serves as a limitation of liability for the benefit of the debtor. It imposes a statutory limit on the amount of liability owed by the debtor to the creditor under a hire-purchase agreement which is defined as one half of the total price payable. “total price” is defined (see Section 189) as, “the 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.” Accordingly,



Furthermore, in a recent County Court case between Mercedes-Benz Financial Services (UK) Limited v Cahalane (Willesden County Court, 26 February 2018) District Judge Ellington (as she was then) held that excess mileage charges were not recoverable. Her reasons included, amongst other things, that the definition of total price excluded the recoverability of these charges, the statement “Termination: Your Rights” was explicitly clear that liability was limited and, in any event, she was bound by the Court of Appeal decision in Julian Hodge Bank v Hall [1997] EWCA Civ 1852, which established that “total price” excludes compensation and damages for breach of the agreement for the purposes of calculating the total price payable.



As such, even if the ombudsman found these charges to be fair and reasonable in their own right,, they would be unrecoverable as the limit on Mrs $$$$$$$$$ liability has already been reached by paying “one half of the total price payable” I would there for ask the ombudsman to dismiss these charges as non-payable.

You have stated that you feel VWFS acted fairly and reasonably and that “a business has the right to seek any outstanding balance from its customers” Normally I would agree to this point, however once I had referred this complaint onto the ombudsman VWFS have continued to pursue me for the alleged debt, contrary to your obligations under the FCA rules, namely the Consumer Credit Sourcebook (CONC). I would refer you to CONC 7.14.1 in which it stats that: -

"A firm must suspend any steps it takes, or its agent takes in the recovery of a debt from a customer where the customer disputes the debt on valid grounds or what may be valid grounds."

VWFS continued pursuit and forwarding of my information to Ardent, was a flagrant breach of CONC 7.14.1 whilst this dispute is currently ongoing and remains under consideration with the Financial Ombudsman. I fail to see any excuse on VWFS part in respect of the matters above and fail to see how you can conclude that their pursuit of this alleged debt to be fair and reasonable. Therefore, Mrs $$$$$$$$$ is still seeking financial compensation for her time, stress and inconvenience in having to deal with these matters.

You have also stated that our complaint was about a “hire agreement” for the “lease of a vehicle” This is not the case. The complaint is about a hire purchase agreement through a Personal Contract Purchase. I am unsure if this was a small typo or if you were under the wrong understandings of the case. I would there for like an ombudsman to rule of the case.



Yours Sincerely







$$$$$$$$$

[R0b]

Will have a look later and let you know.

[R0b]

So here's a couple examples of responses from parts of your reply to the investigator, feel free to use as little or as much. Otherwise it's really up to you how much effort you put in.

I don't think the references to s.99 and s.100 and the case law are relevant here because they relate to excess mileage, not a failure to take care of the car. VWFS have already dropped that claim so I think the focus should be on the damages, unless I've misunderstand your intention here.

Also, not sure what the last paragraph adds to your complaint, a hire purchase is in essence a hire agreement and a personal contract purchase is a variation of a hire purchase agreement. I suggest sticking to the key points

- - - - - - - - - - -

In your initial response, you mentioned that there were two different reports, one being an 'appraisal' and the other a 'full condition report'. However, neither you nor VWFS have explained the difference between the two reports. The appraisal carried out at the time of collection was in accordance with the BVRLA guidelines (the same guidelines that were used in the full condition report). I'm therefore struggling to understand how you can simply disregard the appraisal. What is clear, however, is that the damage recorded on the appraisal is different to the full condition report. As far as I'm concerned, any additional damage recorded on the full condition report could have occurred after the car was collected. Equally, why has the lender instructed the agent collecting the vehicle to carry out an appraisal and record the damage and costs when there was an intention to do a full condition report (whatever the difference may be)? Again, these questions are unexplained by both yourself and VWFS so I can't see how you can say that it is fair and reasonable to arbitrarily discount the appraisal.

- - - - - - - - - - -

You also said in your response that you feel VWFS acted fairly and reasonably and that “a business has the right to seek any outstanding balance from its customers”. I'm really surprised by your response because CONC 7.14.1 (which is a Rule and not Guidance, so compliance is mandatory) states that:

"A firm must suspend any steps it takes, or its agent takes in the recovery of a debt from a customer where the customer disputes the debt on valid grounds or what may be valid grounds."

The pursuit of the alleged debt by VWFS knowing that there is an open complaint with the Financial Ombudsman Service is a flagrant breach of the rules. Are you now suggesting that lenders can ignore the rules that are meant to govern them as part of their licence permissions? It would seem that your acceptance of VWFS chasing an outstanding balance whilst an FOS complaint is under consideration, is condoning a breach of the CONC rules.

[remlap1440]

Thanks R0b Think I will incorporate some of your wording, as it sounds better than mine!!!

[remlap1440]

Decision Letter re.pdf

We won!!!! or VWFS was kind enough to waive the charges!!!

Thanks R0b for all your hard work, I will send you a virtual as I can't exactly buy you one.

Not sure if this should now get moved in the forum or not, but will look next week.

[R0b]

Great news and well done for sticking with it.

I have to admit I am surprised that they contested both the excess mileage and vehicle damage but a win is a win. They seem to be a bit stingy on the compensation awarded, I think given the time it has dragged on and VWFS sticking to their guns only to then suddenly waive the charges, seems to me they should be punished for wasting everyone's time. I reckon £250 would be a more reasonable sum given that this issue has taken over 18 months.

As it is only a provisional decision you could ask for a final decision on the compensation but its up to you on whether you think it is worth doing. Sometimes best to take the win where you can. Once accepted, it is legally binding so you can hold VWFS to account.

[remlap1440]

I'm not to bothered about the amount of compensation, it was more the principle of the thing, and to hold them to account.

Thanks again for all your help.