Voluntary Termination - MBFS

[LegalNewb]

Hi all,

I have recently exercised the right to VT under CCA 1974.
Mercedes have sent out forms to sign, to which I have advised they will not be signed.
I used the standard template to email the request to VT the agreement.
They had not contacted to arrange collection in the initial 14 days that were given to them so I have provided the follow up to advise they will receive a further 14 days to collect else the vehicle will be untaxed, uninsured and left on a public highway.

They have just response to advise on the below;

"You do not have the sign the documents we send to you. You may send us a copy of a hand signed letter that you have written, if you prefer.

However, we do require a dated document with your wet signature as we cannot accept a termination via email. The reason for this is that emails can be intercepted, and as a Voluntary Termination is a significant change to the contract, we require hand signed documentation to reflect your intentions.

I hope you understand our reasoning for requiring a hand signed document to be able to process a Voluntary Termination.

Please note that, as per your contract, your vehicle must remain taxed and insured up until the point of collection as the vehicle remains your responsibilty until that date.

Once we have received a hand-signed document from you, we will be able to arrange a prompt collection."

My question; Should I be required to send a signed letter or is the email I sent sufficient?
Subsequently, should this be sufficient, am I well within my rights to notify the DVLA of the change of registered keeper, park on a public highway, cancel insurance and tax?

Any help on this would be greatly appreciated.

[R0b]

MBFS are trying to frustrate the process. The CCA says you only need to give notice in writing, and email is fine. Yes Vt is asignificant change to the contract and yes emails can be intercepted but the process of VT is very specific and niche - why would a fraudster or scammer want to exercise a VT right when there is no benefit to them, especially if you are using the same email address that they have on their systems.

Equally, they could have contacted you to verify you sent an email exercising your VT right. The law says it only need be put in writing and that is what you have done, so as long as you can verify who you are, there's no need to send a wet signaure.

Of course you can email them back and say you will provide them with a wet signature as verification only on the basis that they accept that the termination date is effective from the date you first sent the email.

Once you terminate, duties and obligations under the contract cease to exist, so its irrelevant what the contract says, you merely become an involuntary bailee which says you have to take reasonable care of the car, not have it taxed and insured for the benefit of MBFS. You've given them sufficient time to take steps but they have not bothered which is their fault, not yours.

You could be reasonable and set out a response as above, seeking written confirmation that they will accept termination at the date of the original notice. Then allow them an extra 14 days, meaning they would have had a total of 28 to make arrangements to collect, otherwise you will follow through with your threat. After that, it's their responsibility.

[LegalNewb]

Hi R0B,

As always, thank you for your help.
I've sent a further note off to them today to advise what you've mentioned.
What should happen in the event that they refuse to accept the VT via email?

[LegalNewb]

Hi R0B,

Just a quick one...
MBFS finally accepted the email notification of VT after some deliberation between their internal teams.
BCA the company who collect the MB vehicles have today carried out an inspection on the vehicle.

I handed them the necessary documents i.e V5C and the two keys that were supplied with the vehicle. He proceeded to state that he needed nothing more from me and I could leave. So I did.

I've just received an email with a condition report showing a damaged alloy @ £85.00 and a scratched rear quarter panel @ £170.00.
It has my name on it but no my signature. It also states 'customer agrees with reported condition, signed.
After speaking with my mother, it appears that she was the one who signed for this. I'll make it clear that at no point was any communication given to either MBFS or BCA that my mother was authorised to sign on my behalf. Her name has not once been mentioned.

Does the fact that she's not authorised nor my signature being on the condition report go against me or could they use this against me later down the line?

Thanks.

[R0b]

Maybe I'm missing a link here. You dropped the car off and handed the keys and documentation over but your mother signed the report?

How did that happen?

[LegalNewb]

Hi R0B,

Just a quick one...
MBFS finally accepted the email notification of VT after some deliberation between their internal teams.
BCA the company who collect the MB vehicles have today carried out an inspection on the vehicle.

I handed them the necessary documents i.e V5C and the two keys that were supplied with the vehicle. He proceeded to state that he needed nothing more from me and I could leave. So I did.

I've just received an email with a condition report showing a damaged alloy @ £85.00 and a scratched rear quarter panel @ £170.00.
It has my name on it but no my signature. It also states 'customer agrees with reported condition, signed.
After speaking with my mother, it appears that she was the one who signed for this. I'll make it clear that at no point was any communication given to either MBFS or BCA that my mother was authorised to sign on my behalf. Her name has not once been mentioned.

Does the fact that she's not authorised nor my signature being on the condition report go against me or could they use this against me later down the line?

Thanks.

Hi Rob,

I returned home from work, dropped the car off as I was using it to commute and gave the v5 and keys to the collection agent. He told me nothing else was needed so I got a lift back to work.
The collection agent then knocked at my door to which my mother was round so she signed the guys iPad that had the report on there.

However, I had not authorised her to do so at any point.
Hope this clears it up?

[R0b]

Yes that makes sense, in that case I think you could safely say that whatever was signed is null and void. You never authorised your mother and the BCA agent did not ask you to sign the report when you returned the car.

I would imagine that MBFS will try to say that your mother acted as an agent of you in signing the report but that might turn on what was actually said at the time it was signed so you might need to question her about it. Equally, the agent should have asked and/or verified that the person signing the report was actually the customer and if he/she didn't then that might add some force to your argument.

Certainly arguable and as the amount is not that great (assuming no excess mileage charges), I wouldn't expect MBFS to talk you to court over it, but you never know. If it did go that far, I think you would be best suited to having your mother provide a written statement as to the conversation at the time.

Suggest you speak to your mother first, find out what was said and then respond to MBFS accordingly and make a point about not having been asked to sign the report at the time of handing over the car so you didn't expect further costs or charges. Secondly, you had no opportunity to inspect the car's damage since it was now in possession of BCA, nor did they offer an opportunity for you to inspect.

[LegalNewb]

Hi Rob,

Thanks for that.
After speaking with her, it appears that all that was said was "this is the report of whats on the car, sign here and one more here". She's going to write it down whilst it's fresh in her memory but I also have a Ring Video Doorbell, which potentially, may of captured the conversation for video evidence.

It seems no clarification was made on who she was especially in terms of who she is to me.

I believe the excess mileage will come later on when the vehicle is returned to Mercedes so the amount is likely to increase.

[R0b]

Obviously there may be an increased risk of MBFS going to court if excess mileage charges are added but they did get spanked last time so it's also a risk to them too.

Maybe it will be best to wait and see if MBFS invoice the excess mileage and deal with it at once, or write to them now and raise the issue of the report.

[LegalNewb]

Hi R0b,

So I awaited their invoice, which was received and as thought, excess mileage was included taking the total to £577.78.
I've used the standard templates to, condition of the vehicle and also excess mileage which are fantastic so thanks for that also.

They've responded to that, coincidentally completely ignoring the fact that I emailed about the damage and only addressed the mileage factor.
They're response is marked below. Could I have some guidance on how to respond to this?




"Further to your recent email received by our offices, whether you are returning your car at the end of your agreement or upon use of the Voluntary Termination (VT) clause, as you have not exercised your right to purchase the car, an excess mileage charge will be raised should your return mileage exceed your total mileage allowance. This obligation is set out within the first page of your agreement, under key information. The provisions of the Consumer Credit Act that cover a customer’s right to VT their agreement do permit us to include any over mileage when determining what is 'not reasonable' upon the cars return. It is stated in your agreement under ‘Excess Distance’; ‘If the vehicle is returned to us (whether at the end of the period hire or an earlier termination), we will calculate the total distance travelled by the vehicle whilst in your possession (the “Total Distance”)’.

Your mileage allowance has therefore been re-calculated on a pro-rata basis in line with the length of time you have had the vehicle in your possession.

I would also like to kindly refer you to S99 (2) Consumer Credit Act 1974 where it states:

‘Termination of an agreement under S (1) does not affect any liability under the agreement which has accrued before the termination.’

As your agreement was subject to a mileage allowance prior to termination and you have exceeded the allowance, the charge has been raised correctly and remains payable.

The conditions of the Consumer Credit Act do permit us to determine what is considered reasonable condition. As excess mileage has a negative effect on the value of the vehicle, this is not considered reasonable and Mercedes-Benz therefore retains the right to charge for this following the voluntary termination of an agreement.
""

Thanks as always.

[R0b]

It is a template response from them but that doesn't change the state of play so it is up to you what you want to do. If I was in your position and I didn't want to pay up, I would be sending a response similar to the below, but you reply however comfortable you feel.

Also I have updated the Voluntary Termination Guide and there is a piece on excess mileage. You may want to have a read of that before sending any response, at least you will be clearer in the understand of the potential arguments used by finance companies.

Click here for VT Guide.

-------------------------------------
Dear Sir or Madam,

Thank you for your email.Â*

In your email, you say that the excess mileage charges accrued before the termination of the agreement took place. However, I would point out that the same argument was used in a recent court case, Mercedes-Benz Financial Services Limited v Cahalane (26 February 2018, Willesden County Court) and was rejected. Â*The judge did not accept that the charges had accrued before termination of the agreement, rather they were accruing but did not crystallise until the point at which the debtor exercised her voluntary termination right. Therefore, the excess mileage charges were not due and payable until such time that those charges were invoiced. The judge went further to say, amongst other things, that Section that section 100(1) of the Consumer Credit Act 1974 limits the debtor's liability to one half of the total price payable. The definition of 'total price' does not include compensation or damages for breach of contract and since the se charges are damages for breaching the agreed mileage, the charges are not recoverable.Â*

Your legal team will no doubt be aware of this case so you may wish to consult them before issuing a a reply. Nevertheless, my position remains unchanged and I do not believe to be liable to pay the excess mileage charges. Of course, it is your entitlement to disagree with me and in which case, I would invite you to issue legal proceedings so that we can both obtain finality on the dispute. In the meantime, please refrain from sending further demands since it is unnecessary and this response makes clear the stance I am taking. Should you ignore my request, I will treat all further correspondence as harassment and reserve the right to take legal action, seeking an injunction and/or compensation.Â*
Â*

[LegalNewb]

Hi Rob,

Thanks for your help on this up to this point.

I've used your response and they've upheld their decision that the charges are applicable for the excess mileage.
Realistically, I don't have to much of a problem with paying the excess mileage, i'd just rather not as a job relocation meant that I would not have met the pro rata'd figure if the agreement went the full length.

RE the damage fees I feel as if they have shot themselves in the foot a little as they have admitted that the party that signed the document was unauthorised to do so. They said the below;

"This report has been agreed and signed by yourself and therefore as you have been made aware of the damage and costs associated with this we would be unable to remove these charges."

I've notified them that the signature is not mine and this can be checked with the signatures in the agreement and if needed I am able to supply proof of identification. The bit that humours me is that they are now trying to say that my mother is an authorised party regardless if I actively authorise her or not.

In one email they said , "Further to your recent email received by our offices, regarding the report being signed by an unauthorised third party as you have chosen to leave the vehicle to be inspected with them they are then signing this on your behalf you would still be liable for these costs.
"
And went on in a further email to say "Further to your recent email received by our offices, regarding the previous email you have stated it was signed by your mother which is an authorised contact.



We have no requested a copy of your agreement to confirm if this is your signature on the report that has been agreed and signed to. As it is your name on the agreement this would be the customers responsibility to ensure they are present for the inspection and collection of the vehicle. As the vehicle was inspected at the inspection location any damage highlighted would have been done whilst the vehicle was in your possession. Therefore you would be liable for these costs"


Am I missing something that states that anybody that knows my name can sign on my behalf or is it an unwritten rule?

Would appreciate your help here.

[Statler]

Surely this brings GDPR into the frame?

They've potentially divulged your personal information to a third party without authorisation.

[LegalNewb]

Hi Statler,

I wouldn't think so as the only piece of personal data on the forms is my address, which the vehicle was collected from.