Voluntary Termination

[DJMEE]

Re: Voluntary Termination

[QUOTEI would not agree to pay for anything which was there when I bought the vehicle. You did not cause the damage, why should you pay for it?[/QUOTE]
Hi Guys
so BMW Finance picked the car up with German like efficiency(just days after receiving the VT form). A chap came and inspected the vehicleand came back with his electrical device and said the only fault he found wasthe alloys and he would have to report this back to BMW as “significant damage”because the scratches is over 25mm. I stated that I would not sign to say I wasliable/caused this damage, which he was very nice about and stated that thiswas nothing to do with liability, more so the marks are present, and that he asthe collection agent hasn’t caused thedamage. 9the damage is present so I can deny that)
so the inevitable phone call has been received by BMWstating they want £220 for loss of value due to the damage to the alloys
I explained the damage was already there when I bought itwhich was reflected in the price at the time, and further outlined that the caris 9 years old having had 6 owners in that time. it is in immaculate conditionthroughout (apart from the alloys) to which BMW have agreed.
So they have asked me now to prove that the damage was therewhen I bought it!! Really!! Is it not for them to prove it wasn’t??
How do I know take this forward?? as there is absolutely noway I am paying out £220 for something I haven’t done, not a chance!!
cheers

[labman]

Re: Voluntary Termination

I don't suppose the claim to have had an AA/RAC inspection on the car at the time of purchase? This may have mentioned the wheels.

If you are unable to prove anything, I'd be inclined to reverse the burden of proof - there is a legal way of doing this which escapes me. I know a member who would know, so can try to get hold of them to see if it could be used in this situation, or another member may know. Otherwise, I'd be inclined to write and say can they prove they were not there?

See what Peter says - he is the real guru here.

[DJMEE]

Re: Voluntary Termination

i don't recollect an inspection - i certainly didn't request one as i was buying from BMW and they had confirmed they had done their own checks etc. i do remember trying to barter with the salesman bacause of the damage to the alloys, but this was done verbally......

i am going to write to them today, and in the most polite way tell them where to stick it!!! but would be good if i could back my arguemant by reversing the burden of proof..........surely its not for the consumer to start taking pictures of their new car just incase they want to VT later down the line!!!


any back up phrases would be greatly appreciated guys!!

[Guest]

Re: Voluntary Termination

Hi

All you can do really is stick to your guns, they will have to sue if they want the money so the burden of proof will be on them. Of course in civil litigation this is not totally telling as claims are decided on the balance of probabilities, but it does shift it in their direction.

At the end of the day i would suggest it would be their word against yours, they are unlikely in my opinion to litigate under those circumstances.

It may be that you have some snaps taken of the car, whilst on holiday, or whatever that clearly show that the damage was there, it may be worth mentioning the possibility in your correspondence.

Peter

[gixergirl777]

Re: Voluntary Termination

Hi - I wonder if I could ask for some more advice please!
I sent my letter to the Funding Corporation and they called me back saying that I am not entitled to use Volountary Termination as the agreement I signed is what's known as a "Bill of Sale" agreement which means VT is not possible. Does this mean anything to anyone?

I'm just looking at the agreement and it does mention "Bill of Sale".... worried now :S

They said I still had the option for them to repossess the car but then I would be liable for the outstanding amount...

Can anyone offer any advice here?

Thank you

Terri

[miliitant]

Re: Voluntary Termination

all that the bill of sale means is that they use it as a security for the vehicle
it is used along side the credit agreement but does not replace it

what is the agreement you have

hire purchase,fixed sum loan, conditional sale

they are talking bovine excrament as usual

[Guest]

Re: Voluntary Termination

Hi
A bill of sale is where finance is raised on goods owned by the debtor.

This is the sort of things used in "Log book loans".

You rake your car to them and effectively transfer ownership, in exchange for cash, you then must repay the cash in order to recover the bill of sale.

I don't really see what this would have to do with a car purchase.

Does the agreement have the sections regarding one third and one half payment itemeised on it. Is the agreement titled, ie higher purchase agreement or conditional sale.

Peter

[labman]

Re: Voluntary Termination

I think this is bad news. A BOS is effectively outdated Victorian legislation which, as Peter points out, is the legal basis for Log Book Loans.

I believe it will stop any VT being made unless the early settlement box is ticked. The following may be of interest:

http://www.bis.gov.uk/assets/biscore...%20lending.pdf

[miliitant]

Re: Voluntary Termination

i will prob get slapped down for this but hear goes

buying a vehicle on credit you will need a credit agreement. that agreement will be regulated by the cca 1974 unless you are getting a merc for example which will not be regulated.

the hire purchase agreement for example is the apex of the contract that governs all things.

as stated, the creditor can tie a noose on the agreement by way of a bill of sale.
that piece of legislation circumvents part of the cca such as reposession as the vehicle ownership has been secured by the creditor.

but the agreement itself must have all the perscribed terms etc, in this case the termination rights if on HP.

all the Bill of sale means is the debtor cannot be released from his liability without consent from the creditor until the credit agreement has been satisfied

as stated

a bill of sale runs along side a credit agreement, not replace it

that is all

what we have to remember unlike log book loans is that ACF for instance is supplying the credit agreement and security by a BOS

log book loans are seperate to this sinario

look at it this way, you cant get credit on a car when their is finance outstanding, its unlawfull unless the vehicle is free from HP ETC

thats how log book loans run

to confirm though we need to see the agreement

[Guest]

Re: Voluntary Termination

HI
NOt at all M1

I seem to remember a thread on here and on CAG about this by postbagg, i wonder if someone could find it for me , i have tried.

As far as i can see a bill of sale cannot be made on property that is not owned, the car would not be the debtors property until the last payment.

I wish i could remember more about this, my old brain I am afraid , i will look it up and get back.

Peter

[labman]

Re: Voluntary Termination

Taken from Department for Innovation and Skills:

Consumer Credit Act
12. Loans made in conjunction with a Bill of Sale share features with hire purchase. However, under the Consumer Credit Act, hire purchase offers two key protections over a Bill of Sale loan – ‘voluntary termination’1011 and ‘protected goods’.
13. Voluntary termination allows a consumer to stop making repayments and hand back the goods to the credit provider. The consumer could still be liable for some reasonable excess charges under voluntary termination, but has the opportunity to ‘cut their losses’. Financing using Bills of Sale offers no such safeguard and a consumer who might wish to exit from a deal part way through would have no mechanism to do so, without being liable for the whole amount of the loan.
14. Once items are deemed ‘protected goods’, a consumer would own the item being financed through a hire purchase agreement. This protection does not exist under a Bills of Sale finance agreement as the goods remain the property of the lender who can repossess them, without notice, as soon as the consumer is deemed to be in default.
15. It has been suggested that Bills of Sale have been revived by some traders in the motor industry as an alternative to hire purchase to finance the sale of cars to the riskier, non-standard market, but with none of the protections afforded by the Hire Purchase Regulations.
16. Under a Bill of Sale agreement, the consumer does not own the car. Instead, the lender or car financier retains the right to recover the borrower’s car until the total amount has been paid. Interest charges are also significantly higher than those offered under other forms of conditional sale and in the event of default by the borrower; the enforcement methods are potentially more robust.

[Guest]

Re: Voluntary Termination

HI

Yes i remember reading this, now you mention it, but wasn't there a test case or something, this is by no means common practice so I think there must be. I will keep looking in the mean time it would be good to see the agreement

Peter

[labman]

Re: Voluntary Termination

Peter,

I can't find a test case.... yet! I have found this - is it the one you were thinking of?

http://www.consumeractiongroup.co.uk...on-ACF-MY-HELL!!!!!

[gixergirl777]

Re: Voluntary Termination

Thank you all for your comments.
I've been trying to look to see what sort of agreement this is but, indeed it is was set up with ACF Car Finance. I had poor credit and needed a vehicle... i've typed out the text of my credit agreement and posted below... any help you can give on this wis very much appreciated...

Credit Agreement Regulated by the Consumer Credit Act 1974

1. Details of the Creditor (‘we/us’)

The Funding Corporation,[2] Limited, if International House, Kingsfield Court, Chester Business Park, Chester, CH4 9RF

2. Details of the customer (you)
XXXXXXXXXXX

1. Key Financial Information

Credit Sale
Amount of Credit £5,795.00
Total Amount Payable £10,633.56
APR 49.9%
Total
Total Amount of Credit £5,795.00
Total Amount Payable (A) £10,633.56
APR 49.9%
Instalment Value (B) £277.46

The Total Amount Payable (A) less any Advance Payment is payable by one instalment of £250.00 1 month (s) after the date of this Agreement followed by 35 monthly instalments equal to the instalment value (B) the first payable 2 months after the date of this Agreement followed by a final instalment of £472.46 payable one month after the last of the previous instalments. The Arrangement Free is payable with (and is included in) the first instalment. The Credit Facility Free is payable with (and is included in) the last instalment.
The period of the agreement is 37 months.

4. Other Financial Information
Description of goods
Make: Subaru
Model: Impreza
Registration Mark: PE04XXX
VIN/CRIS: XXXXXXXXXXXXXXX
Date First Registered: 05.03.2004
Engine: 1994

Credit Sale Insurance Total
Cash Price: £5995.00 £0.00 £5995.00
Less: Advance Payment £200.00 £0.00 £200.00
Finance Charges £4193.56 £0.00 £4193.56
Arrangement Fee £250.00 £0.00 £250.00
Credit Facility Fee £195.00 £0.00 £195.00
Total Charge for Credit £4638.56 £0.00 £4638.56
The Fixed Rate of Interest 23.47% %
Per Annum

Interest is calculated and charged at the commencement of the Agreement. Each instalment included a proportion of the interest charge. Part repayments will be applied firstly to any arrears, then divided equally between each of the balances outstanding in respect of the credit sale, the payment protection insurance and the motor warranty inurance, and applied accordingly, and then to any fees.

5. Key Information
SECURITY: All sums payable under this agreement with be secured against SUBARU IMPREZA by the way of a Bill of Sale (“The Security”)
ADDITIONAL CHARGE(S) – Reminder/Collection Letter - £30, Unpaid items £40.00, Telephone Collection Costs - £20.00, Tracing Costs - £60.00, Repossession Fee – from £200.00, reschedule fee (if we agree to reschedule the agreement) - £50.00, Arrangement Fee (if we agree to a short term arrangement on the agreement) - £50.00 (£100.00 if a second short term arrangement is required within 12 months) and Home Visit - £80.00. We may require you to pay us any fees that we pay to any Litigation or Collection Agency in connection with recovery of monies due on your account. We may increase the charges we make if our costs increase but we will give you 14 days notice before we apply any such increase. Our reasonable costs will attract interest at the prevailing rate on a daily basis – see clause 2.5 of the Terms. You may incur other charges under this agreement, see clause 2.6 of the Terms.
This agreement is not cancellable under the Consumer Credit Act 1974; the Timeshare Act 1992 or the Financial Services (Distance Marketing) Regulations 2004.
Early Settlement:- should you wish to settle your account early, the following settlement figures would apply providing all payments had been made on time. These examples take no account of any variation which may occur under the agreement and the amounts are accordingly only illustrative:
Based on a loan of £100
¼ Term expired £91.38
½ Term expired £72.60
¾ Term expired £47.15
Missing payments – Missing payments could have severe consequences and make obtaining credit more difficult.

Important – read this carefully to find about your rights
The Consumer Credit Act 1974 lays down certain requirements for your protection which should have been complied with when this agreement was made. If they were not, we cannot enforce this agreement without getting a court order.
The Act also gives you a number of rights:

• You can settle this agreement at any time by giving notice in writing and paying off the amount you owe under the agreement, which may be reduced by a rebate. Examples indicating the amount you have to pay appear in the agreement.
• In you received unsatisfactory goods or services paid for under this agreement, you may have a right to sue the supplier, us or both
• In the contract us not fulfilled, perhaps because the supplier has gone out of business, you may still be able to sue us.

Signatures:
This is a credit agreement regulated by the consumer credit act 1974. Sign it only if you want to be legally bound by its terms…..

[labman]

Re: Voluntary Termination

Sorry Gixergirl, but I'm at the limit of my knowledge here. It looks very like an HP agreement to me. I have found reference to the bit about not being able to cancel, but there is a difference between cancellation and termination.

My gut instinct is they would be on dodgy ground. The security is always, ultimately, going to be the car. However, I know the CPR's set out formalities re Bills of Sale in litigation. It may be one the courts have to decide.

Sorry I can't help further. Hopefully Peter or Militant will have more knowledge.

Good luck!