Taking BMW to court - Paid excess mileage after VT.

[Malt_Vinegar]

Hi everyone.

I have paid my excess mileage after a VT with BMW.

I was all set to just ignore the letters, but when I found out it would affect my credit rating, even though it was in dispute, I decided to pay (under duress) and then look to get the money back via the courts. (I will be taking some finance later this year, and did not want it to cause me issues)

The total amount was just over £400 for the excess mileage.

I have requested a breakdown of the payment from BMW, which they have provided, but they do not differentiate between regular payments and excess mileage on the forms.

What do I need to do to best present my case to the court? I am willing to put in a bit of work, and try to create a precedent with the claim, so want to ensure i cover all the bases, and present the strongest argument possible.

Any advice would be greatly appreciated!

[R0b]

Re: Taking BMW to court - Paid excess mileage after VT.

Might require some thought so I may have to reply later tonight as I'm busy this afternoon. In order to comply with the pre action protocols the first step would be best to send them a letter before action so as to give them a reasonable amount of time to consider settling this out of court.

Is the lender actually BMW or is it something like BMW finance? The name of the lender should be in your documents and also letters they have sent you or on the debt collection letters.

As I said in the last post there's no guarantee on this as you have already paid your money albeit under duress as you say. it wouldn't set any precedent as it would be county court level however they may wish to keep this out of the spotlight and give you an offer if you do issue proceedings which you might need to think about.

There will of course be costs of the claim, one amount to issue proceedings and the other is the hearing fee if it cannot be settled. The initial cost is £50 to issue and then the hearing fee will be £55 so a total of £110 and if you are successful in your claim you get this back.

You can see the claim fees here https://www.moneyclaimsuk.co.uk/smal...ourt-fees.aspx

So before we even do anything or consider the merits then you need to decide whether you want to still press ahead.

[Malt_Vinegar]

Re: Taking BMW to court - Paid excess mileage after VT.

So before we even do anything or consider the merits then you need to decide whether you want to still press ahead.

For the amount I am chasing, it would be a £35 upfront fee, +hearing fee i believe.

I am more than willing to put them through the trouble for £90

[R0b]

Re: Taking BMW to court - Paid excess mileage after VT.

So how much are you claiming? For the extra 20 quid is it not worth claiming the full amount?

[Malt_Vinegar]

Re: Taking BMW to court - Paid excess mileage after VT.

So how much are you claiming? For the extra 20 quid is it not worth claiming the full amount?

£401 is the amount i paid for excess.

The money claim website said as below:

Up to £300	£35	£25
£300.01 to £500	£50	£35

So, it would cost me £90 by your earlier sums to try and get £401 back?

Again, i am more than willing to pay £90 to try and take them to court.

[Malt_Vinegar]

Re: Taking BMW to court - Paid excess mileage after VT.

I guess the first step is to inform them, in a letter that I intend to take them to court to recover the excess mileage?

Or should i just set the claim in motion and let them have the 14 days to respond?

The lender was BMW financial services, so i guess my "beef" is with them directly. I actually hand delivered my VT documents to their offices last time (getting a signed receipt, on headed paper), so might do the same again

[R0b]

Re: Taking BMW to court - Paid excess mileage after VT.

I guess the first step is to inform them, in a letter that I intend to take them to court to recover the excess mileage?

Or should i just set the claim in motion and let them have the 14 days to respond?

The lender was BMW financial services, so i guess my "beef" is with them directly. I actually hand delivered my VT documents to their offices last time (getting a signed receipt, on headed paper), so might do the same again

Yes, a letter before action with intention to recover the monies paid. In terms of your cause of action, I am still a bit unsure but certainly misrepresentation could be in there as a strong point as well as restitution. In the meantime you could attempt to conjure a draft letter up on this basis and can take a look from there?

[Malt_Vinegar]

Re: Taking BMW to court - Paid excess mileage after VT.

Letter Draft

• Name and address
• I am looking to re-claim the £xxx.xx paid to BMW financial services on "date". This amount was demanded to cover "excess mileage" which is not enforceable, or liable after a voluntary termination of finance, after 50% has been paid. This payment was paid under duress by myself after receiving a letter from a notice from a debt recovery agent, to ensure my credit file was not affected.
• I would like to get this payment refunded, and the account remain closed, without a non-payment record being placed on my credit file.
• I am not attempting to claim for any other costs, however, this process has taken considerable time, effort, and disruption on my behalf to deal with.
• If you wish to discuss this matter or enter into mediation, I am happy to do so. I have not been given any possibility to discuss this with BMW financial services on any level up to this point, despite making known on a number of occasions that this matter was considered to be "in dispute".
• I would expect a reply within 14 days. Failure to do so will mean I assume you do not wish to go down a non-legal route. Then I will start legal action to recover the amount, and also any associated costs of raising the claim.
• I have previously requested a breakdown of payments, however, the document provided does not differentiate between "normal" balance payments, and "extra" demanded payments (excess mileage demand). Please provide this documentation, with clearly defined payments from the outset of the agreement to the termination. I would also like to ensure the original signed agreement documents are provided to me at this stage.
• I will be using Civil Procedure rules as defined by www.justice.gov.uk as my guidelines for this matter, I hope you will also do the same.

Regards
ME

Any ideas on what else to write/change/add? Thanks

[R0b]

Re: Taking BMW to court - Paid excess mileage after VT.

Letter Draft

• Name and address
• I am looking to re-claim the £xxx.xx paid to BMW financial services on "date". This amount was demanded to cover "excess mileage" which is not enforceable, or liable after a voluntary termination of finance, after 50% has been paid. This payment was paid under duress by myself after receiving a letter from a notice from a debt recovery agent, to ensure my credit file was not affected.
• I would like to get this payment refunded, and the account remain closed, without a non-payment record being placed on my credit file.
• I am not attempting to claim for any other costs, however, this process has taken considerable time, effort, and disruption on my behalf to deal with.
• If you wish to discuss this matter or enter into mediation, I am happy to do so. I have not been given any possibility to discuss this with BMW financial services on any level up to this point, despite making known on a number of occasions that this matter was considered to be "in dispute".
• I would expect a reply within 14 days. Failure to do so will mean I assume you do not wish to go down a non-legal route. Then I will start legal action to recover the amount, and also any associated costs of raising the claim.
• I have previously requested a breakdown of payments, however, the document provided does not differentiate between "normal" balance payments, and "extra" demanded payments (excess mileage demand). Please provide this documentation, with clearly defined payments from the outset of the agreement to the termination. I would also like to ensure the original signed agreement documents are provided to me at this stage.
• I will be using Civil Procedure rules as defined by www.justice.gov.uk as my guidelines for this matter, I hope you will also do the same.

Regards
ME

Any ideas on what else to write/change/add? Thanks

I'll take a look at this tonight and formalise it

[katorik]

Re: Taking BMW to court - Paid excess mileage after VT.

Good luck, I will be interested in the result.

I was contacted by solicitors for FGA Capital pre Christmas who requested payment of the balance as the process had finished with the Ombudsman. I have refused and told them to take me to court and am awaiting a response after they have received their client's instructions.

Personally I cannot see them proceeding but then I do have the issue of how I clear the credit mark if they do nothing - any ideas?

[Malt_Vinegar]

Re: Taking BMW to court - Paid excess mileage after VT.

Thanks! (to both!)

Katorik, that is why I paid before there was a default. I wanted to ensure they did not put a mark on my record.
I checked online, and there is plenty of information about getting a wrong entry corrected, but less about disputed amounts.

I decided by actually paying, I could keep my record un-damaged, and then be able to "go legal" to get it back

[R0b]

Re: Taking BMW to court - Paid excess mileage after VT.

Below is a draft letter, probably needs tweaking a bit but provides the gist of what you are looking to claim. I'm unlikely to be on until Sunday and will take another look at it then.

---------------------------------------------


Dear Sirs,

Letter before action for monies received under the [Conditional Sale OR Hire Purchase Agreement] ("the Agreement")

Agreement number:

I write in relation to the above matter in which BMW Financial Services ("BMW") wrongly received payment of an alleged debt by way of misrepresentation and as a result, have been unjustly enriched.

On or around [DATE] I entered into the Agreement which related to [DETAILS OF THE VEHICLE]. On [DATE] and having paid [£XXXX.XX], I served noticed to BMW of my right to terminate the Agreement in accordance with section 99 of the Consumer Credit Act 1974 ("CCA"). Section 99 of the CCA provides that a debtor's liability is restricted to half the total amount payable under the Agreement. Nonetheless, despite validly terminating the Agreement, BMW continued to send numerous correspondence in an attempt to recover an alleged debt to the sum of [£XXX.XX]. BMW further instructed a debt collection agency with the threat of commencing legal proceedings and that my credit report would adversely affected if payment was not made forthwith. Under duress and compulsion, and the threat of my credit report being affected due to non-payment, I reluctantly paid BMW the sum of [£XXX.XX].

As a result of of BMW 's misrepresentations, I have paid the sum of £[XXX.XX] to BMW and therefore seek repayment of [£XXX.XX].

Furthermore, I am entitled to claim compound interest pursuant to the court's common law jurisdiction on the sum of [£XXX.XX] from [DATE]. I therefore claim interest at a rate of 8% compounded daily. This amounts to [£XX.XX] and continues to be compounded at a daily rate of 8% until judgment or earlier payment.

Please provide within 14 days from the date of this letter the following documents a breakdown of the sums paid to BMW which they allege to have been owed.

Repayment of the sums owed is required no later than 14 days from the date of this letter. If you do not consider this amount to be due, please provide an acknowledgement within 7 days of receipt and a response should be provided no later than 21 days after the date of this letter. In the absence of any full response or acknowledgement, I shall commence legal proceedings against BMW without further notice.

Notwithstanding the above, I reserve all of my rights, including the right to commence legal proceedings, and to seek an order for restitution and/or misrepresentation plus compound interest and costs.

I look forward to hearing from you in due course.


Yours faithfully,

[Malt_Vinegar]

Re: Taking BMW to court - Paid excess mileage after VT.

Amazing!
Thanks for doing that for me.
It looks pretty good to me as it is!

[R0b]

Re: Taking BMW to court - Paid excess mileage after VT.

Slightly amended letter above, can you tell me what date you paid the amount as the interest needs to be calculated. Once I have that, I think this is just about ready to go. As I have said previously, this is not guaranteed that you will be successful as you have already paid them and they may have a defence to rely upon if you do continue to proceed so please bear that in mind.

------------------------------------



Dear Sirs,

Letter before action for monies received under the [Conditional Sale OR Hire Purchase Agreement] (the "Agreement")

Agreement number:

I write in relation to the above matter in which BMW Financial Services ("BMW") wrongly received payment of an alleged debt by way of misrepresentation and the result of which, have caused BMW to have been unjustly enriched.

This letter is sent in accordance with the Practice Direction on Pre-action Conduct (PDPAC) which is contained in the Civil Procedure Rules. Failure to comply with the PDPAC may result in sanctions from the court.

On or around [DATE] I entered into the Agreement which related to [DETAILS OF THE VEHICLE]. On [DATE] and having paid [£XXXX.XX], I served noticed to BMW of my right to terminate the Agreement in accordance with section 99 of the Consumer Credit Act 1974 ("CCA"). Section 99 of the CCA provides that a debtor's liability is restricted to half the total amount payable under the Agreement. Nonetheless, despite validly terminating the Agreement, BMW continued to send numerous correspondence in an attempt to recover an alleged debt to the sum of [£XXX.XX]. BMW further instructed a debt collection agency with the threat of commencing legal proceedings and that my credit report would adversely affected if payment was not made forthwith. Under duress and compulsion, and the threat of my credit report being affected due to non-payment, I reluctantly paid BMW the sum of [£XXX.XX].

BMW have knowingly or at least recklessly misrepresented that it is entitled to claim the alleged debt which is contrary to the law. As a result of such misrepresentations, I have paid the sum of £[XXX.XX] to BMW and therefore seek repayment of [£XXX.XX].

Furthermore, I am entitled to claim compound interest pursuant to the court's common law jurisdiction on the sum of [£XXX.XX] from [DATE]. I therefore claim interest at a rate of 8% compounded daily. This amounts to [£XX.XX] and continues to be compounded at a daily rate of 8% until judgment or earlier payment.

Please provide within 14 days from the date of this letter a breakdown of the sums paid to BMW which they allege to have been owed.

Repayment of the sums owed is required no later than 14 days from the date of this letter. If you do not consider this amount to be due, please provide an acknowledgement within 7 days of receipt and a response should be provided no later than 21 days after the date of this letter. In the absence of any full response or acknowledgement, I shall commence legal proceedings against BMW without further notice.

Notwithstanding the above, I reserve all of my rights, including the right to commence legal proceedings plus compound interest and costs.

I look forward to hearing from you in due course.


Yours faithfully,

[Malt_Vinegar]

Re: Taking BMW to court - Paid excess mileage after VT.

Hi Rob,

Sorry for the delay! I have been dealing with a newborn, new job, and driving my car into a river! So this took a bit of a back-seat. However, I am now populating the information required, and will get this letter off to BMW FS asap!

I really appreciate this support, and hope to at the very least force them to justify why they are not following the VT rules. I will update once the letter is done, and sent off.