Taking BMW to court - Paid excess mileage after VT.

[Malt_Vinegar]

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

You need to post up a copy of your original contract , and those letters mentioned before - a photo is usually clear enough if you take it from directly above and it's in focus.

No problem, will get it up asap. I believe they sent a copy in the letter, referencing various points.

[Amethyst]

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

Okay good. If you are going to take court action you need to make sure you have a case because there is still a risk of costs in small claims if the claim is deemed abuse/vexatious etc.

[CLL1]

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,

If you mean to rely on s.69 County Courts Act 1984, then it is simple interest, not compound, though you refer to "common law jurisdiction", rather than statute(??):

"(1)... in proceedings (whenever instituted) before the ... Court for the recovery of a debt or damages there may be included in any sum for which judgment is given simple interest, at such rate as the court thinks fit or as rules of court may provide, on all or any part of the debt or damages in respect of which judgment is given, or payment is made before judgment, for all or any part of the period between the date when the cause of action arose and— (a) in the case of any sum paid before judgment, the date of the payment; and (b) in the case of the sum for which judgment is given, the date of the judgment."

[R0b]

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

If you mean to rely on s.69 County Courts Act 1984, then it is simple interest, not compound, though you refer to "common law jurisdiction", rather than statute(??):

"(1)... in proceedings (whenever instituted) before the ... Court for the recovery of a debt or damages there may be included in any sum for which judgment is given simple interest, at such rate as the court thinks fit or as rules of court may provide, on all or any part of the debt or damages in respect of which judgment is given, or payment is made before judgment, for all or any part of the period between the date when the cause of action arose and— (a) in the case of any sum paid before judgment, the date of the payment; and (b) in the case of the sum for which judgment is given, the date of the judgment."

The letters I post up here are of course example responses, they are not word perfect. Whilst the statutory interest is simple interest, the common law position is that compound interest can be claimed and the fact that there is statute law which allows for interest, that does not overrule the common law position, there's been some recent case law development on compoud interest and claiming that instead of simple interest, and there's more case law which goes back a few more years. As I refer to common law jurisdiction, meaning that they have jurisdiction under common law to award compound interest.

@Malt_Vinegar,

As Amethyst points out, CPUT does apply to all businesses who fit the definition of "trader" which is very wide so they would be caught under this. OFT is of course not around but the relevant authority under CPUT is in fact Trading Standards and not the FCA, although the FCA could take action for breach of the FCA Rules.

So their grounds for defence against your claim is that they are claiming it to be frivilous and no reasonable grounds to claim. Definitely sounds like scary tactics to me! If they want to claim their costs back in small claims thye would have to argue unreasonable conduct/behaviour and/or frivilous claim but as suggested before, you have a very reasonable claim and money was paid under duress/threats of marks against your credit file which is of course a reaosnable ground to argue.

Don't suppose you happened to get a name of this person who you spoke to, sounds like they don't have a clue.

[CLL1]

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

The letters I post up here are of course example responses, they are not word perfect. Whilst the statutory interest is simple interest, the common law position is that compound interest can be claimed and the fact that there is statute law which allows for interest, that does not overrule the common law position, there's been some recent case law development on compoud interest and claiming that instead of simple interest, and there's more case law which goes back a few more years. As I refer to common law jurisdiction, meaning that they have jurisdiction under common law to award compound interest.

@Malt_Vinegar,

As Amethyst points out, CPUT does apply to all businesses who fit the definition of "trader" which is very wide so they would be caught under this. OFT is of course not around but the relevant authority under CPUT is in fact Trading Standards and not the FCA, although the FCA could take action for breach of the FCA Rules.

So their grounds for defence against your claim is that they are claiming it to be frivilous and no reasonable grounds to claim. Definitely sounds like scary tactics to me! If they want to claim their costs back in small claims thye would have to argue unreasonable conduct/behaviour and/or frivilous claim but as suggested before, you have a very reasonable claim and money was paid under duress/threats of marks against your credit file which is of course a reaosnable ground to argue.

Don't suppose you happened to get a name of this person who you spoke to, sounds like they don't have a clue.

Right, but you've still not actually said what would entitle a person to claim "compound interest" which one would expect in a letter of claim. Whilst I appreciate it might not be word perfect, claiming interest is a straightforward matter and is prescribed in statute, not common law.

[R0b]

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

Restitution or as part of an indemnity, duress, mistake, the list could go on. There's no need to to list the full reasons in the letter of claim as to why you are seeking compound interest but merely that you wish to claim it. Yes there is interest in the form of CCA 1984 but that is not the sole option for interest. The common law positon allows for compound interest and stil continues to allow for compound interest, not in every case but in certain circumstances.

The discretion is then down to the judge as to whether compound interest can be claimed or not just like you can claim contractual interest instead of statutory interest.

[Malt_Vinegar]

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

http://maltopia.co.uk/letter1.jpg
http://maltopia.co.uk/letter2.jpg

Letter here!! Arrived this morning

[R0b]

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

Hi Malt,

They don't of course appear to have looked at other sections of the CCA.

Happy to draft a response or look at one if you fancy having a go yourself

[Malt_Vinegar]

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

Not really sure where to start on a response. Presuming I need to reference part 100 of the CCA, not 99?

Is there a template I can use?

I have this bit:

100 Liability of debtor on termination of hire-purchase etc. agreement.


(1) Where a regulated hire-purchase or regulated conditional sale agreement is terminated under section 99 the debtor shall be liable, unless the agreement provides for a smaller payment, or does not provide for any payment, to pay to the creditor the amount (if any) by which one-half of the total price exceeds the aggregate of the sums paid and the sums due in respect of the total price immediately before the termination.


(2)Where under a hire-purchase or conditional sale agreement the creditor is required to carry out any installation and the agreement specifies, as part of the total price, the amount to be paid in respect of the installation (the “installation charge ”) the reference in subsection (1) to one-half of the total price shall be construed as a reference to the aggregate of the installation charge and one-half of the remainder of the total price.


(3)If in any action the court is satisfied that a sum less than the amount specified in subsection (1) would be equal to the loss sustained by the creditor in consequence of the termination of the agreement by the debtor, the court may make an order for the payment of that sum in lieu of the amount specified in subsection (1).


(4)If the debtor has contravened an obligation to take reasonable care of the goods or land, the amount arrived at under subsection (1) shall be increased by the sum required to recompense the creditor for that contravention, and subsection (2) shall have effect accordingly.


(5)Where the debtor, on the termination of the agreement, wrongfully retains possession of goods to which the agreement relates, then, in any action brought by the creditor to recover possession of the goods from the debtor, the court, unless it is satisfied that having regard to the circumstances it would not be just to do so, shall order the goods to be delivered to the creditor without giving the debtor an option to pay the value of the goods.

[R0b]

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

I don't have a template as this is quite specific but I am happy to drat something as a starting point if you wish.

[Malt_Vinegar]

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

I would very much appreciate it if you could give me something to flesh out. Legalese is not my first language!
The solicitors are asking me to call them to discuss today. I guess they want to throw more legal terms at me verbally and confuse me again..

[R0b]

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

Here you go, something to work on. Haven't looked back through the thread so you will need to change things I have put in brackets if they are not correct.

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

27 June 2016

Dear Sirs,
Your Reference:

I am writing with reference to your letter dated 14 June 2016 concerning my claim against BMW for the recovery of excess mileage charges paid under the hire purchase agreement (the “Agreement”).

In response to your letter, I will deal with each point as it is set out.

As you have quite rightly pointed out, section 100 of the Consumer Credit Act 1974 (“CCA”) specifies that termination under section 99 does not affect liability which has accrued. However, your interpretation of the meaning accrued is wrong. The excess mileage charges fall under a contractual term which is determined after termination and not before. BMW did not invoice or demand the excess mileage sums until after the Agreement and therefore the sums could not have been accrued prior to termination under section 99. The meaning of section 100(2) is that it entitles the creditor to recover any arrears of instalments. This position is further supported in the authoritative textbook, The Law of Consumer Credit and Hire (Philpott et al 2009 at 387-379). Accordingly, BMW were not lawfully entitled to recover £401.31 for charges relating to excess mileage.

Notwithstanding and in addition the above, the clause under the Agreement which allowed BMW to charge excess mileage could not be levied by virtue of section 100 (as liability is restricted to 50% of the ‘total price’) and section 173 of the CCA. The definition of ‘total price’ is set out in section 189 and for ease of reference, the definition is as follows:

“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.”

As you will note, when determining the liability of the debtor, this does not include any sum that is payable as a result of any breach of contract and therefore, the excess mileage charge cannot be recovered. Furthermore, I also refer to you section 173:

“(1) A term contained in a regulated agreement or linked transaction, or in any other agreement relating to an actual or prospective regulated agreement or linked transaction, is void if, and to the extent that, it is inconsistent with a provision for the protection of the debtor or hirer or his relative or any surety contained in this Act or in any regulation made under this Act.

(2) Where a provision specifies the duty or liability of the debtor or hirer or his relative or any surety in certain circumstances, a term is inconsistent with that provision if it purports to impose, directly or indirectly, an additional duty or liability on him in those circumstances.”

Again, you will see that any contractual term which is inconsistent with the provisions of the CCA, and in this case, the limited liability under section 100, is void and unenforceable. Further, the excess mileage term imposes additional liability which is inconsistent with the provisions of section 100 and so BMW had no authority legally, to recover such sums.

BMW and/or its agents acting on behalf of BMW, called on numerous occasions threating to apply a default on my credit report. Due to the worry of my credit report being affected and the possibility of not being able to obtain credit, I therefore made the payment under duress. I have since become aware that BMW has no right to place a default marker on my credit report as the Agreement had already been terminated and the excess mileage charges did not relate to any credit or any monthly instalments under the Agreement. The conduct and behaviour of BMW and its agents in obtaining the sums therefore amounts to aggressive practices under the Consumer Protection from Unfair Trading Regulations 2008 (“CPUT”). In particular, the Regulations prohibit commercial practices of harassment, coercion or undue influence. BMW have exploited its power of position so as to apply pressure on myself in order to pay the sums which were not legally recoverable.

You will also be aware that it is recognised at common law that recovery of monies paid either under duress or by which monies received by the recipient unlawfully can be recovered. Your suggestion that I am estopped from doing so is simply incorrect.

Your threat of seeking costs in defending the claim is wholly unwarranted on the basis that the claim falls under £10,000 and therefore likely to be allocated to the small claims track where limited costs shall apply. As suggest above, my claim provides good grounds of argument in that your Client unlawfully recovered money in which it was not entitled to do so and as such, there is a reasonable prospect of success. If you are therefore suggesting that the claim is somewhat vexatious, I am afraid that I must disagree.

In the circumstances and in the interests of avoiding further costs by both parties, I am prepared to take no further action provided that your Client agrees to pay the sum of £401.31 [including interest] within the next 14 days. Should your Client maintain its position, I will have no other choice but to [continue with proceedings against them / issue proceedings without further notice].

I look forward to hearing from you within 14 days.

[NAME]

[Malt_Vinegar]

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

Awesome, editing this and going to get it sent out this week
Thanks again!

[R0b]

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

Did they call you the other day? any outcome on it?

[Malt_Vinegar]

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

I have tried to call them three times. I think they are screening my calls!

http://www.lesteraldridge.com/our-pe...lloyd-partner/ - This is the person dealing with me.

I just tried to call again, and got through to the reception, and they are emailing her to ask her to get in touch again.