Voluntary Termination Charges.

[R0b]

Re: Voluntary Termination Charges.

Were you sent the full amounts of the GAP Insurance and Warranty or just the amount you paid in the first 14 days? unless you were given cheques for the full amount I would say that you might be owed some money, but difficult to say without seeing the documents and terms and conditions. However, it may all be tied up in one monthly price as part of the credit given to you, and if thats the case then I would also argue that you don;t actually need to pay it.

Why? because it is not separate to the finance of the vehicle and has been added to the total credit which you have been paying monthly as you say and you are only required to pay 50% of the total amount payable of under the agreement. If they wanted to recover that then there should have been a separate agreement for GAP and Warranty rather than incorporated into the HP agreement.

Well that's my view anyway, and quite sneaky of them to do so, so if that rings true then I would be disputing the GAP and Warranty also

DId you cash the cheques i presume?

[Rimax]

Re: Voluntary Termination Charges.

Yes the Gap and the Warranty were tied in to each monthly payment. When I cancelled both they sent the cheques and I did cash them. When I cancelled both I was not issued with another Contract regarding the cancellation. So should I be questioning that also but as i was under the impression that as I had received the refund of both I would have to pay this back also.

[Rimax]

Re: Voluntary Termination Charges.

Hello ROb,
Just to let you know that I still have not had a reply from Shoosmiths regarding the email I sent last Tuesday. I thought I would just let you know. As soon as I have a response from them I will let you know.

[R0b]

Re: Voluntary Termination Charges.

I guess the response you have sent appears to have stopped them in their tracks. They may be awaiting a response from the lender which is why you have not heard anything back. You could of course chase this up or just wait and see whether or not they get back to you. As it seems the lender appears to have lifted the electronic signature and applied that to the document of costs, I would be surprised if proceedings are issued against you but it is still possible if they insist on it, all at additional expense to the lender.

[Rimax]

Re: Voluntary Termination Charges.

Hello ROb,
My previous email was premature and I have received a response. Basically in a nut shell, well the email is 7 paragraphs long, nothing has changed.
They state that the onus is on me to show the damage before I bought the car and the car was not returned in a reasonable condition.
Regarding the signature on the PDA they have skirted that question. Reading the email it's the same or similar answers as before, its so frustrating.

[Rimax]

Re: Voluntary Termination Charges.

Hi,
Could I ask, where do I go from here. I have read the email 3 times and I am so confused on what to do next. Everything you wrote in the email they have just dismissed. Anything you could advise me with would be amazing. Thank you.

[R0b]

Re: Voluntary Termination Charges.

Would you mind posting what they have said in hose 7 paragraphs? And then I can also reply about next steps

[Rimax]

Re: Voluntary Termination Charges.

Hello,

Here is the response from them.
Thank you.

Thank you for your email, the content has been noted.

I would like to take this opportunity to confirm once again thatthe vehicle was returned to my client in an unreasonable condition and theVehicle Inspection Report clearly evidences the damages that were incurred tothe vehicle whilst it was in your possession.

In view of the damages incurred to the vehicle, which are outsideof my clients fair wear and tear guidelines, it is considered that you did notreturn the vehicle to my client in a reasonable condition.

By signing the agreement you indicated that you had read and fullyunderstood my clients Terms and Conditions, and a part of these conditions alsoreads that you had inspected the vehicle and confirmed that it was free fromfault or defect and in good condition. In view of this, if you are claimingthat any damages in the vehicle inspection report were on the vehicle beforeyou purchased it, then the onus lies with you to prove this. My client is underno obligation to view the vehicle before providing the finance or to prove thatthe damage has been caused by you.

My client is not a member of the BVRLA, however, ManheimInspection Services are a member. My client employs Manheim to complete allrepairs and determine if the damages are inside or outside of the Fair Wear andTear Guidelines. The BVRLA are a trading body for companies engaged in therental and leasing of cars and commercial vehicles. This includes ConsumerCredit Agreements for personal use.

As mentioned above, the Vehicle Inspection Report is a valid andconcise piece of evidence that documents that the damages to the vehicle areoutside of my clients Fair Wear and Tear Guidelines and in view of this, I amsatisfied that my client has provided evidence that the vehicle was notreturned in a reasonable condition.

The signature obtained from you at the point of collection andinspection is for the Vehicle Inspection Report, which details the costs.

My client does not intend to remove any charges but has, as agesture of goodwill and in a bid to resolve this matter amicably, offered you areduced settlement in the sum of £890.00 which would need to be paid in onelump sum payment within 30 days from acceptance.

If you are not prepared to accept my clients offer, then I willhave no other alternative other than to refer to my client for their furtherinstructions in this matter.

I look forward to receiving your response within the following 7days.

[R0b]

Re: Voluntary Termination Charges.

What are your views on their comment around the signature of the inspection report and it detailing the costs?

Does the terms and conditions actually state you agree the vehicle is free from defects?

[Rimax]

Re: Voluntary Termination Charges.

The only document that has my signature, again the electronic signature, is the vehicle inspection report from Manheim, which quotes in the same box as my signature "By signing this document, you agree to the damage set out within this inspection report only and not to any subsequent costs that may be applied by your finance provider and you confirm that you have removed all your personal possessions and evidence of personal data from the vehicle. The copy that I have of this was printed after I had signed the PDA.
The only other document copy that I have is from GMAC themselves when I first applied for VT. In this document it states the following criteria must be met and one of these are "the vehicle must be returned to us free from any damage other than fair wear and tear.
There are no documents with terms and conditions on it only the two quoted.

This quote "By signing the agreement you indicated that you had read and fullyunderstood my clients Terms and Conditions, and a part of these conditions alsoreads that you had inspected the vehicle and confirmed that it was free fromfault or defect and in good condition" I do not have a copy of terms and conditions from Manheim the only one I have is from GMAC so I am a little confused by this quote.

[R0b]

Re: Voluntary Termination Charges.

The problem that you have is that you have signed the PDA to say you agree to the damages. So I see GMAC's point of view in that it doesn't really matter what the costs are, you agreed the damage. I'm sure you'll remember next time if you ever hand back a vehicle not to sign anything which refers to a condition report, its more hassle than its worth. That being said, if the PDA states that you agree to the damage and not the costs, then you could argue that there was no stipulation that costs would follow, but merely acknowledged the damage. So I guess you could still argue that they have lifted the signature and applied it to the costs document.

From that email, Shoosmiths are arguing that "the report clearly evidences the damages that were incurred to the vehicle whilst it was in your possession". Unfortunately that is a statement they cannot back up, they cannot prove the fact that the damage to the vehicle was sustained whilst you were using the vehicle but that they were there on collection. Again, goes back to the point that because they did not conduct an inspection prior to you taking the vehicle if you argue the damage was already there, they cannot prove that it was caused by you specifically.

There will be no Ts & Cs for Manheim they are not the owner of the vehicle and were not who you contracted with for the finance of the vehicle so don't worry about that. GMAC is the lender you entered into the agreement with and Manheim so Shoosmiths argument that they use Manheim who are a member is completely irrelevant. They are a third party and are not privy to the contract so that argument falls flat. Equally, if there is no reference to the BVRLA guidelines in the agreement you could also argue that by using/referring to them it is outside the scope as they were not referred to in the contract. Additionally, Shoosmiths seem to have shot themselves in the foot by agreeing that the guidelines re for the intended purpose of renting and leasing of commercial vehicles, including vehicles on finance. The car is for private use, it is not a commercial one and it is not leased either, so that argument can be rebutted too. The standard of the guidelines is much higher than that of the CCA 1974 and so by charging for the full cost of the repairs puts the vehicle in a better condition than just reasonable. The claim for damages should be based on some loss as a result of the damage but not for full loss, doesn't matter anyway as the charges are extremely high.

the vehicle must be returned to us free from any damage other than fair wear and tear

Possibly an argument that this clause could be construe as a unfair contract term and/or penalty and/or is void under s.173 of the CCA 1974. The wording of that clause indicates that the vehicle should be returned in a better condition than reasonable so that is something they cannot rely upon and is therefore void.



As regards to the next steps, my view is the following:

I would imagine that GMAC has a fixed cost contract with Shoosmiths for the collection of debt up to the point of issuing proceedings. Anything beyond this I would think would come at additional costs per hour or a further agreed fixed sum and this is where it will get expensive for GMAC.

It is a small claims issue, so legal fees are not recoverable with exception to around £100 as it is limited to this amount (unless you accept a part 36 you could be liable for all of their legal fees, so do not accept a part 36 offer). So, if GMAC were to instruct Shoosmiths to issue proceedings then I would guess the work involved for preparing, drafting and issuing the claim will probably be around £400-£600+ worth of solicitor costs.

They will then have to decide whether to instruct a barrister or Shoosmiths to act on their behalf in court, otherwise it would be GMAC and someone who probably doesn't have any legal experience. A barrister is likely to be junior so costs for something like this could be in the region of around £500-£1200 give or take a little either side. If Shoosmiths were to act I would imagine cost would be around the same possibly a couple hundred pounds less, although they may not have anyone who is experienced in consumer credit enough to act and may advise a barrister would be better.

Lets say this does go to court, you argue that the Vehicle Asset Protection cannot be claimed because it is wrapped up in the total amount payable and no separate contract/direct debit/provision in the agreement was made to state that the VAP is independent of the total amount payable. This would then bring the claim for damages down to circa £600, you then make further arguments on this and the judge agrees with you in full or partially and writes down some of the damages claimed best case scenario up to £200 for example. Note that claimants are usually expected to claim around 70% of the amount they are claiming for cases of these types.

So taking the above into account, best case for GMAC is they win but their costs for solicitors fees are higher than they are claiming for and so they are going to make a loss or a huge loss depending if the judge writes down some of the amount claimed. Worst case is that they lose altogether and they then owe the solicitors and/or barrister fees which puts them further out of pocket.

All in all, it would not be commercially viable for GMAC to pursue this in court as they would be making a loss whether they were successful or not.

That's my sort of rough view on this, Shoosmiths will need to go back to GMAC and take further instructions from them and they will then have to decide whether or not to proceed. Litigation is an expensive cost and sometimes that cost outweighs everything else.

[Rimax]

Re: Voluntary Termination Charges.

Hi, thank you so much for the response. I feel as though its going to be one heck of a struggle regarding this. I have been on the BVRLA regarding guidelines and found a few bits and pieces. I am also going to get in touch with Gmac as I have been back through my paperwork from them as they are the lender and I'm going to check that I actually sent a document back called The Check list which at point eight of the list it states "we will send you a copy of the vehicle inspection report and you will be liable to pay for any repair costs identified as outside of "fair wear and tear" during the inspection. This is the document from what I can see is Gmac's terms and conditions. Also in Gmac's documents for returning your vehicle they have a section regarding fair wear and tear, as written by them, Bodywork, the vehicle should be sound, well maintained and free from panel damage or disfigurement. Small areas of chipping are acceptable as is light scratches up to 25mm in length (relative to vehicles age). Paintwork, as written by Gmac, some light stone chipping, and very minor dents up to 10mm are acceptable, as is careless opening of doors. If chips or scratches have exposed primer or bare metal, some form of repair will be required. Minor scuffing to bumpers, up to 25mm is acceptable. If Gmac are with not BVRLA will any of the above stand? And as you say I am dealing with Gmac not Manheim so in reality I follow Gmac's terms not Manhiem or have I got that all wrong.
I am to contact Gmac tomorrow to see what I can find as I need to really know if I did sign Gmac's terms and conditions.

[R0b]

Re: Voluntary Termination Charges.

whether you signed their terms and conditions I don't think matters right now as through your conduct of taking the vehicle and making payments each month would amount to agreeing to the terms even if you never signed anything.

As I've said before BVRLA guidelines are used for commercial purposes of leasing and renting and not private consumer guidelines and therefore the standard of those guidelines would be higher than the reasonable condition standard as stipulated in Consumer Credit Act. The question you have to ask yourself, are GMAC using the vehicle for a commercial purpose? The answer is no, they have sold it via auction and I would argue it is difficult for them to apply he BVRLA standards, especially that they are not a member.

If you can post up the terms and conditions I can give you a better idea but ultimately, next time you take out finance you might wish to think twice about signing anything!

[Rimax]

Re: Voluntary Termination Charges.

Sorry it has taken so long to achieve posting the documents, not something I'm very good at. I have included one of the documents but I am unsure if I have uploaded it correctly. If this one is visible then I shall do the rest as there is 4 more. Thank you.