Voluntary Termination Excess Mileage Charges

[Brian69]

I terminated a PCP agreement 2 years ago and ended up in a major written argument over excess mileage - and was being chased for £1850 in relation to this charge. I eventually got referred to the FOS, who sided with the finance company, despite my continued assertions that the charge was contradictory to the CCA. I offered the £1850 on the condition (without prejudice) that the agreement could not be reported as defaulted. However, the payment was accepted AND was still reported as a delinquent account. I have 2 questions, if anyone can help.

1. Is there anything I can do to get the delinquency removed?
2. How did the FOS side with the finance company (in my case it was FCA Automotive) when I believed the excess charge was not enforceable in line with the CCA?

I would be grateful for any assistance!! Thanks.

[R0b]

Re: Voluntary Termination Excess Mileage Charges

Hi Brian,

I am assuming from your post, you are talking about voluntary termination? The FCA may side with the finance company because the person dealing with your case may not be legally trained and/or knowledgeable on what lenders can and cannot do in the event of a VT. They are there to look at the facts and if you cannot point them in the right directions of the CCA then they will only see what it says in the terms of the agreement.

Out of curiosity, why did you offer the money if you are not obliged to accept the FOS decision? You could have simply put your case to court and let the judge interpret the CCA.

Anyway, not to dwell on the past, I think you have grounds to have the delinquency removed which may entail going to the ICO in the first instance and if that fails, possibly to court for breach of data protection. You could claim damages for an amount which you feel is adequate, but the damages you claim will reflect the amount of money you will have to pay to issue the claim and the hearing fee.

[Brian69]

Re: Voluntary Termination Excess Mileage Charges

Hi Rob,

Thanks for the reply. Yes, it was a voluntary termination. The reason I offered the money was that after arguing for so long, and then "losing" the FOS judgement, I got a letter from a debt collection agency stating the bailiffs were coming!! I just thought I had fought long and hard enough and was facing a losing battle. I decided to offer the money as a "conditional settlement" just to put an end to it. I am so annoyed that the payment was accepted but the delinquency was still reported - as this has seriously affected my credit file.

Is going to the ICO a straight forward process? Also, why is there a potential breach of data protection?

Thanks.

[R0b]

Re: Voluntary Termination Excess Mileage Charges

Well for future reference, for situations like this (with exceptions to council, HMRC etc.) they would need to get a judgment against you by going to court first. Anything before court is an alleged debt that is owed, only until a judge agrees with them will the debt be recognised.

First steps will be to write to FCA Automotive, give them a sufficient amount of time to respond. Usually 14 days but as this is probably something they will need to investigate I'd give them 21 days, up to you though.

Failing that, contact the ICO to report them for inaccurate reporting and to remove it. You will need to point out that they have no right to report a delinquency because the debt was not owed and not enforceable as the agreement had terminated and did not form part loan monthly amount but separate to the monthly payments and so cannot be reported as delinquent.

Principle 4 of the Data Protection Act requires that a data controller is to keep accurate and up to date records.


If you need help drafting something let me know.

[Brian69]

Re: Voluntary Termination Excess Mileage Charges

Hi Rob,

Thanks again for your reply. I will certainly do that next!!

One final question, if you don't mind. Would I have any "case" for getting my money back .... as they have not acted in accordance with the offer the money was accompanied by?

Thanks for all of your assistance.

[R0b]

Re: Voluntary Termination Excess Mileage Charges

Difficult to say, because you in effect offered to pay them for the debt, and therefore could be said that you acknowledged the debt was owed. It is always very difficult to recover payments once they have been made.

You could attempt in your letter to FCA Automotive recover the amount but it is likely they will say no. You will then probably have to go through court proceedings to recover it and if you bring a claim for inaccurate reporting you could attempt to claim that sum back as damages but (a) you will need to pay the require fees and (b) it will be up to the judge to decide how much compensation is awarded, you may get all of it or you may get little to none. You should be entitled to the cost of your fees at least if you are successful, but in this case if FCA Automotive are being unreasonable and provide no good reason why they put a delinquency on there, the judge may award you an amount reflecting their unreasonable behaviour.

[Brian69]

Re: Voluntary Termination Excess Mileage Charges

Thanks for your help Rob.

I will let you know how I get on!!

Just as a matter of interest, is an excess mileage clause not enforceable on a VT case like mine? i.e. Should I have stuck to my guns and let them take me to court?

[R0b]

Re: Voluntary Termination Excess Mileage Charges

If you click on the link below in my signature under the FAQs I explain it all there but in essence, no they can't.

[katorik]

Re: Voluntary Termination Excess Mileage Charges

I have similar dealings with FCA Capital - perhaps they are the ones that push it most.
It went to FOS who decided a fair solution would be to split the amount and remove my credit entry. I refused this offer late last year. I was then contacted by solicitors around December last year to chase the debt and I confirmed I was not going to pay it and please take me to court - on the telephone they stated they would have to go back to their client for instructions. I heard nothing more until I received a letter from FCA Capital last week stating they had sold the debt to to a debt collection agency and my debt was no longer theirs. There was also a copy of a letter from the new debt company requesting that I contact them to arrange payment.

At this stage I am ignoring it - any suggestions on what route this is likely to take now?

[R0b]

Re: Voluntary Termination Excess Mileage Charges

Hi Katorik,

Did you VT or did you see the agreement through to the end?

If you VT the agreement then they have no right to collect the excess mileage charges as your liability is limited but if you completed the agreement then they would have a right to pursue the excess charges.

Excess mileage charges where someone VT's an agreement is not a recognised debt and any markers in the credit report would amount to incorrect reporting.

The FOS appear to be hit and miss with their decisions but that could also be down to error by the customer if they don't know the relevant sections of law to use.

Perhaps you are better off starting your own thread so that it doesn't get lost in Brian's if he comes back to post.

[Brian69]

Re: Voluntary Termination Excess Mileage Charges

Hi Rob,

Sorry, I couldn't offer any help to Katorik.

Regarding my situation, I wrote to FCA requesting the money back (that I paid for the excess mileage) but have today sent the debt to the Courts for recovery, as they did not reply to my request (at all).

I have also written to the ICO to try and get the incorrect reporting (by FCA) reversed.

I will keep this thread updated with my progress!!

Cheers.

[R0b]

Re: Voluntary Termination Excess Mileage Charges

No worries Brian, when you say to the courts for recovery? Have you initiated a claim against them? You could also ask the court to remove the incorrect reporting as the ICO may not do anything

[Brian69]

Re: Voluntary Termination Excess Mileage Charges

Hi Rob,

Yes, I have started formal Court proceedings. Although I have written to the ICO regarding the removal of the incorrect delinquency, I have also included this issue in the Court proceedings. Fingers crossed!!

[R0b]

Re: Voluntary Termination Excess Mileage Charges

Interesting, well good luck! If you need any help in terms of drafting the witness statement or anything else, happy to help

[Brian69]

Re: Voluntary Termination Excess Mileage Charges

Thanks Rob, that's great. Cheers.