Excess Mileage Rejection letter from Finance Company

[lvlatty]

Hi,

I was wondering what to do next re a Excess Milege charge after a VT.

They have quoted the text from the actual agreement:

"If you end this agreement early (see Termination: the Maximum Total Mileage will apply pro-rata etc etc....."

Then in response to our mention of the CCA 1974 the have referred me to Section 99 (2) and said "as the mileage was accrued before the termination of the agreement they are within their rights to charge for excess"

Also they have quoted section 100 (4) saying as the vehicle was returned with additional mileage over the contracted pro-rata allowance they consider the vehicle to be out of good condition in line with the agreement.

Over the phone they told us they were not charging for slight scuffs on the wheels as the vehicle was in immaculate condition for its age.

Finally they say under the terms of the complaints procedure this is their final response. If I am dissatisfied I can complain to the ombudsman within the next 6 months.

What should I do next - Im happy to let this go to court providing if I lose I can pay on the day to stop the CCJ hitting my credit file (is this true?). However in the meantime not sure what to do next given they will probably pass onto a debt collector?? (i think??) I would prefer to have this interpreted in court first as I tend to agree that without precedence its all down to interpretation.

The bill is for £700.

Any help would be welcomed.

Cheers

Matt

[R0b]

Re: Excess Mileage Rejection letter from Finance Company

Hi Matt,

Who is the lender here?

The mileage was not accrued before termination because you have not paid for the excess mileage nor were you invoiced it before you decided to terminate. The meaning of s.99 is in the past tense (accrued) meaning that sums already paid under the agreement. You could argue this also means any payments which became due and you have not yet paid before you terminated e.g. missed payments.

You can complain to the FOS if you like or you can wait it out and see if they take it to court. I've yet to see anyone so far be taken to court and lose. If you lose you can pay the debt within 1 month of the judgment before you get a CCJ.

[lvlatty]

Re: Excess Mileage Rejection letter from Finance Company

Hiya,

Alphera is the lender. Going to the FOS seems a bit pointless and a waste of time by the looks of it given it has no legal precedence and tends to favour the lenders.

Would they be able to pass this onto debt collectors - aka bailiffs?

Cheers,

Matt

[R0b]

Re: Excess Mileage Rejection letter from Finance Company

Yes the FOS will be hit and miss depending on who you get but they do not always strictly interpret the law as they generally look at fair and reasonable. They could pass onto debt collectors but they will only be acting on behalf of Alphera. To have bailiffs come round they would have needed to take you to court first.

What exactly did you say to them in your letter to get that response?

[lvlatty]

Re: Excess Mileage Rejection letter from Finance Company

Hi - it was a telephone conversation and pretty much highlighted the points mentioned on the forum here. IE - the CCA act states nothing more to pay at VT hence don't agree you are able to charge for mileage. They haven't mentioned bailiffs - I'm just concerned about having someone knock on my door on behalf of them.

[R0b]

Re: Excess Mileage Rejection letter from Finance Company

They cannot just instruct bailiffs, they would need to go through the court process first. You are best to keep everything in writing, and if you do move then perhaps you might wish to consider letting them know in case they attempt to do something at a later date.

Ultimately the choice is yours whether you want to stick to your guns and fight it all the way or pay up. They might offer you a reduction in the amount they allege you owe at some point, court is not for everyone and some choose to pay up others are quite happy to have their day.

If, and its probably a big if (although never heard of Alphera before) they do press on with court, I'm happy to help if you need me to

[Malt_Vinegar]

Re: Excess Mileage Rejection letter from Finance Company

R0b and other members here have helped me in my case, and I am just about to take BMW to court for similar charges.
I have actually paid mine, under duress (debt collectors letters, and threatening my credit file), and taking them to task for the amount shortly.
Stick to your guns!

[lvlatty]

Re: Excess Mileage Rejection letter from Finance Company

Cheers for the info so far - so a little arguing over the phone so far. Holding our ground however I accessed my credit report and found the debt isn't marked as settled. The amount outstanding on the credit report is for the amount of 700 (ish) which they are attributing to the mileage. I thought the VT would mark the debt as settled? Any thoughts?

[R0b]

Re: Excess Mileage Rejection letter from Finance Company

Cheers for the info so far - so a little arguing over the phone so far. Holding our ground however I accessed my credit report and found the debt isn't marked as settled. The amount outstanding on the credit report is for the amount of 700 (ish) which they are attributing to the mileage. I thought the VT would mark the debt as settled? Any thoughts?

Hello, sorry I haven't got back to you until now. In short, they are in breach of data protection and you can sue for it as it is damaging to your credit report. The agreement should have been marked as settled once 50% of the total amount has been received. You could make a complaint to the ICO but that may take some time, so the only other option would be to bring this to court, and send a letter before action to them.

I did draft one someone in this section if you do a search.

[lvlatty]

Re: Excess Mileage Rejection letter from Finance Company

HI Rob - thanks for this. Really sorry to be a pain but.. I've had a look but can't seem to find it - any pointers?

Cheers,

Matt

[R0b]

Re: Excess Mileage Rejection letter from Finance Company

Matt,

There's a template below, it is based on a collection fee charge which is not enforceable under the CCA - you can adapt it as required. There is some information in brackets that you can include or exclude but is entirely up to you.



Dear Sir / Madam,

LETTER BEFORE ACTION: BREACH OF DATA PROTECTION UNDER A HIRE-PURCHASE AGREEMENT NUMBER [NUMBER] (the “Agreement”)

It has come to my attention that Santander has applied a default on my credit report which is related to the Agreement mentioned above, despite the fact that the Agreement was terminated on [DATE]. As I understand, the default appears to relate to a charge of £70 for a collection fee under the terms of the Agreement. As a result of the default, my credit rating has significantly decreased resulting which is likely to result in complications should I choose to obtain credit in the near future. I should therefore point out that, Santander has no legal authority to place a default on my credit file, and this is because:

1. a default may only be applied in respect of any monthly instalments and the collection fee did not form any part those instalments or the total amount payable which was borrowed under the Agreement; and

2. section 173 of the Consumer Credit Act 1974 (the "CCA") explicitly states that contractual terms which impose additional liability upon a debtor whom has terminated the agreement under section 99 of the Act shall be void and unenforceable.

In the circumstances, Santander has processed information which is wholly inaccurate, in breach of Principle 4 of the Data Protection Act 1998. You will be aware that a breach such as this is actionable in which damages can be sought due to the negative effect of a person’s credit rating, as highlighted in the recent Supreme Court case of Durkin v DSG Retail Ltd.

I therefore require Santander to immediately remove the default from all credit reporting agencies within the next 7 days [and provide an undertaking that it will not impose a default in relation to the collection fee or any other terms which are considered unenforceable under the CCA]. Should you comply within the the required time, no further action will be taken. However, if I do not hear from you by [4pm on XX October 2016], I shall commence proceedings against Santander without further notice. Please note that once proceedings have been issued, it is my intention to seek compensatory damages including interest and any costs incidental to the application.

I look forward to hearing from you in due course.

Yours faithfully,

[NAME]