BMWFS VT Process (Aug '16)

[DrSteve]

Re: BMWFS VT Process (Aug '16)

Hi. I'm reading tis thread with interest as I'm planning to VT my BMW at the start of the new year to tie in with the delivery of my new car. I have gone through the VT process before and had no problems. Reading around I'm a little concerned that BMWFS may be a bit more difficult. My PCP agreement is the same as the one above with the conflicting termination clauses but thankfully I'm well below my agreed mileage (perhaps I should invoice BMWFS for being under!! :tinysmile_twink_t2: )
The car is generally in good shape for a 3 year old family car. There are a few stone chips and some alloy wheel damage but it's nothing too serious. It's interesting to see that BMW have updated their website with a series of videos on what damage they will allow and also a price list of what they will charge. It seems crazy that a company can just decide to impose these terms that were never agreed to in the original contract. When the time comes I will be using one of the template letters rather than signing their form and won't be sending them the V5 in advance. I'll keep an eye on this thread in the meantime.

[R0b]

Re: BMWFS VT Process (Aug '16)

Hi DrSteve, BMW do appear to take an aggressive stance and I think that they rely on people either coughing up the money or not doing anything about the default marker they may place on their credit file therefore using it to their advantage. The fact is that if the matter did end up in court, the law is very much in favour of the consumer.

As for your point on the excess mileage, there is an argument to say that the excess mileage clause could be deemed an unfair contract term. As you have rightly pointed out, they seem to be happy to charge excess mileage on the basis that it affects the value of the car but isn't willing to pay out if the mileage is under and the car's value therefore increases - another argument for the court to consider

[Rennot]

Re: BMWFS VT Process (Aug '16)

Hi firstly thanks for this, I am going through the exact same process with the same company! I have just received the excess mileage invoice. I've put this together please can someone have a read and let me know what I should change if anything.. I've put it together using bits of what I've read on this site I'm a bit worried tbh so any advice would be greatly appreciated!!

Dear Sir/Madam,

Re: Voluntary Termination

Agreement Number: xxxxxxx
Vehicle Registration: xxxxx

I am writing further to your letter dated 10/11/2016 which was sent to me via email on 11/11/2016.

Please note that liability for the invoice relating to the alleged excess mileage is denied.

According to section 100(1) of the Consumer Credit Act, liability is restricted to one half of the total price payable. The CCA defines ‘total price’ as “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”.

Excess mileage is a contractual term of the agreement and therefore cannot be included as an amount which is owed. This position is further clarified under section 173 of the Act in that any contractual term which is inconsistent with any rights under the CCA and imposes additional liability, whether direct or indirect, shall be void and unenforceable.

You did not invoice me for any excess mileage prior to my voluntary termination, therefore the balance was NOT accrued immediately before termination.

I must point out also that your contract was very ambiguous regarding voluntary termination. This as you may know goes against the party that drafted the contract if it goes to court because two sections conflict with each other ("Termination" and "Termination: your rights"). The wording under "Termination: your rights" was as follows: "If you have already paid at least this amount plus any overdue instalments and have taken reasonable care of the goods, you will not have to pay any more." I had paid more than the amount noted, had no overdue instalments and took very good care of the vehicle.

So, not only am I protected against this and further invoices by my rights under the CCA but I am also protected by the ambiguity of your contract.
I believe you are creating a false misrepresentation as to the law to obtain monies which you are not entitled to.

In any event, such sums you are alleging to be owed may only be recovered by a court order only and should you wish to pursue this matter in court, your application will definitely be strongly defended.

I must add that I no longer have a fixed abode and I have moved country. This means I require all correspondence to be done over email as I am no longer linked to my previous addresses and do not have a telephone number.

Please confirm via xxxx@hotmail.com that this matter is now closed.

Yours faithfully,

L

[R0b]

Re: BMWFS VT Process (Aug '16)

Hello,

It seems fine, just some suggested amendments below in red which makes it flow a bit better - feel free to add any part in if you wish.

[QUOTE]You did not invoice me for any excess mileage prior to my voluntary termination, therefore the balance was NOT accrued immediately before termination. Equally, in order for an amount to have accrued, there must be knowledge of the exact amount accrued. As you do do not know this amount until after the agreement has terminated and the vehicle is returned to you, the amount could not have accrued immediately before termination.

In any event and not withstanding the above, termination of the agreement was made in accordance with the terms of the agreement. In particular, I have relied on the following clause (at page X):

"Termination: Your Rights
If you have already paid at least this amount plus any overdue instalments and have taken reasonable care of the goods, you will not have to pay any more."

You will note that I have complied with the requirements under that clause and accordingly, have nothing further to pay. Therefore you have no right to reclaim any excess mileage however in doing so, I believe your actions amount to a fraudulent misrepresentation in an attempt to obtain monies which you are not entitled to.

[Rennot]

Re: BMWFS VT Process (Aug '16)

Thanks [MENTION=71570]R0b[/MENTION] that does flow a lot better. I've just sent the reply so fingers crossed. However, I'm expecting the same reply as the one further up this thread! Let's see how far they take it but it'd be a bit pointless of them to try and recover something from someone that no longer lives in the uk, has no possessions (apart from clothes and an old phone) and doesn't have a fixed address anywhere in the world at the moment! :') I'd rather pay £800 to fight it than pay £800 to them I've already give them too many thousands of pounds over the past few years HA!

[R0b]

Re: BMWFS VT Process (Aug '16)

Thanks @R0b that does flow a lot better. I've just sent the reply so fingers crossed. However, I'm expecting the same reply as the one further up this thread! Let's see how far they take it but it'd be a bit pointless of them to try and recover something from someone that no longer lives in the uk, has no possessions (apart from clothes and an old phone) and doesn't have a fixed address anywhere in the world at the moment! :') I'd rather pay £800 to fight it than pay £800 to them I've already give them too many thousands of pounds over the past few years HA!

Hello, if you no longer live in the country how is the car going to be collected?

It seems that BMW is trigger happy with the application of defaults for non payment so you might want to check your credit file now and again, that could have an impact at some point. You may also want to stress to them that as you have no current fixed abode, then any correspondence they send to you must be sent by email, otherwise it is not deemed to have been received. This is just in case they may bring a court claim (unlikely) but they can't say they weren't aware of your current whereabouts.

The question of course is if they do want to apply a default on your credit file, are you willing to fight it or defend it.

[Rennot]

Re: BMWFS VT Process (Aug '16)

It's already been collected. I left it with my friends parents and they arranged a day off work for the finance company to pick the car up and they kindly sent my V5 slip off on my behalf too.
I mentioned in my email that email was the only way to contact me. But they're taking their time replying to me (probably so it goes beyond the timescale I'm meant to pay by?). I would definitely fight it even if I'm no longer in the country.

It's a pain but if the CCA covers me if I have a change in circumstance and can no longer afford the car then why should the company force me to pay more payments when I have already paid thousands for a car I don't even own. I'd have been ok if I still worked and lived in the uk but 3 years ago when I bought the car I didn't anticipate leaving the country

How to I check my credit file?

[R0b]

Re: BMWFS VT Process (Aug '16)

I agree but of course finance companies don't think like that, they are a business out to make money like any other.

You can check your credit file for free at www.noddle.co.uk

[Rennot]

Re: BMWFS VT Process (Aug '16)

Thanks [MENTION=71570]R0b[/MENTION] I appreciate your help!!

[xs2man]

Re: BMWFS VT Process (Aug '16)

R0b (and anyone following this thread),

So, I have been very lax about updating here, but I thought I should maybe attempt to keep it up to date, at least to some degree.

So, BMWFS have passed my case onto a collections agency. Just as I was complaining to the Ombudsman. The Ombudsman sided with BMWFS stating that despite the contradiction in the contract, the excess mileage charge was in the original contract, and as such, they are upholding BMWFS's position. I am disappointed, but not really surprised by this.

I have heard nothing from BMWFS or the collections agency since.

However, I did check my credit file at noddle, and it was just updated today. It is not good. While everything else is all up to date, and looking healthy (enough), BMWFS have put a marker on my file which now shows a payment up to 3 months late (the excess mileage charge). It does also show as settled however, but it did last month too, but now there is a new month put on. This has had a rather large impact on my score, and where I was before Good to Excellent, I am now rated very poor to poor (I was rated as fair last month). This is somewhat worrying as my mortgage is due for a change in June / July, and I really need a decent rate there.

So what are my options here? What is the first thing I should be doing?

[R0b]

Re: BMWFS VT Process (Aug '16)

The way to have it rectified would be going through the courts, to have it removed and/or a claim for breach of data protection. A letter before action would be the starting point on this.

Is BMW claiming that the excess mileage is a breach of the contract or that the additional mileage put the car in an unreasonable condition.

[xs2man]

Re: BMWFS VT Process (Aug '16)

They have claimed it put the car in an unreasonable condition. Despite the inspection proving otherwise.

So is there a template for this letter before action? Or would I be better seeking legal advice here?

[R0b]

Re: BMWFS VT Process (Aug '16)

I fail to understand how BMW can claim that the car was returned in an unreasonable condition because you went over the mileage. The whole purpose of using a car is to drive it and in doing so, the mechanical parts over time (and dependent on how many miles you have driven) will be worn down at some stage and ultimately that is wear and tear. That in itself cannot warrant the car being in an unreasonable condition. Their claim is just dressed up as saying, you went over the mileage limited, you have breached the contract and now you owe money.

If they do insist on it being a 'mechanical' issue, then they would have needed to instruct an independent expert to explain that, which of course they wouldn't have and the car presumably is now sold so they don't really have any leg to stand on. Someone alleging that the excess mileage meant that the car was not returned in a reasonable condition would not stand as evidence in court. Their fallback would therefore be that it is actually a breach of contract, but of course the CCA doesn't allow BMW to recover damages for breach of the agreement when someone gives notice to VT.

You may wish to seek legal advice on this but as it is a small claims issue then you won't be able to recover your fees. Alternatively if you want to go it alone, I am happy to assist where possible.

Be prepared for a fight either way.

[xs2man]

Re: BMWFS VT Process (Aug '16)

Ok,

So it has been a while. I noticed they have the marker against my credit file, and it's stating that the payment is now upto 6 months late.

I am just about to draft them a letter, basically giving them 14 days to remove all unpaid markers from my file, or else I will be forced to take them to the small claims court. I'm not too worried about damages at the moment, although with such a poor credit score now, if that seriously restricts my options come remortgage time, I shall be claiming damages then.

[xs2man]

Re: BMWFS VT Process (Aug '16)

So, I see someone else on her is going through a similar thing, albeit with substantially less excess mileage it appears. None the less, the advice and letters will be similar. As a result, I have just put this letter together. Any help on the wording would be much appreciated...

Dear Sir/Madam

Letter Before Action: Breach of Principle 4 of the Data Protection Act 1998 relating to a Hire Purchase Agreement

Agreement No:
Vehicle Registration :

Back in August 2016, I Voluntary Terminated my BMW. I returned the car as required to do so, and it was inspected upon collection, and found to be in good condition, such that there were no further charges indicated at the time of collection, which I considered to be the end of the agreement, and considered the matter closed.

I recently looked up Noddle to check my credit file. It appears that BMWFS has put a marker against my file stating that an element of the Voluntary Termination was not paid. BMWFS is in breach of the Data Protection Act and the current red marker against my name should not be on file. This is unlawful for the following reasons;

·The Excess Mileage charges do not form monthly instalments nor the total amount payable under the agreement. As the alleged debt did not relate to the credit provided under the agreement, I have not missed any of the credit repayments and so you have no right to apply a default marker.

·My liability was limited to 50% of the total amount payable under the contract as well as any outstanding arrears, therefore claims for excess mileage is specifically excluded by way of the Consumer Credit Act 1974.

·Under the terms of the agreement it states that provided I had paid 50% of the total agreement value and taken reasonable care of the goods I do not owe anything else. A figure that was paid in full.

Section 189 of the Consumer Credit Act states
“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”

Meaning that Excess mileage charges would fall within the compensation / damages category, and the Consumer Credit Act excludes such charges from being recovered.

As resolution to this end, I want this marker permanently removed from my credit file in relation to this agreement within 14 days and, should this end up in the small claims court, £500 compensation as a result of the breach of the Data Protection Act 1998 and the distress caused as a result.

If BMWFS fail to comply, then I will have no choice but to issue legal proceedings in the small claims court without further notice.


Regards