BMWFS VT Process (Aug '16)

[R0b]

Re: BMWFS VT Process (Aug '16)

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;

I wouldn't say 'red' marker but state a default marker has been placed on your credit report, which has an adverse which has overall reduced your credit score. You need to suggest why it is unlawful, in this case it is a breach of Principle 4 in failing to ensure data is accurate and up to date.

It would also be helpful to point out here what the default amount is showing on Noddle and make sure that charge matches up as the same charge for the excess mileage pence per litre. If it does, you should say something along the lines of, As I understand it, the default amount showing on my credit report relates to excess mileage charges where are claiming that I have gone over by X miles. The charges are calculated at X pence per mile totalling X amount.

When it comes to your reasons, start with your strongest argument and so I would suggest you make reference to the Termination: Your Rights clause and emphasise the bit where it says provided you have done this, you will pay nothing more.

Notwithstanding the above, section 100 of the CCA limits your liability to 50% of the total price payable, then make reference to the definition of 'total price' under s.189. You can then say that the excess mileage charge does not form part of the total price payable and instead is a contractual term for which damages is applicable in the event of a breach - you should state the clause number of it from your agreement.

Following that you should then explain that the excess mileage charges are damages and/or compensation and is therefore excluded for the purposes of calculating the total price and liability under s.100 of the CCA.

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.

Perhaps his could be re-worded something like, In order to resolve this issue, I require BMWFS within 14 days from the date of this letter to:

(1) remove all adverse entries which has been reported to its preferred credit reference agencies and provide written confirmation of the same.
(2) £500 compensation as a result of the data breach, distress and BMWFS wilful refusal to remove the adverse entries.

If I do not hear back from you by [14 days] and you have not complied with the above, I will have no choice but to issue proceedings without further notice. Please note that if proceedings are issued, I will also be seeking aggravated damages of X as well as interest and my application fees.

I look forward to hearing from you in due course.


The above is just a rough example, but you need to be clear and and logical as to why they are in breach. Make sure it goes to the address listed on the agreement and I would expect them to instruct solicitors to respond to you denying any breach and saying they are entitled to record the default. Also, if you do bring a claim I have mentioned aggravated damages, consider how much more (if any) you want to claim. There are two relevant cases where £1,000 has been award for breach of the DPA and £750 where that was done in error and only sat on the account for a few months before being removed.

[xs2man]

Re: BMWFS VT Process (Aug '16)

Ok, so I have edited now to read like this:

Back in August 2016, I Voluntary Terminated my BMW 530d. 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 default marker against my file stating that an element of the Voluntary Termination was not paid. As I understand it, the default amount showing on my credit report relates to excess mileage charges where you are claiming I have gone over by 16538 miles. The charges are calculated at 11.4 pence per mile totalling £1885.33.
This has greatly reduced my credit score. BMWFS are in breach of the Data Protection Act, mainly Principle 4, failing to ensure accurate and up to date data. The current default marker against my name should not be on file. This is unlawful for the following reasons;

First and foremost, as already detailed in a letter I sent to you dated 20/09/2016, I exercised my right to voluntary terminate this agreement based on the original Hire Purchase Agreements clause found on page 2, column 1, section 10, Termination: Your Rights, where it states:

“You have the right to end this agreement. To do so, you should write to the person you make the payments to. They will then be entitled to the return of the goods and to half the total amount payable under this agreement, that is £xx,xxx.xx. 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.”

This clause had been met in full upon collection of the vehicle, and the end of the contract. The goods were proven to have been reasonably taken care of, and the figure of £xx,xxx.xx had been paid in full. The clause states, that with this having been done, “You will not have to pay any more”.

Notwithstanding the above, section 100 of the CCA limits my liability to 50% of the total price payable.

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”

The Excess Mileage charges do not form monthly instalments nor the total amount payable under the agreement. And as such, does not form part of the total price payable, and instead is a contractual term for which damages is applicable in the event of breach. 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.

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

In order to resolve this issue, I require BMWFS within 14 days from the date of this letter to:

(1) remove all adverse entries which has been reported to its preferred credit reference agencies and provide written confirmation of the same.
(2) £500 compensation as a result of the data breach, distress and BMWFS wilful refusal to remove the adverse entries.

If I do not hear back from you by 14-05-2017 and you have not complied with the above, I will have no choice but to issue proceedings without further notice. Please note that if proceedings are issued, I will also be seeking aggravated damages of a further £500 as well as interest and my application fees.

I look forward to hearing from you in due course.

[xs2man]

Re: BMWFS VT Process (Aug '16)

I should probably note also that on my credit report at Noddle, the BMWFS "loan" does have a status of Settled, but apparently has a balance of the £1885, which has been marked as payment up to 6 months late.

[R0b]

Re: BMWFS VT Process (Aug '16)

Well your letter seems to cover the neccessary points, does the £1,885 match up with the excess mileage you went over in the contract at the pence per mile rate or does it cover more than that??

[xs2man]

Re: BMWFS VT Process (Aug '16)

Yes, it does add up. Although I would argue that as I paid in full for the equivalent of 5 extra months payment, I should be entitled to 5 extra months of "contracted mileage" should I end up having to pay at all. That would reduce the amount to £1410, but I guess that's not really how it works anyway.

[R0b]

Re: BMWFS VT Process (Aug '16)

Unfortunately, paying over the 50% doesn't mean you can recover them (CCA says that) but you can argue that having paid the extra months covers any costs though it sis a bit wishy washy nevertheless.

Ping off your letter and see what happens, I imagine they will send it to their solicitors and see what response their is. You can review their response and then decide if you want to pursue it.

[xs2man]

Re: BMWFS VT Process (Aug '16)

Ok. Will do. I'll send it off today. Thanks.

[jicholasnackson]

Re: BMWFS VT Process (Aug '16)

Reading this thread with great interest, looking forward to see a positive resolution for you @xs2man

Having re-read a BMW contract (should be same text apart from numbers) is the 2 clause issue a bit of a red herring. Surely each clause is the contract is separate unless implicitly linked to another within the wording of the specific clause, and clauses when invoked are independent of one another unless linked. Page 1 of the agreement states this for the excess mileage:

Note is only references the Termination clause on page 2, and NOT the Termination: Your Rights clause - I assume it can only reference the Termination clause because to reference the other clause would breach s.173 CCA.

When you VT under s.99 of CCA surely you are only invoking the Termination: Your Rights clause within the contract? Or would this have to be explicitly stated on the initial VT letter you send in?

As you are only invoking the Termination: Your Rights clause, all other clauses not linked become unenforceable at the point you terminate the agreement. So while BMW may argue that "Excess Mileage Charges will accrue immediately prior to termination" this would only apply if you invoke the Termination clause, which is a BMW contractual clause?
The reasonable condition argument to charge the excess mileage makes absolutely no sense as they are using a contractual clause on a terminated agreement to award themselves damages - surely only a judge can award such speculative damages?

Another point of note, from their letter dated 8/9/16, the whole third paragraph seems to actually shoot down BMW's whole position:

The first sentence in the paragraph is covered in the argument above.
The second sentence is where I think BMW have actually missed their own point and undermines their later arguments about unreasonable condition, take two people that out two agreements one at 10k miles and one at 20k miles per annum over 48 months. Note the total amounts payable below, these example taken from BMW own website.

Person 1 does 50k miles and VTs month 35. Person 2 does 50k miles and VTs month 31. They have both fulfilled s.100 of CCA and paid half, but BMW chasing excess mileage from person 1 citing unreasonable condition. How can that be, are they now chasing the same figure from person two given same mileage (it could be argued person 2 has done more "damage" given he did 50k miles in 4 months less than person 1)?
Mileage clearly is not a factor in the total price of the vehicle as total price does not change with increased mileage (you will note it actually goes down due to interest calculations on higher monthlies). BMW seem to be picking and choosing which parts of the CCA they wish to apply!

Surely this example also clearly shows that by the definitions of the CCA, the Excess Mileage Charge is a penalty and not enforceable on a VT as per s.189 and definition of total price. Am I right in thinking this clearly is not a "liability" with regards to s.99(2), as all "liabilities" would from parts of the Total Price?

[R0b]

Re: BMWFS VT Process (Aug '16)

@jicholasnackson

Surely each clause is the contract is separate unless implicitly linked to another within the wording of the specific clause, and clauses when invoked are independent of one another unless linked

You are correct in the way interpretation of a contract would work i.e. each clause acts separately unless cross-referenced with another. You will never ever see 2 termination clauses in a contract (though you might see a clause that says obligations following termination but thats different again) however, in HP-type agreements, lenders will insert an additional clause and expect those who have little or no knowledge of their legal rights to simply accept it because it's written in the contract. Aside from s.173 making any clause void and unenforceable which creates additional liability, you also have the common law principle of contra proferentem and I would argue that it applies in this case. Contra proferentem is a principle whereby if a clause or competing clauses are ambiguous, the court will construe the interpretation against the person drafting the contract, and apply the clause most favourable to the other party.

So while BMW may argue that "Excess Mileage Charges will accrue immediately prior to termination" this would only apply if you invoke the Termination clause, which is a BMW contractual clause?

The only way I can foresee a debtor owing excess mileage is where the debtor returns the car at the end of the agreed term or, if the lender terminates the agreement due to a default, non-payment etc. and then it would be entitled to recover the excess mileage pro-rata, if any. Unfortunately, BMW as well as other lenders are selectively choosing the relevant provisions of the CCA to suit their needs. The provisions must be read in conjunction with one another to properly understand a debtor's position.

Sure, there is no harm in the excess mileage charges being accrued immediately before termination (though I would argue thats' impossible but that's a different story) however s.100 specifically states that "Where a regulated hire-purchase or regulated conditional sale agreement is terminated under section 99 the debtor shall be liable ... the sums due in respect of the total price immediately before the termination." The key phrase is the total price immediately before e.g. the total price excluding any sums for penalties, compensation or damages for breach. The excess mileage clause itself is a liquidated damages clause so would almost certainly fall into the damages for breach but also possibly compensation and/or penalty category. Thus the clause is not enforceable when a debtor terminates under s.99 of the CCA.

The reasonable condition argument to charge the excess mileage makes absolutely no sense as they are using a contractual clause on a terminated agreement to award themselves damages - surely only a judge can award such speculative damages?

It is long established by the courts that if you want to claim damages then you must prove it with evidence. The court will not speculate as to what damages might be owed where the claimant has not offered any evidence support to back up what it is claiming. Take for example a recent High Court case Starbuck v PATsystems (UK) Ltd [2017] EWHC (IPEC) where the judge had said the following:

In the end it seems to me that I am being asked to speculate about things which Patsystems could quite easily have proved by proper evidence, such as an expert report based on actual source code comparisons, and I see no reason why I should speculate. Hence I conclude that Patsystems has not proved that the ACE software reproduces the expression of the intellectual creation of NSA version 3.1, and the counterclaim accordingly fails.

[seduraed]

Re: BMWFS VT Process (Aug '16)

If the car is new then it has to be dealer serviced. So all that is required is that the workshop notes the milage and the company caname be programmed to issue an invoice if the mileage is above the agreed figure.

[Highlander777]

Re: BMWFS VT Process (Aug '16)

[MENTION=89744]xs2man[/MENTION], sounds like I have the same issue as you

I VT my BMW. BMWFS Have now put a red marker against my name on Experian for non payment of excess mileage. no where near your figure. let me know how you get on as I sent a letter to BMW. they have responded with a load of noise , basically we are stale mate , I will need to go to court if I want any joy

[xs2man]

Re: BMWFS VT Process (Aug '16)

@xs2man, sounds like I have the same issue as you

I VT my BMW. BMWFS Have now put a red marker against my name on Experian for non payment of excess mileage. no where near your figure. let me know how you get on as I sent a letter to BMW. they have responded with a load of noise , basically we are stale mate , I will need to go to court if I want any joy

Yes, I did have a look at your thread to see how you were getting on. I too feel I am now at a cross-roads. I was almost tempted to make them a "goodwill" offer to bring the matter to a close, but it was going to be substantially lower than what they were asking, and would have been on the basis that I accepted no liability for any past or future charges. In the end, I decided to threaten the court route as shown above.

I have just returned from a trip abroad with work, and there has been no reply to my letter. Experian have my credit score at 323 as of checking just there, but I do not know how often they update the score. Noddle has my score at 542 (but isn't due to update until around the 29th May). Both are incredibly poor scores though, so I can only assume they haven't removed the marker.

Now do I wait to see if they contact me by the end of the month? Write another letter showing the excellent breakdown of the financials by [MENTION=101684]jicholasnackson[/MENTION] that clearly shows that actually, if I had taken out the initial contract with a higher mileage allowance, I would have indeed paid less to get to the 50% of the total price payable, as the interest charged would have been less, and as such, BMWFS are actually better off overall due to the way in which the vehicle was purchased and then subsequently VT'd. Or do I just start legal proceedings?

Obviously it's up to me. I think the last course of action is the better one to take. I have given them the opportunity to revoke the marker against me, they have failed to do so, so now it's time to seek resolution. Plus, my work looks like it will be quiet for the next few months, so now might be the opportune time to do it.

[xs2man]

Re: BMWFS VT Process (Aug '16)

Reading this thread with great interest, looking forward to see a positive resolution for you @xs2man

Having re-read a BMW contract (should be same text apart from numbers) is the 2 clause issue a bit of a red herring. Surely each clause is the contract is separate unless implicitly linked to another within the wording of the specific clause, and clauses when invoked are independent of one another unless linked. Page 1 of the agreement states this for the excess mileage:

Note is only references the Termination clause on page 2, and NOT the Termination: Your Rights clause - I assume it can only reference the Termination clause because to reference the other clause would breach s.173 CCA.

When you VT under s.99 of CCA surely you are only invoking the Termination: Your Rights clause within the contract? Or would this have to be explicitly stated on the initial VT letter you send in?

As you are only invoking the Termination: Your Rights clause, all other clauses not linked become unenforceable at the point you terminate the agreement. So while BMW may argue that "Excess Mileage Charges will accrue immediately prior to termination" this would only apply if you invoke the Termination clause, which is a BMW contractual clause?
The reasonable condition argument to charge the excess mileage makes absolutely no sense as they are using a contractual clause on a terminated agreement to award themselves damages - surely only a judge can award such speculative damages?

Another point of note, from their letter dated 8/9/16, the whole third paragraph seems to actually shoot down BMW's whole position:

The first sentence in the paragraph is covered in the argument above.
The second sentence is where I think BMW have actually missed their own point and undermines their later arguments about unreasonable condition, take two people that out two agreements one at 10k miles and one at 20k miles per annum over 48 months. Note the total amounts payable below, these example taken from BMW own website.

Person 1 does 50k miles and VTs month 35. Person 2 does 50k miles and VTs month 31. They have both fulfilled s.100 of CCA and paid half, but BMW chasing excess mileage from person 1 citing unreasonable condition. How can that be, are they now chasing the same figure from person two given same mileage (it could be argued person 2 has done more "damage" given he did 50k miles in 4 months less than person 1)?
Mileage clearly is not a factor in the total price of the vehicle as total price does not change with increased mileage (you will note it actually goes down due to interest calculations on higher monthlies). BMW seem to be picking and choosing which parts of the CCA they wish to apply!

Surely this example also clearly shows that by the definitions of the CCA, the Excess Mileage Charge is a penalty and not enforceable on a VT as per s.189 and definition of total price. Am I right in thinking this clearly is not a "liability" with regards to s.99(2), as all "liabilities" would from parts of the Total Price?

That is a VERY interesting point you make there. I guess I should have done this myself and shown them that they have actually received more money from me as a result of the way I did it than what they would have received had I been more accurate initially with my mileage estimations.

Now do I write back to them mentioning this now? Or just keep it as an argument in court? I guess it's really irrelevant in court though, as the argument will be based on the termination clause as allowed under the CCA, rather than the results under a different hypothetical agreement.

If the car is new then it has to be dealer serviced. So all that is required is that the workshop notes the milage and the company caname be programmed to issue an invoice if the mileage is above the agreed figure.

The car was new. And was purchased with a 5 year service plan, so was serviced in accordance with the schedule, by my local BMW dealership. So there shouldn't be any argument on that basis.

[Highlander777]

Re: BMWFS VT Process (Aug '16)

hi

I considered paying off the debt but Experian are telling me that even if I pay it off, a marker still stands unless BMWFS admit it was put there in error. my personal view is that BMWFS believe we wont take them to court. I feel angry and it appears BMWFS are not allowed to do this but I will have to take them to court to get it resolved. to be honest, I am not clear how to proceed without paying someone

[xs2man]

Re: BMWFS VT Process (Aug '16)

hi

I considered paying off the debt but Experian are telling me that even if I pay it off, a marker still stands unless BMWFS admit it was put there in error. my personal view is that BMWFS believe we wont take them to court. I feel angry and it appears BMWFS are not allowed to do this but I will have to take them to court to get it resolved. to be honest, I am not clear how to proceed without paying someone

I guess it's all about preparation and presentation. I turn into a bumbling idiot whenever I have to do any sort of public speaking. I absolutely hate it. However, I suspect my solicitor would charge a pretty penny.

That being said, maybe not, as he was pretty reasonable when I had my speeding fine go to court a few years back. And also when the filth were trying to do me for dangerous driving about 15 years back, it didn't even make the court. I might give him a call actually, as I'm sure he was about £250 last time I had him in court, and if he can convey it with all the appropriate legalese, without me looking like a fool, it may well be worth it. Heck, I was gonna offer around that amount when I was considering the goodwill offer, so as long as he doesn't charge much more than that, I may well ask him. Of course, this may take longer than the 10 mins he stood in front of the PF and Sheriff, made a deal with the PF, and basically cut me a much smaller fine and amount of points than I was anticipating.