BMWFS VT Process (Aug '16)

[jicholasnackson]

Re: BMWFS VT Process (Aug '16)

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.

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.

I would just issue proceedings as it will force BMW to respond - it will cost you 60ish quid depending on amount. Its ridiculous what they have done and they know they won't win in court otherwise they would have issued proceedings on you to reclaim the money that you allegedly owe. It is a clear attempt at blackmail/extortion - either pay up or we falsely mark your credit file.

The example I give is just to demonstrate that whatever the mileage, reasonable care of the goods is independent of this. You could have some do 100k miles under "an agreement" and if they return they wouldn't get hassled with this reasonable care argument. As R0b has said a car is there to be driven, it is ridiculous for a car manufacturer to claim that a car being used for its intended purpose means you are not taking reasonable care of it. I wouldn't even bring it up with BMW, mention it in court if it gets that far.

[jicholasnackson]

Re: BMWFS VT Process (Aug '16)

@Highlander777

You cannot back down now, the marker is already on your file and court action is the only way to remove. And when you win BMW will have to compensate you for the data protection breach, a grand was mentioned by R0b earlier in the thread as a successful amount.

[xs2man]

Re: BMWFS VT Process (Aug '16)

@Highlander777

You cannot back down now, the marker is already on your file and court action is the only way to remove. And when you win BMW will have to compensate you for the data protection breach, a grand was mentioned by R0b earlier in the thread as a successful amount.

Yes, true. There seems to be no option now other than to continue with court action.

I received this letter today. I apologise if the pictures are huge. Seems to be a reasonable account of events from their side. Obviously no mention of my side, such as the clause under which I I proceeded with the voluntary termination or anything of that nature. Anyway, I guess the point from here is that I now have to go to court.

[jicholasnackson]

Re: BMWFS VT Process (Aug '16)

[MENTION=89744]xs2man[/MENTION]

So lets break down that letter:

1.4 i. s.173 CCA would quash this and it was not invoiced prior to termination so null point.
1.4 ii. s100(4) says "reasonable care of the goods". BMW claiming "put vehicle out of good condition in line with signed agreement". What a load of tosh, see previous posts for counter arguments on this - car's sole purpose is transport.
1.5 i. So in 1.4 ii. they state you have not taken reasonable care of the goods, but in this point they are saying you broken contract and BMW are recovering "Excess mileage charges for Depreciation". Depreciation is NOT not taking reasonable care of goods. Further more this clause clearly states "If you end this agreement early (See Termination)"This is clear reference to the contractual termination of the contract as set out in the termination clause. As you have exercised you right to terminate under s99 (Termination: Your Rights) this clause becomes unenforceable anyway - the clause does not state (See Termination and Termination: Your Rights).
1.5 ii. This talks about the contractual termination clause, not the CCA termination clause so a null point.
1.5 In general this point is so muddled from BMWs side. By signing the agreement you did agree to the terms and conditions and they do not state you will be liable for excess mileage if you invoke the Termination: Your Rights clause. And if they try and argue it then contra proferentum applies.
3.2 If it was legal, why have you not been taken to court or had a CCJ issued against you - I know if I was a business I would want to recover monies actually owed! FOS has not taken the legal view because in their judgement they clearly state "what's is fair and reasonable in the circumstances" - clearly not a legal point of view.
3.3 Points covered in 1.4 and 1.5. And again the "Excess mileage charges for Depreciation" are for DEPRECIATION. And if BMW go back to the unreasonable care condition, as R0b has said many times, BMW have to prove to the court what damages they have incurred. As this excess mileage charge clearly references depreciation, from a clause that is not linked to the clause under which you terminated the agreement, I fail to see how this can be won by BMW in court.
4.1 Not sure how it works in Scotland ( I assume you live there), bt I did not think costs could be claimed in small claims court.

[MENTION=71570]R0b[/MENTION]
This all seems like smoke and mirrors. Is there anyway to start a judicial review(???) at High Court level to get a precedent set? I assume you would claim against the FOS for such a wishywashy "fair and reasonable" decision, rather than looking at the legal facts?

[xs2man]

Re: BMWFS VT Process (Aug '16)

Yeah, that's pretty much how I read it too. I didn't have much time to get into it earlier when I scanned the letter, so just thought I'd pop it up.

Scotland looks to be pretty similar in the way the the small claims court works. Looks like it'll cost £18 if I keep the claim under £200, and £100 if over that. As far as legal costs go, it doesn't look so great...

What are court expenses

If you win your case, you can claim back your expenses from the other party. Expenses will include money you have spent on:-

• travelling to court
• time off work
• any required reports for evidence
• funds for witnesses to come
• costs of using a solicitor.

Not so nice if I do indeed have to pay for BMWFS legal fees should I lose at court. Better if I win, as then his fees are paid.

Anyway, my solicitor is quite good, I might run this case past him and see what he thinks. Shouldn't cost a huge amount of money as he is quite good, and it's £1800+ I am gambling against here. If it had only been a couple hundred quid, I probably would have just paid it and it would have been over.

But either way, I guess I have to try at court regardless, else my credit rating is hooped for the foreseeable. I may get him to send a letter at least. It will show I have legal representation if nothing else, and that I am seconds away from going to court. Maybe it will show them that their scare tactics aren't going to get them a penny without going to court, so if they know they would lose, then I guess it'll maybe get them to reconsider. I may, or may not get him to represent me in court, depending on what he will charge me, but I don't need to tell them that. He has had cases thrown out for me in the past before going to court, so it's probably worth considering. If I do get him, at least I wont be worried about getting all tongue tied and nervous in court.

Anyway, we will see. If I have time, I will call my solicitor tomorrow and see what he says.

[R0b]

Re: BMWFS VT Process (Aug '16)

Ultimately, a solicitors job is to put forward their best arguments n behalf of their client so in this case even if BMW are in the wrong they will defend any allegations put against them.

Sadly, there are a number of flaws as already pointed out by Jicholasnackson, the main issue being that they are cherry picking certain provisions of s.99 and s.100 when they should be read together to understand a debtor's liability.

I do not disagree with them on s.99(2) however upon reading s.100(1) it does indeed explicitly say Where a regulated hire-purchase or regulated conditional sale agreement is terminated under section 99 the debtor shall be liable ... to pay to the creditor the amount (if any) by which one-half of the total price exceeds the aggregate of the sums paid and the sums due in respect of the total price immediately before the termination.

The above underlined highlight quite clearly that a debtor is liable only for 50% of the total price and any sums in respect of the total price immediately before termination. As discussed many a times on this forum, 'total price' excludes any sums for penalties, damages for breach of the agreement and compensation. The excess mileage clause is a liquidated damages clause for breach of the terms and would fall into the damages for breach category. Perhaps even the compensation category if they argued that it was for the depreciation of the value of the car. Therefore, although excess mileage may very well accrue (according to BMW) prior to termination, the result is that the charges are excluded for the purposes of calculating one's liability under s.100.

I also repeat the Court of Appeal case I've mentioned here before, Brady v St Margaret's Trust

... The price in these hire-purchase agreements is no guide to the condition of a car. There should be evidence by the hire-purchase company to show the condition of the goods at the time the agreement was made and to show how far the hirer has defaulted under it. As I read this clause, the hirer's duty is to keep the car in the condition in which it might reasonably be expected to be if he had looked after it properly. He need not put it in a better condition than it was when he hired it. He need only keep it in the condition in which a reasonably minded hirer would keep it. Thus he would repair it if there was an accident, and he would do the immediate repairs in the course of running the car, but no more. The hire-purchase company should give evidence of any default on his part in that duty.

In England and Wales at least, in a claim for contractual damages, the onus is on the party claiming such damages to prove its loss and generally, a court will not speculate unless there is no obvious way to quantify the damages. I would refer to a recent case I've also mentioned on here, Starbuck -v- Patsystems (UK) Limited [2017] EWHC 397 (IPEC)

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… 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.

As you can see, the courts are not willing to speculate what damages might be owed if evidence could have properly been adduced. BMW had the car, they arranged a condition report and the condition report failed to mention any opinion on the assessment of the car mechanically. As such it can be inferred that the car was presumed mechanically sound, though I would argue that would require an expert's opinion to do that but common sense ought to say that it would be reasonable wear and tear. If BMW are wanting to argue unreasonable condition, then they should be quantifying their damages against the cost of repairing the parts of the vehicle, not the excess mileage

All in all, my view would be that it is smoke and mirrors and if it went to court, BMW would either defend and take it all the way to court risking a decision being out there albeit non-binding or attempt to settle once proceedings have been issued. If you are in Scotland Xs2man I don't know the legal system there so I can't say much more, but if costs is a potential issue then you would be wise seeking legal advice. Alternatively, if you are close to the border you may wish to consider issuing proceedings in England which would come within the jurisdiction of the small claims court with limited costs if you lose.

@Jicholasnakson, a JR would probably be far too expensive against an Ombudsman's decision. The easiest and cheaper route would be through the courts and instead of asking for a district judge in the county court you could request a circuit judge which, in the event you lose can appeal it up to the High Court as opposed to going through DJ > CJ > HC (costs permitting of course). Because the claim would have been issued and began on the small claims track, any appeal including a High Court appeal, would be limited to small claims costs, so you'd effectively be paying for any appeal costs applications and BMW for example would have to bear their own which of course may come at a considerable cost.

[xs2man]

Re: BMWFS VT Process (Aug '16)

Just found this

The costs to raise or defend a simple procedure claim vary. If either you or the other person uses a solicitor this obviously adds to the cost substantially. You might have to pay court expenses to your opponent if the sheriff decides against you and you lose your case. If the claim in your case was less than £200 no expenses can be awarded. If the claim was between £200 and £1500 limited expenses can be awarded, up to a maximum of £150. If the claim was between £1501 but under £3000 then expenses up to 10% of the claim may be awarded.
Claims between £3001 and £5000 follow the general rule that whoever is successful has their costs paid for by the losing side.

So that doesn't sound so bad. To be honest, I don't really care about getting any money back as such, as welcome as it might be. I'd really be happy with just having the marker removed. However, if my maximum liability for going to court, for their defence costs, is £150, then I can live with that I guess.

I didn't get time to speak to my solicitor today. I'll try and contact him next week.

[R0b]

Re: BMWFS VT Process (Aug '16)

Ah well that isn't so bad then, providing you can afford it but ultimately, the only way of having it resolved is to go through court action.
Generally, if they do settle then they will more likely than not want to gag you with a confidentiality clause saying you can't discuss any settlement or the terms of it. My personal view is that for something like this its a load of rubbish and just don't want others knowing what has happened particularly as any damages will be relatively low value so it could be rejected especially if it is them seeking to settle.

Alternatively if you do sign with the clause, the simplest way around that is to blab your mouth before signing it because they won't be able to gag you retrospectively

See what your solicitor says and go from there.

[xs2man]

Re: BMWFS VT Process (Aug '16)

I was wondering how I'd seen very little in the way of resolved cases on here, or elsewhere for that matter. I guess if such a thing does come about, then all you need to know is that if you see me post a solitary , then all is well with the world again, lol.

[Highlander777]

Re: BMWFS VT Process (Aug '16)

Evening all - can someone advise how I start court proceedings with BMW. I don't have a solicitor. is that my starting point ?

[xs2man]

Re: BMWFS VT Process (Aug '16)

I don't think so. You shouldn't need a solicitor. I am only thinking of contacting mine because I have used him for years, and know he is really good. I may not even use him to start proceedings, but I don't know yet. I just thought it might be an idea to run this by him first, and see what he says.

As far as I know, you can start proceedings yourself. But I too would like advice on how to go about this. Crunch time is here now, so I am wanting to get this underway asap really.

[ostell]

Re: BMWFS VT Process (Aug '16)

If you are thinking of raising a claim then you need to register with MCOL. Here's the link. It's not instant so get started.

[Highlander777]

Re: BMWFS VT Process (Aug '16)

Hi Ostell. I had a look at the website. quick validation question. basically , BMWFS have put a marker against my name for what they are saying non-payment of excess mileage. what guidance would you given in terms of putting any compensation down + what justification would l put or should I not put any value just highlight that bmwfs have incorrectly added a debt to my credit file ?

[Highlander777]

Re: BMWFS VT Process (Aug '16)

where has everyone gone ?

[R0b]

Re: BMWFS VT Process (Aug '16)

@Highlander777 @xs2man

I'm afraid I can't help if you are based in Scotland, I know nothing about Scottish law and how it all works.

Nevertheless I have been pondering over something in the last few months and I am ni the process of putting something together which might assist at least in having the default removed. Section 42 of the DPA allows any person to request the ICO to make an assessment as to whether the data controller is in breach of the DPA.

Now I have to admit I have always been aware of the s.42 assessment but I've never used it in practice, so I don't know how it is set out or how to go about it hence the need to do some reading and research. At the very least I'd imagine you'd need to have some evidence together along with the responses from the lender which states their position. From what I can see however, the lenders seem to be in breach of the ICO guidance on recording defaults and they could order the removal of the default but also it could strengthen a claim against the lender for breach of the DPA.

It is unlikely I am going to get something posted on here before the end of June but I will try to keep you updated as I juggle everything. I would not say it is a slam dunk, but its certainly worth doing short of commencing proceedings.