BMW Financial Services - Voluntary Termination/Excess Mileage

[stuckcluckets]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

All, happy new year!

Time for an update - had a call from my case officer at the ICO today. They were calling to inform me that despite the further evidence I've sent, their view still remains the same. They believe that (and I quote)...

"The information that BMW Financial Services have submitted about you to CRAs is not a breach of the Data Protection Act, as they have not issued an actual default notice"

Essentially, this whole situation hangs on the default notice point. The 2016 SCOR guidance for the Data Protection Act mentions terms under which a default notice should not be issued, but nothing about when a missed/late payment entry on an account should not be issued. To cut a long story short, the ICO are saying they can do nothing because BMW Financial Services have not issued an actual default - BMW Financial Services are quite clearly aware of this, and as such, are continuing to add missed/late payment entries instead in order to make sure they do not breach the Data Protection Act, thus allowing them to continue their attempts to bully me into paying them. It's clever, I'll give them that, but extremely deceitful.
This theory is further backed up by screenshots sent to me by a couple of you watching/following my thread, whereby BMW Financial Services are behaving in exactly the same way - refusing to issue an actual default notice, but continuing to add entry after entry after entry for missed/late payments.

I asked my case officer the following question on the phone...
"In the event that BMW Financial Services had issued a default notice on my account for the amount that's solely made up of fees/charges, what would the ICO do?"

They answered by saying...
"The ICO would instruct BMW Financial Services to remove/revoke the default notice they had submitted, as it would qualify as ingenuine."

I explained that their answer itself clearly illustrates how BMW Financial Services are 'abusing' the system in order to use CRAs as leverage when chasing people for payments that they have no legal proof are due. My case officer had to take a pause for a while to process this quite valid argument. All they did was repeat their original statement, explaining that there was nothing the ICO could do, since BMW Financial Services have not issued an actual default notice. I attempted to step away from the technicalities surrounding the default, and approach things from another angle; bottom line, BMW Financial Services are submitting information about me into the public domain (via CRAs) that is causing harm to me as an individual, and not proven to be true. They said, despite this potentially being the case, this does not constitute a breach of the Data Protection Act. I asked them to explain this statement - they could not. They advised that my only next course of action in this scenario would be to take BMW Financial Services to court.

I have asked my case officer at the ICO to keep my case open, and send me a detailed summary of their findings in writing, including the following:
- A clear definition of when a default notice SHOULD be filed, and what processes/systems are in place to deal with lenders who are refusing to file default notices when they should be
- A clear summary of the ICO's findings, and how exactly they believe that BMW Financial Services are acting in accordance with the Data Protection Act
- Confirmation of what the ICO would normally do in the event of them finding that a default notice had been incorrectly/unduly submitted to CRAs

I'm absolutely shocked and appalled by all of this. I cannot believe that the ICO are claiming there's nothing they can do, despite how blatantly BMW Financial Services are playing the system.

R0b - any advice at this point would be much appreciated.

[Dehaw]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

I questioned BMW to ask why my credit file shows the amount owing on what was the agreement, I would have thought that since the invoices are not directly related to the credit agreement that this should have a zero balance along with saying the agreement was satisfied. They wrote back and said they have correctly shown what's due on the credit file, to me that makes no sense. They have though provided screenshots of my credit file on their systems where it's marked as either V or VT depending on the company (experien/equifax/call credit).

I have now received 5 emails from Debt Managers asking me to call, only their last email referenced BMW, I will ignore them of course, is anyone else been in touch with these people or any other debt collection agency?

I received the password for the documents but three of the latest agreements that shows the mileage was missing, I am now waiting for those being sent, I've had 5 agreements all in.

[kreig]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

@kreig and @vipvipvip, thanks very much indeed for sending me your screenshots via private message.

Both look very similar to mine. Points to note, both of your reports show that the account entry is not yet in default, even though it should have been after 8 missed/late payment entries. BMW Financial Services seem to have stopped upping the CAIS code number at 6, rather than proceeding through to 8 and submitting a default - I wonder if this might be deliberate, on the basis that they're fully aware that submitting an actual default notice would be a blatant breach of the Data Protection Act?

Furthermore, @kreig, your screenshot even features Experian's own definition of voluntary termination...


The above alone says it all for me. It's ironic that the CRAs are accepting these missed/late payment entries to continue, even though they display their very own definition of Voluntary Termination on the very same credit file!

Both of you are far further along in this process than I am. My advice to you would be to speak with the ICO, but raise a slightly different argument to mine - I would question the legality of BMW Financial Services ignoring the standard CAIS code 1 - 8 grading system, and NOT posting an actual default notice. They're both breaking the rules/guidance around submitting data to CRAs, but also ignoring the guidance surrounding when a default notice should be legally issued - either way, they're in breach of the DPA big time. I'm not yet in your same position, as I have not received the full 8 missed/late payment entries, which is why the ICO are currently saying that because an actual default notice has not YET been issued, all seems above board to them. You both are able to argue this in a very different way to me.

Thank you and thanks, Rob too for his furthering of the point. I will use your template from page 1 and open a complaint with the ICO in the next few days (Get xmas out the way). Hopefully with enough complaints, this will help all of us.

Furthermore, I actually reported mine as an error to Experian. They wrote to BMW who naturally said it was correct, after submitting the argument to Experian they basically told me they cannot amend anything without BMW's permission.

[R0b]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

Also to add against what you have said Kurt, the reporting of the information must not be unwarranted by reason of prejudice to the rights and freedom or legitimate interests of the individual.

In my view, the reporting of the information is misleading because it gives the impression to third parties that (a) the agreement remains alive and not terminated and (b) can be apparent on first view that the outstanding amount relates to the main price of the agreement i.e. the credit that was advanced to you implying that you failed to make payments under the agreement which is simply not true, and in fact you did meet all of the monthly instalments. All in all, it suggests that your creditworthiness as an individual means your most likely to default on your obligations to repay your debts - which is also untrue for reasons already stated.

If BMW have stopped reporting the CAIS codes at 6 but then continues to report without using that code, then that to me seems like a clear abuse of position. Even more so if the account is being shown as active which indicates that the agreement is live - that in itself is of course not accurate nor true. If the agreement is shown as settled, how can they continue to report missing payments? Again, that would indicate misleading, not accurate and not up to date.

Any one of these payments would have been due following termination of the agreement, by not accurately recording the account as settled at the time of termination, again they are unlawfully and/or unfairly processing your information which is of course having a negative affect.

[stuckcluckets]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

[MENTION=82745]kreig[/MENTION] and [MENTION=67685]vipvipvip[/MENTION], thanks very much indeed for sending me your screenshots via private message.

Both look very similar to mine. Points to note, both of your reports show that the account entry is not yet in default, even though it should have been after 8 missed/late payment entries. BMW Financial Services seem to have stopped upping the CAIS code number at 6, rather than proceeding through to 8 and submitting a default - I wonder if this might be deliberate, on the basis that they're fully aware that submitting an actual default notice would be a blatant breach of the Data Protection Act?

Furthermore, [MENTION=82745]kreig[/MENTION], your screenshot even features Experian's own definition of voluntary termination...

...and allows you to return the car and owe nothing once you have repaid half the total price.

The above alone says it all for me. It's ironic that the CRAs are accepting these missed/late payment entries to continue, even though they display their very own definition of Voluntary Termination on the very same credit file!

Both of you are far further along in this process than I am. My advice to you would be to speak with the ICO, but raise a slightly different argument to mine - I would question the legality of BMW Financial Services ignoring the standard CAIS code 1 - 8 grading system, and NOT posting an actual default notice. They're both breaking the rules/guidance around submitting data to CRAs, but also ignoring the guidance surrounding when a default notice should be legally issued - either way, they're in breach of the DPA big time. I'm not yet in your same position, as I have not received the full 8 missed/late payment entries, which is why the ICO are currently saying that because an actual default notice has not YET been issued, all seems above board to them. You both are able to argue this in a very different way to me.

[kreig]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

A screen grab would be helpful, thank you.

Interesting, sounds as though it’s showing exactly as mine is. My latest missed/late payment entry takes the total up to 4, and this is the first showing as a “C1” entry.

Edit - just looked this up C1 means “Active Account”. C2 means “Closed Account” and C3 means “Account in Default”

Sent, check your inbox. Sounds the same except mines ran on for a while (Without me noticing)

[stuckcluckets]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

Hi I did edit the last post, as I missed the question first time around.

They are down as missed payments I have well over 8 though (Think I am at 12 or so). Entry code is C1. According to Experian I don't have any defaulted accounts.

Im quite happy to PM you a screengrab if that helps you.

A screen grab would be helpful, thank you.

Interesting, sounds as though it’s showing exactly as mine is. My latest missed/late payment entry takes the total up to 4, and this is the first showing as a “C1” entry.

Edit - just looked this up C1 means “Active Account”. C2 means “Closed Account” and C3 means “Account in Default”

[kreig]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

Thank you, I appreciate the support. I will be sure to submit any rulings anonymously for others to use in their own disputes.

As per my previous post, I have a question - is there an actual default notice on your credit file, or are BMW Financial Services just issuing missed/late payment entries as they are in my case?

Hi I did edit the last post, as I missed the question first time around.

They are down as missed payments I have well over 8 though (Think I am at 12 or so). Entry code is C1. According to Experian I don't have any defaulted accounts.

Im quite happy to PM you a screengrab if that helps you.

[stuckcluckets]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

Amazing work, just goes to show how grey this whole situation is and how underhand what BMW are doing.

I hope that once you win this fight they keep a clear record for the rest of us to quote

Thank you, I appreciate the support. I will be sure to submit any rulings anonymously for others to use in their own disputes.

As per my previous post, I have a question - is there an actual default notice on your credit file, or are BMW Financial Services just issuing missed/late payment entries as they are in my case?

[kreig]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

So I had a call from my case officer at the ICO this afternoon. We were on the phone for quite some time. Long and short of it is this - I quote their words "I appreciate what the guidance says, however, we can't see any default notices on your credit file, so it appears that BMW Financial Services are acting correctly".
What they mean to say is that, at the moment, the missed/late payment entries that BMW Financial Services are continuing to submit to my credit file have not yet reached the point where they equate to an official 'default' status. I believe that in order for this to be the case, there must be 8 missed payments. This is according to the CAIS coding system, whereby each missed payment is given a code of 1 through to 8 consecutively. Once you reach 8, a default is applied. Interestingly, none of the missed/late payment entries that BMW Financial Services have submitted carry the appropriate CAIS code (they all have a code of 0 showing).

I explained the situation to my case officer in more detail, and gave them more information on the background to the complaint I've raised (not that they should need this, as I provided them with a wealth of information to begin with). It turned out that their understanding of the law surrounding Voluntary Termination was limited, and this is why they were struggling to understand the situation. I explained to them that, even if BMW Financial Services were able to prove (in court) that the alleged sum is truly owed, this would need to be submitted to my credit file as a separate debt/account - I explained how this alleged charge cannot be a part of the original credit account on my credit file as this has been terminated. I explained that BMW Financial Services are unlikely to ever attempt to issue a full default notice (hence the odd CAIS code situation mentioned above), as they know full well they have no legal right to. I then went on to question the legality (in terms of the Data Protection Act) of BMW Financial Services continually adding a missed/late payment notice for each and every month since my Voluntary Termination without ever issuing a full default notice - surely this is a breach of the Data Protection Act, in that it is hugely damaging to me as a person.

By the end of our conversation, they seemed to be understanding the situation a little better. They asked if I could send them some information surrounding our rights when it comes to Voluntary Termination, so that they can familiarise themselves with the situation a little more before reassessing. I've sent an email with exactly that contained.

I can't believe how difficult the ICO are being here, nor can I believe that they don't understand the law surrounding Voluntary Termination. It's just crazy. I will update as soon as I hear any more from them.



Can I ask, is there an actual default notice on your credit file, or are BMW Financial Services just issuing missed/late payment entries as they are in my case?

Amazing work, just goes to show how grey this whole situation is and how underhand what BMW are doing.

I hope that once you win this fight they keep a clear record for the rest of us to quote

EDIT: Missed your last bit. Its just missed payments too, I have well over 8 though (Think I am at 12 or so). Entry code is C1.

Im quite happy to PM you a screengrab if that helps you.

[stuckcluckets]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

So I had a call from my case officer at the ICO this afternoon. We were on the phone for quite some time. Long and short of it is this - I quote their words "I appreciate what the guidance says, however, we can't see any default notices on your credit file, so it appears that BMW Financial Services are acting correctly".
What they mean to say is that, at the moment, the missed/late payment entries that BMW Financial Services are continuing to submit to my credit file have not yet reached the point where they equate to an official 'default' status. I believe that in order for this to be the case, there must be 8 missed payments. This is according to the CAIS coding system, whereby each missed payment is given a code of 1 through to 8 consecutively. Once you reach 8, a default is applied. Interestingly, none of the missed/late payment entries that BMW Financial Services have submitted carry the appropriate CAIS code (they all have a code of 0 showing).

I explained the situation to my case officer in more detail, and gave them more information on the background to the complaint I've raised (not that they should need this, as I provided them with a wealth of information to begin with). It turned out that their understanding of the law surrounding Voluntary Termination was limited, and this is why they were struggling to understand the situation. I explained to them that, even if BMW Financial Services were able to prove (in court) that the alleged sum is truly owed, this would need to be submitted to my credit file as a separate debt/account - I explained how this alleged charge cannot be a part of the original credit account on my credit file as this has been terminated. I explained that BMW Financial Services are unlikely to ever attempt to issue a full default notice (hence the odd CAIS code situation mentioned above), as they know full well they have no legal right to. I then went on to question the legality (in terms of the Data Protection Act) of BMW Financial Services continually adding a missed/late payment notice for each and every month since my Voluntary Termination without ever issuing a full default notice - surely this is a breach of the Data Protection Act, in that it is hugely damaging to me as a person.

By the end of our conversation, they seemed to be understanding the situation a little better. They asked if I could send them some information surrounding our rights when it comes to Voluntary Termination, so that they can familiarise themselves with the situation a little more before reassessing. I've sent an email with exactly that contained.

I can't believe how difficult the ICO are being here, nor can I believe that they don't understand the law surrounding Voluntary Termination. It's just crazy. I will update as soon as I hear any more from them.

+1 with a similar issue.

Not sure how I didn't come across this thread when searching before, but some really great info on here. Rob and Camel have been helping me on my own thread.

Following keenly, as just opened a case with the FO over the same issue. The amount I allegedly owe for excess mileage is tiny but the default on my credit rating is the issue.

Can I ask, is there an actual default notice on your credit file, or are BMW Financial Services just issuing missed/late payment entries as they are in my case?

[kreig]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

+1 with a similar issue.

Not sure how I didn't come across this thread when searching before, but some really great info on here. Rob and Camel have been helping me on my own thread.

Following keenly, as just opened a case with the FO over the same issue. The amount I allegedly owe for excess mileage is tiny but the default on my credit rating is the issue.

[Dehaw]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

Yes the invoices thing was a big revelation for me to find out yesterday but I have been probing a girl called Lucy since September so simply reply to her now, I have tried contacting their customer service people for this password but have never had a reply from them, Lucy, on the other hand, has been responding and our emails are becoming more personal, which is maybe why she let her guard down regards these invoices.

Their argument is the damage and mileage accrued over the past 3 years and is based solely on their assumption that because the car has higher than agreed mileage that they would get less for the car when sold, of course, they have no intention of trying to get what they can for the car as it goes to auction, just because it has higher mileage doesn't mean that the car is in a poorer condition when I've been spending literally thousands per annum via the franchise.

I read somewhere else that if they sold the car for more than the outstanding amount that they should return the remainder since the agreement was for a specific cost.

I went back with another email last night asking for the results of the car sale along with other information relating to the agreement being cancelled and that the invoices are a different issue so they should update my credit file according to the ICO or I would submit a complaint to them.

I've not yet heard back from her but if and when I do I'll certainly update the post.

Keep me posted on the ICO as I will be doing the same thing, at the moment they have not submitted a missed payment as it shows it's up to date and that's 3months that's passed.

ADDITION: I've literally just checked my mail and here was their response:

Just to clarify, although agreement 2013322 was voluntary terminated and the invoices raised for excess mileage and damage were for this terminated agreement, the excess mileage and damage was accrued/occurred up until the point of termination. We are therefore able to invoice for these under the rules of the Consumer Credit Act. We have correctly reported any unpaid balance on this agreement to the Credit Reference Agencies. As our stance on this isn’t going to change, I would advise you to contact either the BVRLA or the Financial Ombudsman Service who will be able to investigate further on your behalf.

With regards to the mileage allowance given to you by the supplying retailer, if you feel that you were mis-sold your agreement due to the mileage allowance given, you will need to contact the supplying retailer directly and make a formal complaint. If you feel that they aren’t dealing with your complaint/responding to you, then please contact our Customer Escalations Team here at BMW FS and they can liaise with the retailer:- csescalations@bmwfin.com

Lastly, your vehicle sold at Auction for £11,750 + VAT

The car finance was sitting at 19K at point of termination.

[stuckcluckets]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

I had to contact BMWFS to ask for this password so that I can access the files and thought I'd ask confirmation of:

- The date I VT'd the car
- The date the invoices were raised
- Why my credit file still shows the agreement open with a balance of £4400

Here was their response:



I went back and confirmed that the agreement in question was terminated and that this should be reflected in my credit file and set as satisfied, not simply a reduction of the cost of the agreement with the invoices being added to the agreement which was clearly terminated.

You may also note that they are now referring to the invoices as invoices, which of course is what they are, what they aren't is a credit agreement so should not be getting reported on my credit file.

I have advised that if my credit file is not correctly reported with immediate effect that I would be making a complaint to the ICO.

I have yet to hear back from them, in the meantime though I'm still being chased by 'Debt Managers' to whom I have had no contact and will ignore.

As soon as I get the documents I'll first make a complaint to BMW, then the FO and then the ICO, after that I suppose it would be court proceedings if no suitable agreement has been met, however, I do believe their practices are not in line with the CCA or indeed the ICO.


Any thoughts on this so far?

I have been reading through/following your posts Dehaw, I just haven't responded as the jurisdiction in Australia vs. UK doesn't apply to myself, and so I can't really be of any assistance/advice there.

In response to your last post, I find it interesting that BMW Financial Services are referring to the alleged charges as "invoices". They have been EXTREMELY careful in how they've worded each and every piece of correspondence with me, and certainly made sure not to mention the word 'invoice'.

I wouldn't expect to receive a response from BMW Financial Services. At best, they'll probably just inform you that "all future correspondence may be read but will not be responded to". I don't hear a thing from BMW Financial Services anymore, and they ignore any contact from me. I guess they'd just had enough of hearing how immoral their behaviour is - some people really struggle with being told they're wrong.

I wouldn't bother with the Financial Ombudsman. It's a whole lot of hassle for a pointless and irrelevant result. Frankly, they're utterly useless - they apparently only make judgements based on what they personally believe to be "fair and reasonable", and do not take the law into consideration. They're supposedly a public service designed to benefit/protect the consumer, but by ignoring the law, I feel they do the complete opposite.

As an update from my side, I spoke with my case officer at the ICO yesterday regarding the last email I'd sent them (quoted in an earlier post above), as I had not heard back. They verbally confirmed their previous error regarding the 2016 SCOR Guidance, and asked for a newer copy of my Experian credit file that illustrates how BMW Financial Services are still continuining to submit missed payment entries to CRAs. They said they'd aim to come back to me today with an updated assessment. I received the below email from them shortly after:

Further to our recent telephone conversations and your email on the subject of the 2016 SCOR guidance.

I sincerely apologise for misinforming you about the situation regarding defaults and charges. Having read through the section you highlight, I see your point about cases that are solely made up of fees or charges. As you point out, the guidance says at page 7:

A default should not be filed:

• If the amount outstanding is solely made up of fees or charges

Pleaseleavethiswith me while I review the matter in detail. I will come back to you as soon as I can.

I'll update the thread with their new assessment as soon as I receive it.

[Dehaw]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

I had to contact BMWFS to ask for this password so that I can access the files and thought I'd ask confirmation of:

- The date I VT'd the car
- The date the invoices were raised
- Why my credit file still shows the agreement open with a balance of £4400

Here was their response:

With regards to the Voluntary Termination documents, these were received and loaded on the 04/09/2017. Your excess mileage and damage invoices were sent to you on 19/09/17 and dated 26/09/17 (to allow you time to receive the invoices in the post).

Invoices need to be paid within 28 days of the invoice date before any non-payment would be reported to the credit reference agencies, which we are obliged to do under the rules of the FCA.

As advised previously, we have correctly reported the outstanding balances for excess mileage and damage (which had accrued up to the point of termination) to the credit reference agencies, therefore you next step will be to contact the Financial Ombudsman Service if you disagree with our stance. I must advise you though that we are yet to be contacted by the FOS surrounding your complaint?

I went back and confirmed that the agreement in question was terminated and that this should be reflected in my credit file and set as satisfied, not simply a reduction of the cost of the agreement with the invoices being added to the agreement which was clearly terminated.

You may also note that they are now referring to the invoices as invoices, which of course is what they are, what they aren't is a credit agreement so should not be getting reported on my credit file.

I have advised that if my credit file is not correctly reported with immediate effect that I would be making a complaint to the ICO.

I have yet to hear back from them, in the meantime though I'm still being chased by 'Debt Managers' to whom I have had no contact and will ignore.

As soon as I get the documents I'll first make a complaint to BMW, then the FO and then the ICO, after that I suppose it would be court proceedings if no suitable agreement has been met, however, I do believe their practices are not in line with the CCA or indeed the ICO.


Any thoughts on this so far?