BMW Financial Services - Voluntary Termination/Excess Mileage

[scotstoun]

You won't get concrete case-history from me as I'm not a lawyer and don't have the time or inclination to trawl case-history to find some. On the other hand, you are relying on YOUR interpretation of elements of the CCA and one piece of case-history involving MBFS. Whilst that case was successful, and I'm not familiar with the individual details of it, I do know from having worked in debt recovery that there have been successful claims made by finance companies for excess mileage costs on VT'd PCPs. I'm not in that line of work anymore, but when I was, whilst my colleagues and I were not involved in the claims or any subsequent court action, we were involved in enforcing the decrees that finance companies obtained against debtors. More than once, we heard the story from some poor punter who had lost his job, was struggling to keep the household finances afloat, so VT'd the car with the expectation that they could dodge charges such as excess mileage... based on stories they'd read online.... only to find out otherwise to their cost.
What it ultimately comes down to is people attempting to defraud the finance company by exceeding the agreed mileage, then expecting the finance company to pick up the tab. Online contributors such as yourself might feel smug that you're 'beating the system' or 'the corporate giants', but ultimately you're promoting fraud and in most cases contributing to a worse outcome for debtors. How many PCP agreements have YOU PERSONALLY taken out and VT'd having exceeded the mileage allowance? How many contributors have YOU PERSONALLY represented in court on cases of excess mileage on a VT'd PCP? And how much of YOUR PERSONAL money have you put up to help a forum contributor defend themselves in this type of case? I'd guess the answer is none in every case.

[R0b]

So, if it's a contractual term, but technically not a charge, despite being phrased as an excess mileage charge or words to that effect, then what exactly is it?

It is a contractual term that forms part of the agreement and is not different to a collection charge, administration charge or other similar charges. No matter how much you fluff it up as being something else, it's either a charge or it isnt. If the agreement runs it's full course and the debtor opts to return the car, the excess mileage term would apply because the debtor did not exercise their VT right.

As for your point about anyone opting for the lowest mileage and getting away with it, that is true and no doubt there are some who do that. However, if finance companies were savvy enough (some of them seem to be) they would look at other alternative ways of claiming, such as misrepresentation.

Again, you seem to be making bold statements but lacking the evidence to back it up. I'm not entirely sure the point you are making about your solicitor and his/her charges. There are (I believe) several solicitors, paralegals etc. Who do post on here so your point about 'real lawyers' not spending their time on forums is untrue.

Rather than try to attack me directly and make certain assumptions as well as others, how about we stick to issue which is the excess mileage debate.

There's clear evidence to support excess mileage charges not being enforceable i.e. a court judgment, but still awaiting something concrete from you.

[scotstoun]

We give up our time to assist those who cannot afford to pay for legal advice...


why is it that we are not seeing legal proceedings issued by the many who post on here?

^^ You've answered your own question.

With regard to Santander trying to record a Default on your credit record for not paying collection charges, the simple answer is that a 'collection charge' in itself is not integral to the item being purchased whereas excess mileage is. Using your reasoning, the BMW my wife currently has on a 4 yr PCP with a 44,000 mileage allowance, could be VT'd after 3 yrs and 9 months (50%) and 64,000 miles with no penalty. Yes the car can be VT'd under the statutory terms of the CCA with no penalty, but the excess mileage component is separate to this (although rolled-up into the one agreement). This is allowed and the excess mileage is not technically a 'charge' in the sense that you and Stuckcluckets seem to think.

In the case of my wife's car, when it reaches 4 yrs old, CAP notes a £110 difference in value for every 1k miles. If you were correct, anyone taking out a PCP would opt for the lowest mileage allowance possible in order to reduce their monthly rentals, safe in the knowledge that the finance companies couldn't claim for excess mileage if VT'd. (Doesn't really matter if you intend to pay the balloon or trade in back to the dealer for a new agreement)

FWIW, the finance companies raise a number of Simple Procedure Actions (in Scotland) every year for exactly this, and I would assume do similar in England & Wales also. The numbers are relatively small as most people recognise their legal obligation to pay for the excess mileage, and where they're daft enough to believe what they read on forums such as this, the defendant response form dropping through their letterbox from the Sheriff Court (in Scotland) soon focuses their mind. If they're still too arrogant to believe that they have to pay it, and wish to consult their solicitor, a bit of professional legal advice soon ensures that they pay up tout-suite (Stuckcluckets' home insurer recognised his case was going nowhere, but palmed him off with a polite excuse about his policy not covering the relevant periods of his PCP agreement). From the finance company's perspective, the £19/102 cost of raising a Simple Procedure action is just an administrative cost of pursuing the debt. In summary, the claims are being issued, but never reach court because the defendant settles.

With 5,678 posts on this site you clearly fancy yourself as a consumer lawyer... a bit like those people who buy second-hand ambulance service clothing on the 'bay and a scanner, and pretend to be paramedics.

My solicitor charges a flat fee of £185 per hour. Real solicitors, lawyers, and even para-legals don't spend their evenings giving out 'freebies' to randoms on the internet. If readers want to risk their financial and personal reputation off the back of some free 'advice' given by people on this site then they're definitely getting what they pay for. Good luck!

[R0b]

You guys can present what you like, but these non-payment cases are dealt with by vehicle financing companies on a daily basis and are 99.99% successful.

And I assume you can share with us that fact? These agreements are regulated by and subject to the CCA, the terms of the HP agreement do not overrule statute law - that is a simple fact.

We give up our time to assist those who cannot afford to pay for legal advice but it is ultimately their decision as to whether they want to take on board what we suggest or not.

On another note, if these contractual charges are routinely dealt with by their legal team on a daily basis and are 99.99% successful, why is it that we are not seeing legal proceedings issued by the many who post on here? To give you a prime example from experience, Santander thought they could get away with trying to record a default on my credit file for collection charges, a term in the contract which according to you would be enforceable like excess mileage charges. I issued a claim and they ended up settling the case in a much worse position (see the settlement below), but according to you, they should have been successful and if that's the case, why did they choose to settle the matter?

You have said multiple times that what is suggested on here is 'incorrect advice' but at the moment you haven't provided a shred of evidence to back that up. MBFS were threatening legal proceedings to debtors left, right and centre prior to that court case Amethyst referred to but since that decision, they seem to have gone rather silent. So I repeat what I said before, if this is so clear cut, why are we not seeing more and more finance companies issuing claims?

Rather than spouting out drivel, why not provide a reasoned explanation as to why the contractual terms prevail over the CCA and back it up with evidence, I'm happy to hear it.

[scotstoun]

^^ One case, which I've heard of, but am not familiar with the exact issues particular to it which caused MBFS to fail in their claim. You guys can present what you like, but these non-payment cases are dealt with by vehicle financing companies on a daily basis and are 99.99% successful. Outstanding claims are routinely 'batched-up' and passed to legal for further action. It's at that point that belligerent 'taking on the big corporate machine' contributors on forums such as this simply 'disappear' so as to not lose face.
Simple fact is that you are encouraging naïve people to avoid paying what they have contractually agreed to pay, thus resulting in further problems for them, whilst you 'internet lawyers' happily bash out more poor and incorrect 'advice' to other gullible punters, safe in the knowledge that you personally face no reputational or financial risk.

[R0b]

It's quite clear that you've come at this from a contractual perspective and have no clue about the provisions of the Consumer Credit Act, or like many finance companies, have glossed over the appropriate provisions - are you sure you aren't from BMW You are free to disagree but as per the extract provided by Amethyst, the Court seems to think otherwise.

[Amethyst]

For reference - from a transcript of a judgment handed down Feb 2018. This was MBFS rather than BMW

[scotstoun]

I came across this post last night, spent the best part of an hour which I'll never get back reading it, and can't believe some of the falsehoods and victim-mentality I'm seeing!

Stuckcluckets - You've read an urban myth on the internet about being able to dodge excess mileage charges on a PCP voluntary early termination and are one of a tiny minority of customers who have bought into it. I don't blame you... people believe what they want to believe, however it seems to have become an obsession. You're reading FAR too much into the whole situation and are taking advice from people like Rob which is completely off-the-mark. The reality of the situation is very simple... you have a finance agreement which includes an additional element (within the one agreement) for dealing with excess mileage. You exceed it, you pay. CAP, Glasses, and even the Parkers Guide details the value attached for every 1,000 mile variation for a given age of car. It really is that simple, as I suspect you've finally realised despite your various postings throughout the 12 pages of this thread. BMW Finance have been perfectly reasonable with you despite your increasingly erratic posts about them on this site. The only reason they haven't taken you to court is that court action is a last resort and in the cost-benefit analysis, it is better for them to gently coerce you to pay by recording your non-payment with the credit reference agencies. I would also say that the ICO have been far more reasonable than most organisations could ever be expected to be. They are there to deal with the 'information' aspect, not to be your personal champion against BMW Finance. Seems you need to grow up and lose the entitled self-righteousness approach. Your posts do nothing to help people visiting this site to seek advice on genuine issues.

Rob - It's obvious from your posts on this topic that you are neither legally qualified, nor even part-qualified, and are in no position to be offering advice to people like Stuckcluckets or anyone else seeking advice on similar matters. Later on in your posts you advise him that legal action is the only route left, but I don't see you offering to support him with your own finances (on a no-win no-fee basis perhaps). There is of course a very good reason why you're not prepared to 'put your money where your mouth is' and most of the 'advice' you've given will only lead visitors to threads such as this into financial difficulties, negatively affecting their credit-scores, and result in them being pursued by debt collection agencies - possibly resulting in court action, wage arrestments, difficulties in being able to secure finance in the future etc.

Dehaw - I used to work chasing down people who didn't want to be found, in order to get payment from them. If any of the following apply to you: you are registered as an Australian citizen, are registered to vote, have a bank account or credit-card, own or rent a house in your own name, are a tenant who has placed a deposit, have a job, a mobile phone, a land-line, broad-band connection, utilities account (to name just a few of the ways) then any respectable debt-collection agency can track your current address down within a morning if they are so inclined. Depending on the sum involved, the debt could simply be passed to a debt management company who may choose to pursue you in Australia. Unless we're talking thousands, it is unlikely that they will pursue you in Australia, however I have previously pursued a debtor who fled to Australia. I won't bore you with the process, but it resulted in an arrestment of wages, upon which the debtor promptly paid-up (with costs on top). The easiest thing to do would be to pay the excess mileage charge, but if you decide not to, then that is your decision. Just be aware that you may well find it lurks in the background waiting to bite you in the backside at some inconvenient moment in the future. The excess mileage charges were clearly spelt out to you in the original contract. It's breath-taking arrogance and dishonesty on your part that you think you can just walk away from them. BMW Financial Services are in the right, you are very much in the wrong.

[Kajan81]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

If it is causing some distress then there is always the option to send a 'without prejudice' letter (which means a court has no right to see the letter and is private between you and BMW) to offer some form of lower settlement (perhaps start at 30%) on the condition that any settlement is (1) made without admission of liability and (2) that BMW undertake to remove all adverse entries reported to credit reference agencies and mark the account as 'settled'.

Or you could continue to stand your ground and see what the ICO comes up with and decide from there.

KURTCRISCO


How did you get on with your case in relation to BMW finance? I ask because I am in exactly same situation.

Thanks.

[Cmilligan]

Hi Rob

Unfortunately it was all done verbally. I had asked when I complained that the calls be listened to as I was offered a reduced payment to pay on the day, no mention of a part payment. I was also told my credit file would be amended a accordingly.

Chris

[R0b]

Hello

Thanks for the update.

I presume based on that email you offered to pay the amount in return for removing the adverse entries? Did you get that in writing or was it done verbally? Some BMW users have had issues when they've paid on the premise that the entries will be removed only for BMW to backtrack on their word.

[Cmilligan]

Hi folks a quick update from my end, I complained to BMWF regarding my credit file and received the following reply...

Thank you for remaining patient whilst we have investigated your complaint.

On reviewing your account I can see that we did amend it with Equifax, Experian and Call credit on 8 June 2018 following the full and final payment received on the 29 May 2018.

I have checked your credit file and can see that it is not reporting correctly, so I have manually amended it to remove all the late payment markers and show a zero balance with a “P” flag to reflect your agreed partial settlement. This update may take up to 5 days to reflect on your credit file.

I can only apologise for our previous amendments not updating, and have raised this issue direct with the credit reference agencies.

Should you have any further reason to contact us about your credit file please contact the Recovery Department direct.

Please note that, under the terms of our Complaints Procedure, this is our final response. If you are dissatisfied with it, you have the right to refer your complaint to the Financial Ombudsman Service, free of charge – but you must do so within six months of the date of this letter.

If you do not refer your complaint in time, the Ombudsman will not have our permission to consider your complaint and so will only be able to do so in very limited circumstances. For example, if the Ombudsman believes that the delay was as a result of exceptional circumstances.

[pt2537]

Hi David

i would recommend paying the mileage charge as it’s had such an impact on my life having been refused credit for s mortgage etc. They unfortunately have us over a barrel and I can’t see anything changing any time soon!!

Thanks

chris

The excess mileage charges may well be unenforceable, and if that is the case, then the default placed on your credit file may be open to challenge using the Grace v Blackhorse ruling, just my initial views

[Amethyst]

KurtCrisco - have you taken this any further ?

[Cmilligan]

Hi David

i would recommend paying the mileage charge as it’s had such an impact on my life having been refused credit for s mortgage etc. They unfortunately have us over a barrel and I can’t see anything changing any time soon!!

Thanks

chris