BMW Financial Services - Voluntary Termination/Excess Mileage

[Dehaw]

Kurt do keep us updated, I'm assuming then that if you're going to take them to court this will essentially be a precedent to set for the other people like you and I regarding the mileage charges?

I've had BMW explicitly tell me these are invoices but they did say that they are in relation to the agreement which is why they left the £4K on the credit file although I argued that these were generated after the agreement was terminated, so surely it would not exist since it's terminated but it remains open on my credit file.

[stuckcluckets]

Hi Kurt, I applaud you for your persistence. I am somewhat perplexed at the ICO's response suggesting that the excess mileage charges are not considered to be a charge or fee - perhaps its not defined because its so bloody obvious!

I wonder is there any reference in your contract which refers to excess mileage charge/fee? If it does I would think that is obvious in itself.

If the excess mileage doesn't fall within the definition of a charge or fee, then what is it? The only other logical category it would fall under is credit, but credit is defined under section 9 of the CCA as the following: "In this Act “credit ” includes a cash loan, and any other form of financial accommodation."


To my mind, the case officer has answered his own question here. Overdraft fees is deemed a charge/fee and so is a default charge for missing a repayment. These charges are in the contract otherwise the lender wouldn't be able to claim for it! So the fact that the mileage clause is in the agreement is irrelevant, it's the question of whether the sums are considered to be a fee or charge. In my mind (and any other reasonable person's mind) it is classed as a charge or fee, if it's not credit as per the CCA definition then it can't be anything else.

I would speculate that the case officer knows he has shot himself in the foot and is trying to recover the situation. Notice how he omitted the word "charge" when referring the the excess mileage clause. I couldn't possibly think that a court would agree with this case officer's opinion that the excess mileage sums are not a charge or fee.

Although not defined in the SCOR guidance, there is no good reason why fees or charge should not be given their usual and ordinary meaning. For example, I would define "charge" as meaning an obligation or liability e.g. You are charged with removing all rubbish from the garden / You must pay a £30 administration charge.

Thanks R0b.

I agree entirely. Their response is frankly ridiculous, and as you rightly point out, sounds like a desperate attempt to dig themselves out of a hole and avoid getting involved.

Despite the fact that any reasonable person would consider excess mileage claims as fees/charges, the ICO have demonstrated quite clearly that they aren’t going to take a reasonable/logical approach here. I could potentially respond arguing the point and ask them what does constitute a fee/charge in their view, but I fear it would be a total waste of time. I expect, if they even responded at all, that they’d just find other ways to skirt around the issue.

I’ll give it some thought, and let you know if I choose to respond.

[stuckcluckets]

Kurt do keep us updated, I'm assuming then that if you're going to take them to court this will essentially be a precedent to set for the other people like you and I regarding the mileage charges?

I've had BMW explicitly tell me these are invoices but they did say that they are in relation to the agreement which is why they left the £4K on the credit file although I argued that these were generated after the agreement was terminated, so surely it would not exist since it's terminated but it remains open on my credit file.

Will do Dehaw.

Yes indeed. In fact, if anyone wants to send any evidence to me from their own situation (redacted for the removal of personal information of course), this will only strengthen my, and ultimately our, case.

[kreig]

Excellent work again Kurtcrisco, they are seemingly going out of their way to justify BMW's position, the same experience I am finding with the FO.

I would not be surprised to see the guidelines updated to remove the reference to charges soon.

[Martin Emerson]

Hi Kurt.

My wife is in exactly the same boat as you with BMW Finance. After the BMW was VT'd they have come after her for £1700 in excess mileage which we obviously have not paid. Credit report at Experian has plummeted and the account is now flagged as Delinquent but the CAIS code for each "missed payment" is 0. We are about to do a section 42 and was wondering if there has been any progress with your claim?

[Martin Emerson]

Sorry everyone. I have just seen there are some very detailed updates posted recently.

[97Joanne]

Im in a very similar situation and will check my credit report as well. I do have a feeling it will be similar to those on here as they are chasing me for over £3000 !!! its making me ill

[97Joanne]

Just checked my credit with noddle. its not good reading either its shows I VT in May 2017 and then scores 1 - 6 indicating late payments since then !! coloured coded in red whatever that means !! happy to send evidence if someone wants it and shows me how to do it !!

[stuckcluckets]

All, thanks for your replies/posts.

I will be sure to keep you all updated. I need to collate all the evidence to send to my insurer, and I'm currently recovering after an operation so it may take me a few days to do so.

I definitely agree it would be good for me to collate as many examples as possible of other's credit files that have been damaged by BMW Financial Services. I'll find a secure way of doing this.

[R0b]

Hi Kurt,

We've already discussed Principle 4 regarding their obligation to keep data up to date and accurate, but it might be worth pointing out to your insurers that the DPA actually defines data as being 'inaccurate' (section 70(2) if:

"... they are incorrect or misleading as to any matter of fact."

You might also want to supply them with a copy of the Experian information guide on credit score and credit report (https://www.experian.co.uk/downloads...erian-YCRE.pdf)

Page 12 gives information on the status codes and the suggests the status code "U" should be used in various examples such as when there is a dispute about payments. At the top of page 13, it also says that an active account "is one that is still open. We keep a record of active accounts until they are settled, and then for six years afterwards".

As a matter of fact, you terminated the agreement yet BMW have kept the agreement active to enable them to continue reporting these missed payments which, as already pointed out, do not relate to any credit repayments but ultimately gives the impression that they are missed credit repayments. As a result of that, Experian would be retaining the information longer than is necessary because until it is recorded as closed, the 6 year period for retention does not kick in.

All in all, it is not only incorrect but misleading and contrary to section 70(2).

[stuckcluckets]

Hi Kurt,

We've already discussed Principle 4 regarding their obligation to keep data up to date and accurate, but it might be worth pointing out to your insurers that the DPA actually defines data as being 'inaccurate' (section 70(2) if:

"... they are incorrect or misleading as to any matter of fact."

You might also want to supply them with a copy of the Experian information guide on credit score and credit report (https://www.experian.co.uk/downloads...erian-YCRE.pdf)

Page 12 gives information on the status codes and the suggests the status code "U" should be used in various examples such as when there is a dispute about payments. At the top of page 13, it also says that an active account "is one that is still open. We keep a record of active accounts until they are settled, and then for six years afterwards".

As a matter of fact, you terminated the agreement yet BMW have kept the agreement active to enable them to continue reporting these missed payments which, as already pointed out, do not relate to any credit repayments but ultimately gives the impression that they are missed credit repayments. As a result of that, Experian would be retaining the information longer than is necessary because until it is recorded as closed, the 6 year period for retention does not kick in.

All in all, it is not only incorrect but misleading and contrary to section 70(2).

Thanks for your advice here Rob. Currently struggling to secure legal cover from my insurer, due to the fact that the original agreement with BMW Financial Services was opened a few years back (i.e. before I actually had the insurance cover in place). Bit daft really as my claim is in relation to their breaching the DPA, but anywho.

Got another response from the ICO today in response to my last couple of emails to them. I contacted them questioning their last response on the basis that they have provided absolutely no explanation of how they came to the conclusion that the alleged outstanding balance is "not a fee/charge" in their view.

I write in response to your recent correspondence.

With regard to your concerns about the interpretation of a fee or charge. Whilst I appreciate that BMW Financial Services (‘BMW’) refer to the requested payment as a charge or fee, we must interpret the intent of the guidelines. When interpreting what is a charge or a fee we will consider the account as a whole.

In this instance there was a clause in your contract with BMW that made it clear that you would be expected to pay for any mileage over the agreed amount.

As you had exceeded the allowed mileage in this clause we do not consider this to be a charge or fee as intended by the SCOR guidelines. We therefore consider it appropriate for BMW to default this account once they consider the relationship to have broken down.

Turning to your concerns about the possible marking of the account in default, the Data Protection Act 1998 (‘the DPA’) does not specify when an account should be marked as in default.

As explained in our previous correspondence, we would expect an organisation to report an account as in default once the relationship has broken down. Whilst this is typically between three to six months of no payments being made, it is dependent on the circumstances of the case and for an organisation to decide.

Were we to consider the account to be solely made up of fees or charges then BMW would not be expected to mark the account as in default. This would not require BMW to cease reporting the information to the credit reference agencies.

Finally, I should clarify that complying with the SCOR guidelines is good practice. Should an organisation not comply with them this would not mean they are non-compliant with the requirements of the DPA.

A case review is the final stage of the ICO complaints procedure. If you believe that you have received a poor service from us, or if you believe we have not treated you properly or fairly, then you may be able to complain to:

The Parliamentary and Health Service Ombudsman, Millbank Tower, Millbank, London SW1P 4QP.

As per usual, what a load of contradictory, pointless, unhelpful trash.

Not really sure what my next step is going to be if I can't secure legal cover.

[stuckcluckets]

Hi all.

I've been chasing my insurer for a verdict on whether or not I would be covered for a claim in relation to the above, and their verdict remains unchanged - they're arguing that because I opened the agreement with BMW Financial Services a few years back (long before I was insured with them), they won't honour my claim.

It's utterly daft, since nearly all insurance packages run for a 12 month term only - have you ever heard of a car finance agreement being less than 24 months? No, me neither.

Any advice on how I can start moving down the court proceedings route without incurring extortionate costs would be much appreciated.

R0B - I'm not sure what advice you can offer here in terms of handling the legal proceedings side of things?

[jezza2016]

Hi All - I'm in the same boat having successfully VT'd the BMW and paying 50% in full, but then BMWFS added mileage charges and a single interest charge on those charges. I'm planning on trying small claims route, but there's so many approaches on the forum, I'm unsure as to the best way forward.

However, my question is this - as there are so many of us with exactly the same issue can we not launch a class action against BMWFS to once and for all get a high level ruling on this matter? I would willingly donate funds to a 'crowd-funded' action, as I am sure most of the rest of our affected members would.

I would rather pay into that fund than give BMWFS a single penny of their illegal and malicious claim against me!

[pt2537]

Hi All - I'm in the same boat having successfully VT'd the BMW and paying 50% in full, but then BMWFS added mileage charges and a single interest charge on those charges. I'm planning on trying small claims route, but there's so many approaches on the forum, I'm unsure as to the best way forward.

However, my question is this - as there are so many of us with exactly the same issue can we not launch a class action against BMWFS to once and for all get a high level ruling on this matter? I would willingly donate funds to a 'crowd-funded' action, as I am sure most of the rest of our affected members would.

I would rather pay into that fund than give BMWFS a single penny of their illegal and malicious claim against me!

https://consumercreditlitigationandd...y-busy-lately/

you may find this of assistance, i did also appear on Moneybox recently where the issue of excess mileage was in dispute, ill dig out the link for you

[Phaeton]

http://www.bbc.co.uk/programmes/b09nqnxd