BMW Financial Services - Voluntary Termination/Excess Mileage

[stuckcluckets]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

Hi kurtCrisco,

I’m in exactly the same situation as you with BMW, I’ve copied your letter to the ICO and I’m also going to send it in, so thanks for sharing it with us.

Have you had anymore updates? I know they said ‘months’ for a reply but just wondering if BMW have still been hassling you since you told them the matter is with the ICO?

- - - Updated - - -

Hi Gazzarn, sorry to hear you're in a similar position to me.

Good on you for sending over a letter to the ICO also. BMW Financial Services need the "book thrown at them" so to speak - the more of us that raise official queries with the ICO, the more likely we are to see some results hopefully!

No more updates I'm afraid. I called the ICO around a week or so for an update, and was told that my enquiry was still in a queue waiting to be dealt with. They informed me that the oldest case waiting to be dealt with for BMW Financial Services is from back in September 2017, so they estimated another 4 weeks or so waiting time before I hear anything from them.

With regard to BMW Financial Services, I've not heard anything from them since their last "debt collection" threat letter back in October stating that they would be passing my case to 3rd party debt collectors if they had not received payment from me within 14 days. It's been well over 14 days and I've heard nothing, so watch this space!

[Gazzarn]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

I agree with you @they need the book thrown at them” I was very tempted to offer them 30% of the mileage as I was feeling guilty about it but after reading your thread I’m not going to bother!

Please keep us updated im sure there will be a lot of people waiting to hear the outcome.

[beaconsman]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

Just be aware that VT will affect your credit crating.

[97Joanne]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

Hi all
I'm in exactly the same position, although my letter to the FO raising my complaints about BMW financial services has come back stating "we require further information from BMW and will be back in touch within 12 weeks" so im still waiting the outcome( although like all on here I don't hold out much hope that they will favour the consumer !! )
In addition BMW finance are applying interest to what they call a late final payment. When I VTd my vehicle in June 17 and paid the final balance amount they still continued to take a direct debit payment !! I spoke to the bank and recovered the payment, however BMW now claim I owe them for the excess mileage and a final payment !! I'm not sure im doing the correct thing but I just store the demand letters and ignore them until the FO makes some sort of decision. Modern day bandits !!!
PS in my opinion ROB should be in the new year honours list for all his help and support on the Forum.....

[Guest]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

Just be aware that VT will affect your credit crating.

I suspect that for most people who are contemplating VT, their credit rating is not at the top of their agenda.

[R0b]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

And is also a misconception as the right to VT is enshrined in law so they can't put anything which affects your credit rating otherwise that would be negligence/breach of data protection. If however, there is a dispute about charges in some way or another, then some lenders will record a default on the credit file, rightly or wrongly.

[beaconsman]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

I meant that if you continuously VT with vehicles, there will be a marker added which would make it difficult to get credit facilities for a vehicle in the future.

[stuckcluckets]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

Apologies for not having updated recently - for some reason I have not been receiving notifications on my thread despite being subscribed.

Just be aware that VT will affect your credit crating.

First and foremost, voluntary termination might affect your credit rating in the short term, but as per R0b's comment, IT SHOULDN'T.
The voluntary termination right applies to the total amount of credit loaned as a part of the original agreement, and nothing more. Since something as vague as an excess mileage charge cannot possibly calculated at the beginning of the credit agreement, it cannot be included in the original loaned amount. Any charges which a lender believes you may owe must be pursued separately therefore.

In my case, the lender is claiming that I have not paid approx. £2,100.00 of my original credit agreement in order to leave the account showing as open on my credit file. When I exercised my right to voluntary terminate, they should have closed my credit account completely and submitted this to my credit file, before sending me a separate invoice for excess mileage. They have instead reduced it to the exact value above, to make sure it stays open. Lenders do this because they feel it gives them leverage - a way of effectively "bullying" consumers into paying them. Let's say hypothetically a lender does things the correct way: they send an invoice, the consumer ignores it/doesn't pay, their next step is to take the consumer to court to retrieve their money. "If this is the legally acceptable route, then why don't lenders take it?" I hear you ask - because they know they wouldn't win in court, that's why. Their claim that my credit account with them is still open is the only remaining hold they have over me. They know that as soon as they lose this hold (i.e. by closing the credit account as they should have done), there's nothing they can really do.

I suspect that for most people who are contemplating VT, their credit rating is not at the top of their agenda.

At first, I wasn't going to respond to this very unhelpful and presumptuous comment, but I decided I should for the benefit of all others reading this thread.

Like many others on here, my credit rating has always been at the very top of my agenda. My credit rating has always been fantastic due to careful money management. I chose to exercise my right to voluntary termination because my personal circumstances had changed, the exact reason for which the voluntary termination right exists in the first place. I'm a young adult, who's recently purchased my first home, and my car with BMW was becoming harder and harder to afford. I exercised my right to voluntary termination with a view to ensuring I didn't end up stuck in an agreement that was going to potentially cause me financial difficulties long term.

Your assumption that people who exercise their right to voluntary termination are or have been poor at managing their money is unfounded and unreasonable.


With the above covered, time for an update!

I called the ICO yesterday to follow up on the progress of my case with them, and they informed me that I'm next in line to be dealt with. They believe I should have either a response, or a case manager assigned at the very least, by the end of this week. This came as some welcome news indeed, as BMW Financial Services are continuing to add missed payment entries to my credit file, and this is now beginning to affect me negatively. I received a letter from my bank informing me that they have reduced the credit limit on my regularly used credit card by over two-thirds thanks to the missed payment entries on my credit file. Needless to say, I'm absolutely furious about this - I use the credit card for my business expenses, and this is going to cause me issues over the Christmas period.

All BMW Financial Services are doing by continuing this completely illegal song and dance is making me more determined. I'm close to a win, and I'm looking forward to it.

As R0b has said before in previous threads/posts on here, the best advice I can give others is that you need to be very well prepared to fight these lenders, potentially for a very long time.

I will update as and when things develop further.

[Gazzarn]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

Well said �� KurtCrisco, I’m in exactly the same position as yourself but have not contacted the ICO yet. I did write and offer BMW 50% of the charges to see if they would accept (£500) but they refused! I’ll wait it out and see what your outcome is before deciding my next step, many thanks for keeping us updated ��

[beaconsman]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

Well done, We are testing a Land Rover discovery on the weekend as 1. we get a straight 20% discount.2. It will hold its value better than the Kuga even after a year. With the discount we would not be in a bad position compared to the Kuga. 3. The main reason doing this is that we have been lied too by the local Ford dealership about the privilege discount we "apparently" had. It turns out we didn't get as much off as they were obliged too under the scheme. Therefore, we can save approximately £8k on a new Discovery Sport. Hopefully I will still have job after Christmas so we are not deciding anything until I know more (MRI scans etc) regarding the prognosis. If it does turn out I cannot work, then obviously it s a no brainer and we will have to VT the Kuga.

[R0b]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

Let's wait and see what the ICO says, I'd be interested to see if the depart from their position under the guidance they've provided.

On another note, I managed to attend a recent court case on excess mileage to try and understand what the lenders are arguing. The short story was that the hirer exceeded the agreed mileage for around 50-60k pro rata and the claimant was claiming damages based on the excess mileage clause in the contract and the formula it set out. As I understood, the Claimant (Mercedes Finance) conceded that it was not seeking to claim damages or outstanding instalments but simply the excess mileage charges. There seemed to be three parts to this though the person acting for the claimant didn't really say much except that the contract was breached and they should be entitled to those damages. Suffice to say, the hirer was a little out of depth although did make some good points but struggled on certain aspects which is perhaps why the judge was persuaded to award damages in full in favour of the claimant which was Mercedes Finance.

That being said, I thought the judge's decision was flawed on several levels. It wasn't clear to me the full reasons why the claimant succeeded and which grounds the claim did succeed, though he did state that there was a failure to take reasonable care but never actually explained why. Second, the claimant was also seeking to add VAT on top of the excess mileage charges (apparently in the contract) however, current law and even HMRC VAT guidance says that VAT is not applicable on compensation for damages of breaching the agreement or any liquidated damages yet the judge awarded the full amount sought.

If the judge did accept that the clause was enforceable, then that would clearly be contrary to section 100(1). As is well documented on here, this provision effectively acts as a limitation of liability clause whereby if you validly exercise that right to terminate then you are liable to pay 50% of the total amount payable. That sum is made up of the difference between what has already been paid including any other instalments due before termination - the right to recover damages for breach of the agreement, compensation etc. is not allowed. That is further evidenced by section 173 which which makes any clause that imposes additional liability void and unenforceable. So I fail to see how the judge could have concluded that this clause was enforceable.

Even if the judge relied on section 99(2) the above would apply, simply because clause 100(1) does state quite clearly, if you terminate under section 99 (meaning as a whole) then your liability will be limited to this. Even if the damages did accrue before termination, it would be capped at a maximum of 50% of the total amount payable. Again, I felt this was flawed and couldn't understand if the claimant succeeded on this point.

The point he did attempt to make clear that there was a failure to take reasonable care by exceeding the mileage agreed. The judge did ask the claimant whether they considered that going over the agreed mileage by one mile, 100 miles etc. as as failing to take reasonable care. She then conceded that she would think it is difficult to argue on that point - nonetheless the judge awarded the full amount as if the breach took place as soon as you go one mile over the agreed contractual limit. I think there was a serious flaw for two reasons. First, the obligation to not exceed the agreed contractual mileage is independent and a separate cause of action to the obligation to take reasonable care. The Claimant (and the judge too) appeared to combine the obligation not to exceed the mileage with the duty to take reasonable care of the car which is inherently wrong in my mind.

The duty to take reasonable care is a statutory one and can often be referred to as 'statutory negligence' because it is akin to the principles of negligence in tort but not exactly the same as the wording of the statutory provision may impose a higher standard than the reasonable care standard for negligence in tort. The hirer did provide evidence of the condition report that effectively said the car was in a reasonable condition so surely that should have discharged the duty to take reasonable care. I can only think that the judge allowed the claim on the basis of 'pure economic loss' (financial loss which arises in the absence of physical damage). However, the general rule of law establishes that when you have a duty to take reasonable care, this means that you have a duty not to cause physical damage but it does not extend to a duty of avoiding pure economic loss unless it is explicitly prescribed (or if you were negligent in making a statement or a professional giving advice or assuming a specific responsibility) - this is the well known case of Spartan Steel v Martin & Co. The claimant must have argued (and the judge agreed) that even though the damage report said the car was in a reasonable state, they should not be left with a depreciated car with high mileage. That point is quite clearly contrary to the law and I think if the judge made his decision along this reason was flawed. Of course if you damage something and you incur a loss as a result of that damage then that is considered consequential loss as explained in the Spartan Steel case but fro losses that occurs without physical damage, it is considered too remote or outside the scope of the duty.

Anyway, that decision is obviously not binding and there's a clear difference in the excess mileage in that case and yours but something about as to whether you want to pursue it. Luckily the hirer had the money to pay if he lost so he doesn't lose out on a CCJ appearing on his record. The gist of the story is that unless you know your defence inside out and can adapt to the questions a judge might ask you, it can be difficult for a litigant in person to argue these points.

[stuckcluckets]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

R0b, thanks for your last post, though I find it extremely unnerving indeed that you're posting several examples of loss scenarios and very few examples of win scenarios (or so it would seem).

Anyway, time for an extremely upsetting update. I finally heard back from the ICO today, who have now completed their investigation into my case. I quote the final parts of their response below:

Your complaint

You are concerned that BMWFS is reporting inaccurate information about you to credit reference agencies (CRAs). You have complained to the company but they have upheld their decision to report outstanding excess mileage charges on your credit file.

As you know, the matter you raise is relevant to principles 1 (fair processing) and 4 (accuracy) of the DPA.

Our assessment under section 42 of the DPA

Based on the information you have provided we have decided that it is likely that BMWFS has met its obligations under the DPA in this case. This is because the reporting of the outstanding amount in the circumstances you describe does not, in our view, amount to unfair processing of personal data or to the reporting of inaccurate personal data.

I note your references to our 2006 guidance on Filing defaults with CRAs and the 2014 Principles for the reporting of arrears etc. (or SCOR) guidance.

I should explain that the 2006 guidance was superseded by the SCOR guidance, which itself was updated in 2016. I apologise for the fact that our website is still showing the link to the 2014 guidance. This is now being rectified.

The reference to fees and charges on page 7 of the 2014 guidance does not appear in the 2016 version. Instead, the current version says the following under section 4, page 7:
The current balance then shows the actual amount due (which may include interest and charges) and must be updated over time until the account is satisfied (settled).

The 2016 SCOR guidance also says, at section 1, page 3:
Whilst most credit products are repaid monthly, some are not, such as home credit1. In these cases, the information will be adapted to meet the monthly reporting standards of the credit reference industry.

This should explain why the mileage charges, whilst not being part of your original monthly credit agreement, show on your credit report as instalments.


Needless to say, I'm furious and disgusted at the ICO's response. Not only are they going entirely against what's stipulated on their own website, they're completely ignoring the fact that BMW Financial Services have refused to take me to court for the amount that I allegedly owe them for excess mileage. A simple "sorry, we haven't got around to updating our website with newer legislation" simply isn't good enough.

So, in short, it's looking like I'm pretty f@*ked right now. I now have 3 missed payment records showing on my credit file, and as a result, it's the lowest it's ever been by a long way.

R0b - I'd really appreciate some advice on how to respond to the ICO, and also, how I best proceed from here. To tell you the truth, I'm really beginning to lose faith in this whole situation. At the moment, I'm definitely not winning, I'm losing.
I'd have initially thought that the next step would be to take BMW Financial Services to court (and I'm insured to do so) but after your last post, I'm unsure that I'd even win the case. Right now, I'm pretty concerned that these black marks on my credit file are going to remain there for the next 6 years or so, and at the worst possible time in my life for them to be present.

Thanks in advance for your help.

[R0b]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

Hi Kurt, clearly I wasn't aware that a new version had been released. The whole purpose of recording a default is when the relationship breaks down where there is arrears under the agreement - how can that be so when the agreement has already been terminated?

he reference to fees and charges on page 7 of the 2014 guidance does not appear in the 2016 version.

Here's the bombshell, it actually is in there and I would love to know this person's response and whether he/she still maintains that BMW have "met its obligations under the DPA."

Link below to the 2016 guidance, see page 7 paragraph 5:

A default should not be filed:
 If you make a payment, in time, that fully meets the terms set out in thedefault notice
 If jointly with the lender an agreement is reached for an arrangement and youkeep to the terms of that arrangement
 If the amount outstanding is solely made up of fees or charges
 If a lender is given evidence that a customer is deceased (for example averifiable death certificate, probate or letter of administration)

http://www.scoronline.co.uk/sites/de...02%20final.pdf

Is this person still going to say that they've met their obligations in processing fairly and accurately?! I'm amazed that this person has been able to reference Principle 4 yet failed spectacularly to notice the 4 bullet points identifying when a default should not be filed.

[stuckcluckets]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

Hi Kurt, clearly I wasn't aware that a new version had been released. The whole purpose of recording a default is when the relationship breaks down where there is arrears under the agreement - how can that be so when the agreement has already been terminated?


Here's the bombshell, it actually is in there and I would love to know this person's response and whether he/she still maintains that BMW have "met its obligations under the DPA."

Link below to the 2016 guidance, see page 7 paragraph 5:



http://www.scoronline.co.uk/sites/de...02%20final.pdf

Is this person still going to say that they've met their obligations in processing fairly and accurately?! I'm amazed that this person has been able to reference Principle 4 yet failed spectacularly to notice the 4 bullet points identifying when a default should not be filed.

Thanks R0b. I didn't spot this originally but you're absolutely right.

I've just sent the below response to the case officer at the ICO:

"Hi [name], thanks for your reply and for looking into my case.

With all due respect, your assessment below in fact contradicts the information outlined within the 2016 SCOR guidance which you make reference to.

I quote a statement you’ve made in your assessment below: “the reference to fees and charges on page 7 of the 2014 guidance does not appear in the 2016 version”. This statement is incorrect. On page 7, paragraph 5 of the 2016 SCOR guidance, the following is written:

"A default should not be filed:
- If you make a payment, in time, that fully meets the terms set out in the default notice
- If jointly with the lender an agreement is reached for an arrangement and you keep to the terms of that arrangement
- If the amount outstanding is solely made up of fees or charges- If a lender is given evidence that a customer is deceased (for example averifiable death certificate, probate or letter of administration)”
I have marked the relevant point in the above extract in bold for your reference. Below is the link to the full version of the 2016 SCOR guidance from which the above extract is taken:
http://www.scoronline.co.uk/sites/default/files/High%20Level%20Prinicples%20Document%20Version%202 %20final.pdf

The purpose of recording a default on someone’s credit file is to highlight the breakdown of a consumer’s relationship with a lender where there are arrears outstanding under the original agreement. The points written on page 7 of the 2016 SCOR guidance (quoted above) are a set of criteria that a genuine default notice MUST NOT fall into, in order to ensure that defaults are not incorrectly/falsely recorded against a perso n’s credit file. If a default notice filed meets any of the above quoted points/criteria, then it is considered false and therefore constitutes a breach of the Data Protection Act.

For clarity, the 2016 SCOR guidance explains (via the above quoted) that a default notice should only be filed against an individual’s credit file when the sum outstanding is made up of arrears under the original credit agreement, and nothing else. The digital copy of my credit file submitted to you as a part of my original complaint clearly shows that the original credit agreement with BMW Financial Services was TERMINATED (via way of voluntary termination) as of 01/07/2017. Therefore, any additional sum that BMW Financial Services allege is owed is not made up of arrears under the original agreement but “solely made up of fees or charges”, and therefore matches point 3 of the above quoted criteria. In accordance with the 2016 SCOR guidance therefore, a default SHOULD NOT have been filed.

In this scenario, since the sum that BMW Financial Services allege is owed is “solely made up of fees or charges”, a court would need to rule that this sum is definitely owed before it can be officially regarded as an outstanding debt. Until such time that a court has verified that this sum is in fact an outstanding debt, BMW Financial Services SHOULD NOT be filing a default against my credit file. Their doing so is constitutes an unproven claim that I owe them a sum of money, and is therefore a defamation of my character.

The above clearly demonstrates that BMW Financial Services have not met their obligations under the Data Protection Act in accordance with the 2016 SCOR guidance (that which you make reference to in your assessment). With this in mind, I would like to politely request that you review your findings, taking into account the above extracts taken from very guidance that you reference in your original assessment below (the 2016 SCOR guidance).

I’ll look forward to hearing back from you."


As you quite rightly said, their response to the above will be interesting. How they can possibly claim that BMW Financial Services have met their obligations under the DPA looking at the above?

I'll keep the thread updated as things develop.

[Dehaw]

Re: BMW Financial Services - Voluntary Termination/Excess Mileage

I'm in the exact same situation, here's a brief overview to date:

- VT Car the first week of September 2017
- Car gets dropped off at a BMW garage on 9th September 2017 as I'm emigrating to Queensland Australia on 11 September
- I fly to Australia, yeeha
- Later in September I get an invoice for around £4.4K for milage and damage, the damage was related to kerb damage to alloys
- I dispute the invoices and communication begins
- In October I see an outstanding amount for BMWFS for £4.4K, I'm amazed as clearly the agreement was terminated
- I dispute this with BMWFS who continue to send out letters to my emails telling me to pay, pretty much what you all have had
- I ask for all information they have on my file including the past 8 years and 4 BMW's which were all paid in full
- They send me a zip file asking me to call for the password, I didn't call
- Today, Saturday 16 December I get an email from Debt Managers asking me to call them, I will not call them
- I send an email asking for the password to this zip file containing my data

I have two properties in the Uk which are rented out so need my credit file to be clean, which it was until now.

I haven't written to the FO because I don't see any point, I think it's clear who they will side with, this is evident with the posts I've read so far.

I will write to the ICO to see how it goes because in all honesty, I'll happily blank BMW and anyone else it's my credit file I need resolved and given I now live in Australia they cannot chase me for payment, well, they can try but have no jurisdiction for any 'actual' debt to which I agree and owe so an invoice will not be enforceable.

Like you've pointed out the credit file issue is a tactic taken by BMWFS to force you to pay the invoice even though it does not form part of the agreement which was terminated.

I'll watch these posts and see how things progress and will likely submit a letter to the ICO with my evidence.

I'll keep you updated on how I progress.