VT query

[YorkUY13]

Good evening,

I'm new to the forum, although I have sought guidance before through previous posts and have found it very helpful, thanks.

I have posted a VT letter based on one of your suggested templates, and two days later received a call from the finance company explaining that since I had paid a lump sum to reach the 50% of the total amount payable 10 days ago, but it takes 28 days to be applied to account, they wouldn't be able to process the VT and I would need to write again to request it once the payment has been processed.

I have 2 questions:

1) Is their advice correct, or since I have already terminated the agreement and transferred the final payment to the finance company, the onus is now on the finance company to process the termination and collect the vehicle?

2) If the advice is not correct, what can I do to ensure the company acts on the VT?

Many thanks

[R0b]

1. No, check my VT guide specifically Section 99 of the Consumer Credit Act.

2. Write to them, ask them to explain where in the Act you are required to pay 50% before you can terminate and if they don't process it then you consider that a repudiatory breach. alternatively you can give them a reasonable period of time to collect or you will make arrangements to dispose of it.

[YorkUY13]

Great, many thanks for your prompt reply, Rob. Just to double check, should I include in the letter the bit about the repudiatory breach?

[R0b]

Up to you, it can be added as extra firepower but you don't necessarily have to go down that route.

[YorkUY13]

Thanks Rob!

[YorkUY13]

Update: I've sent a letter and an email to the finance company, asking where in the CCA it is stated that I needed to have paid 50% to terminate, and requesting that they act on my original letter and confirm arrangements to collect the vehicle. They've now replied to my email, stating that "Please note that in order for the voluntary termination amount to be Nil, you must have paid at least 50 % of the total amount originally financed under the agreement. This is shown in the attached agreement which was signed by yourself."

I have replied that this doesn't answer my question, and again requested that they act on my original letter and confirm arrangements to collect the vehicle, now adding that otherwise I will consider it a repudiatory breach.

[YorkUY13]

I have now received a further reply to my note before and letter, stating the following:

"Unfortunately you are unable to terminate your agreement at this point in time as your lump sum is still being processed."

Would you be able to tell me how can I get back to them? I've sent 2 letters and an email referring to the repudiatory breach, and I'm being completely ignored...

Many thanks

[R0b]

You could respond using something below.

Dear sir or madam,

I am rather surprised by your continued insistence that I cannot terminate the agreement until and after I have paid one half of the total price payable under the agreement.

You will be aware that Section 99 of the Consumer Credit Act 1974 states quite explicitly that I can terminate the agreement at any time before the final payment becomes due. Despite repeated requests for you to highlight in the Act the relevant provision indicating that the right to terminate is conditional upon having already paid one half of the total price, you have so far ignored that request and continued to to stand by your position that I am unable to terminate the agreement as I have not yet paid one half of the total price.

In light of the circumstances and having already pointed this out in earlier emails, your refusal to accept the termination notice constitutes a repudiatory breach. As a consequence, I am entitled to accept the breach and terminate the agreement, discharging all further obligations, and the right to seek damages as if the contract had been performed to its conclusion. In this case, such damages would be the remaining instalments under agreement if not the vehicle itself (on the basis of exercising the option to purchase).

Accordingly, you are therefore put on notice that, if I do not hear back from you by email by 4pm on Monday 5 August confirming, unequovally, that the notice of termination is accepted and that the date of termination is [insert date] 2019, I will treat non-reply as a repudiation of the agreement and therefore accept such breach terminating the agreement effect immediately.

I will then consider bringing a claim for damages against you as described above.

I trust this sets out my position and so I look forward to hearing from you by 4pm on 5 August.

[R0b]

The part about the date of termination should be the date that you originally gave in your notice letter

[YorkUY13]

Thanks again Rob!

[YorkUY13]

Incredibly, the finance company are not changing their position. This is the reply to my email on Friday:

"I can confirm that we have received your request to voluntary terminate the agreement, however as previously advised to you this cannot be actioned until after 15 August 2019 due to the partial early repayment that has been actioned on your agreement.

We would require you to contact us after 15 August 2019 to request the voluntary termination paperwork or you can request to do this via email."

Would you have any advice as to what I should do next? It's getting to a point where I'm doubting whether the people who read my letters and emails actually discuss them with anyone more senior, or they are just following standard instructions.

Many thanks

[R0b]

Flabbergasted by their response but that's there choice. Clearly they don't understand the problem and for companies like these, it's only when they get their fingers burnt do they actually decide to sit up and take notice.

You have two options:

1. Write to them and say further to their email on Friday 2 August, they have made it clear that they are not accepting my termination letter and expect you to write again once the payment has cleared. The right to terminate under S.99 is not a request, it is unilateral and is not conditional upon something else occurring. You can round it off by saying that you are accepting their repudiatory breach and terminating the agreement immediately.

The net effect of doing so is that you are discharged from all future obligations (this would include payment for damage to the vehicle, excess mileage etc. as those charges haven't yet matured) and you will now consider an action against them for damages as a consequence of the breach. A feauture of claiming damages for repudiatory breach is that you can claim loss of bargain i.e. the loss of opportunity to receive performance of the other party's obligations under the contract. This is at the very least could be the remaining months left of the hire period or even better, the exercise of the option to purchase the car but that would be an argument for court.

At the same time, you could also notify them that you are informing the DVLA that they are now the registered keep of the vehicle. If the car is parked on your private land you could say that any permission for it to stay on there is revoked. You could give them 14 days to collect the car otherwise it will be put on a public highway, both tax and insurance will be cancelled and all losses are borne by them - if the car is already on a public road, you can just give them the 14 days. Be aware though you should make sure that the DVLA have updated their records before doing this because it will come back to hit you, not the finance co. so you might want to give them 21 days instead of 14 to be sure.

2. The second option is straightforward, you do nothing and wait until 15 August to send your VT notice again.

[YorkUY13]

Many hanks Rob.

Can I just check, with the 2nd option, would I be changing the VT termination date to 15 August, or reiterating that VT was exercised with effect from 26 July? The vehicle's tax is due at the end of the month, and annual service mid September, so I wouldn't be surprised if they were doing this to be able to claim that.

[R0b]

It's effectively a fresh termination notice as if you never sent the first one. So you will need to specify the termination date and when it ends, also remember if you opt for this route you are still liable under Section 100(4) for failing to take any reasonable care whereas under option 1, you wouldn't.

[YorkUY13]

I have now sent an email and letter to BMW on the basis of option 1.

The only question I have now, as I'm following the process of telling DVLA of the transfer of the vehicle, is what to do with the vehicle tax. The DVLA website says that it would refund any remaining tax, but in the letter the tax cancellation is only referred to as taking effect if after 21 days the finance company have not collected the car. What happens if I inform DVLA, they cancel the tax and the finance company agree to collect it within the 21 days period?

Many thanks again