GMAC / Shoosmiths

**R0b** · 11th August 2016, 07:55:AM

Re: GMAC / Shoosmiths

It seems GMAC are a bit notorious on here for scaremongering by using Shoosmiths in order to pay up. Reasonable condition is subjective so ultimately is up to you as to what you think.

BVRLA is a trade body and deals with the rental business and fleet management business and its purpose was not for ordinary consumers looking for personal use car. The standard used is is a fair one when you look at the context of it in a commercial aspect i.e. the vehicles will be used many times by a number of customers and therefore the condition of the car will be required to be at a higher standard than what is defined in the CCA which is reasonable condition. Ask them for evidence of the vehicle at the time you first took possession of it so you can compare the difference (i'm presuming they won't have this because no finance company does an initial inspection so they will fail on this point). If they can't supply it then how can they prove that the damage was caused by you? They cannot obtain damages that which occurred outside of your possession. Get proof that the repairs were carried out and what reasonable steps they took to mitigate any losses.

As further proof that the BVRLA guidelines do not apply, the guidelines are carried out only in a "defleet inspection" which is predominantly used for fleet services such as rentals or leasing in a commercial aspect. This was used for personal use and therefore the standard being used is higher than is necessary. The guidelines are an industry standard in the commercial hire and leasing sector, not consumers for personal use.

You can refer to s.173 of the CCA and say that where a contractual term is inconsistent with the protection of the debtor under the CCA, that contractual term is void and unenforceable - using a higher standard than is required under the CCA creates an unjust enrichment and it is down to GMAC to prove this is not the case. Given that the car is already sold no doubt and they had other ways of selling it, I think it would be difficult for them to enforce it through the courts, especially with no evidence other than a sheet of paper whom no doubt have a relationship with Manheim so might not be as independent as it sounds.

Here's a relevant quote form Lord Denning in Brady v St Margaret's Trust 1963:

I would like to say that it is not right to assess damages under this head on the basis suggested to us by Mr. Harris, namely, that you are to take the initial price as evidence of the condition of the car. The price in these hire-purchase agreements is no guide to the condition of a car. There should be evidence by the hire-purchase company to show the condition of the goods at the time the agreement was made and to show how far the hirer has defaulted under it. As I read this clause, the hirer's duty is to keep the car in the condition in which it might reasonably be expected to be if he had looked after it properly. He need not put it in a better condition than it was when he hired it. He need only keep it in the condition in which a reasonably minded hirer would keep it. Thus he would repair it if there was an accident, and he would do the immediate repairs in the course of running the car, but no more. The hire-purchase company should give evidence of any default on his part in that duty.

I have yet to see anyone be taken to court but you might want to keep an eye on the credit file in case they haven't closed the agreement and are using this outstanding balance to incorrectly report information which is a breach of data protection.

What's the breakdown of charges?

**Markywdog** · 11th August 2016, 09:31:AM

Re: GMAC / Shoosmiths

Hi Rob
The vehicle was new when I took delivery from the Vauxhall Dealer so if it was damaged upon receipt I would have had it repaired so cant use that one.
Do I ask them for proof that when my car was collected it was repaired ? (am I understanding your statement correctly "Get proof that the repairs were carried out and what reasonable steps they took to mitigate any losses."

Am I right in saying GMAC are not members of BVRLA

Breakdown of charges :

Front Bumper scratched £70.00
Front Door L scratched £42.00
Rear Alloy Wheel L scuffed £55.00
Rear Bumper scratched £70.00
Rear Alloy Wheel R £55.00
Carpet holed £42.00
Literature Pack missing £31.70

What about where they write (what should I write back ?? ):
The Guidelines were provided to you at the point of Voluntary Termination and state that ‘Any damage or repair should be undertaken at the earliest opportunity, and any lost or missing items replaced’. By continuing through the process and signing to agree with the terms and conditions, shows that you have been made aware and agreed to the guidelines.

Furthermore, your Agreement would have also highlighted the following clauses which you are legally bound by:

· ‘If you fail to keep the Vehicle in good repair and condition as required by the Agreement, you may have to compensate us [GMAC] and pay our reasonable costs incurred by us a result’.
· ‘You will keep the Vehicle in good condition and repair which means that the Vehicle must: be free from mechanical or body damage; in its original paintwork and trim…’

Vehicles returned with damages depreciates the value of our clients vehicle and therefore increases our clients loss when the car is sold. The repairs are legally rechargeable under the Terms and Conditions as recompense for the loss in value and also under Section 99(2) and 100(4) of the Consumer Credit Act 1974.

Section 100 (4) of the Consumer Credit Act 1974 states:

“if the debtor has contravened an obligation to take reasonable care of good… the amount arrived under subsection (1) shall be increased by the sum required to recompense the creditor for that contravention…”
All of the above damages are a reflection of the quality to which you returned the vehicle in. It is apparent that you have not taken ‘reasonable care of the goods’ therefore you have incurred costs when returning the vehicle as stated in the Terms and Conditions.

Many Thanks, Mark

**R0b** · 11th August 2016, 10:09:AM

Re: GMAC / Shoosmiths

If you take a look at this thread here -> http://www.legalbeagles.info/forums/...highlight=gmac

it should give you some example responses in the same position as you and post #3 gives 2 more links to threads. If you want to draft something up I am happy to look over it

**Markywdog** · 12th August 2016, 06:47:AM

Re: GMAC / Shoosmiths

Hi Rob
I've read your other posts, as you suggested and am thinking of sending the below in response to the above (blue writing) from Shoosmiths

Dear Denise

I am writing further to your email dated 8^th August concerning your Client’s outstanding balance of £365.70 which relates to alleged damage to the vehicle under the conditional sale / hire purchase agreement between your Client and myself (the “Agreement”).

The amount your Client is claiming would relate to repairs that would put the vehicle in what would be otherwise deemed more than a reasonable condition and it is therefore unacceptable for your Client to charge more than is necessary for such losses it is alleging. On the face of it, the charges claimed by your Client may be construed as a penalty and as I am sure you are aware, penalty charges are unenforceable. Notwithstanding the above, your Client has so far failed to qualify or evidence how the charges represent a true loss of the vehicle and it seems to be purely a fishing expedition in an attempt to recover further monies as a result of the voluntary termination. I therefore require you to produce evidence which proves on the balance of probabilities, the market value of the vehicle in a reasonable condition, to the vehicle returned to your Client in its current condition.

Another point to note is you have referenced the BVRLA’s Fair Wear and Tear Guidelines. The BVRLA guidelines are used for the commercial leasing and renting of commercial vehicles, the vehicle under the Agreement is not a commercial vehicle nor is it used for any commercial purpose. Your Client is not a member of the BVRLA and your Client cannot rely on the fact that Manheim is a BVRLA member as the Agreement is between myself and your Client. Manheim has absolutely no interest or rights under the Agreement. Having contacted Manheim, they confirmed that the BVRLA standards are used when conducting inspections on de-fleet vehicles and not ordinary second hand used vehicles. Furthermore, your Client acknowledges that they have not paid for any of the repairs which they claim.

Your Client has therefore failed to mitigate their loss and is not entitled to the sums allegedly owed. You also seem to rely on section 100(2) however you fail to mention that the vehicle need only be returned in a reasonable condition and I am still yet to see any evidence that the vehicle was not returned in a reasonable condition. Small damage or scratches to a vehicle does not, on its own, determine whether or not a vehicle is in a reasonable condition. Claiming damages beyond a reasonable condition is contrary to the CCA which your Client is not entitled to. Accordingly, my position remains.

**R0b** · 12th August 2016, 07:36:AM

Re: GMAC / Shoosmiths

Looks fine, just made amendment to below in red

Originally posted by Markywdog View Post

You will be aware that under English law, there is a duty for the innocent party to mitigate the loss. Your Client has shown no evidence in which it has taken reasonable steps to avoid any further losses. The Agreement was lawfully terminated by myself under the Consumer Credit Act and your Client ought to have obtained the best price for the vehicle at the time. There were other avenues in which your Client could have sold the car such as through a dealership or privately yet it chose to auction the car which is known to attract lower prices than what could have been achieved. Due to your Client's failure to mitigate their loss they are not entitled to the sums allegedly owed. Furthermore, the fact that your Client did not have the repairs carried prior to the auctioning of the car, they have effectively waived their right to any damages. You also seem to rely on section 100(2) however you fail to mention that the vehicle need only be returned in a reasonable condition and I am still yet to see any evidence that the vehicle was not returned in a reasonable condition. Small damage or scratches to a vehicle does not, on its own, determine whether or not a vehicle is in a reasonable condition. Claiming damages beyond a reasonable condition is contrary to the CCA which your Client is not entitled to. Accordingly, my position remains.

**Markywdog** · 12th August 2016, 07:42:AM

Re: GMAC / Shoosmiths

Thanks Rob

So just making the last paragraph longer - So full response will be as follows ( yes ?? ):

Dear Denise

I am writing further to your email dated 8^th August concerning your Client’s outstanding balance of £365.70 which relates to alleged damage to the vehicle under the conditional sale / hire purchase agreement between your Client and myself (the “Agreement”).

The amount your Client is claiming would relate to repairs that would put the vehicle in what would be otherwise deemed more than a reasonable condition and it is therefore unacceptable for your Client to charge more than is necessary for such losses it is alleging. On the face of it, the charges claimed by your Client may be construed as a penalty and as I am sure you are aware, penalty charges are unenforceable. Notwithstanding the above, your Client has so far failed to qualify or evidence how the charges represent a true loss of the vehicle and it seems to be purely a fishing expedition in an attempt to recover further monies as a result of the voluntary termination. I therefore require you to produce evidence which proves on the balance of probabilities, the market value of the vehicle in a reasonable condition, to the vehicle returned to your Client in its current condition.

Another point to note is you have referenced the BVRLA’s Fair Wear and Tear Guidelines. The BVRLA guidelines are used for the commercial leasing and renting of commercial vehicles, the vehicle under the Agreement is not a commercial vehicle nor is it used for any commercial purpose. Your Client is not a member of the BVRLA and your Client cannot rely on the fact that Manheim is a BVRLA member as the Agreement is between myself and your Client. Manheim has absolutely no interest or rights under the Agreement. Having contacted Manheim, they confirmed that the BVRLA standards are used when conducting inspections on de-fleet vehicles and not ordinary second hand used vehicles. Furthermore, your Client acknowledges that they have not paid for any of the repairs which they claim.

You will be aware that under English law, there is a duty for the innocent party to mitigate the loss. Your Client has shown no evidence in which it has taken reasonable steps to avoid any further losses. The Agreement was lawfully terminated by myself under the Consumer Credit Act and your Client ought to have obtained the best price for the vehicle at the time. There were other avenues in which your Client could have sold the car such as through a dealership or privately yet it chose to auction the car which is known to attract lower prices than what could have been achieved. Due to your Client's failure to mitigate their loss they are not entitled to the sums allegedly owed. Furthermore, the fact that your Client did not have the repairs carried prior to the auctioning of the car, they have effectively waived their right to any damages. You also seem to rely on section 100(2) however you fail to mention that the vehicle need only be returned in a reasonable condition and I am still yet to see any evidence that the vehicle was not returned in a reasonable condition. Small damage or scratches to a vehicle does not, on its own, determine whether or not a vehicle is in a reasonable condition. Claiming damages beyond a reasonable condition is contrary to the CCA which your Client is not entitled to. Accordingly, my position remains.

Regards....

**R0b** · 12th August 2016, 07:50:AM

Re: GMAC / Shoosmiths

Looks fine, instead of regards just say "In the above circumstances, please confirm that the account is closed and no further action will be taken"

**Markywdog** · 18th October 2016, 12:18:PM

Re: GMAC / Shoosmiths

Its been 2 months since I last corresponded with Shoosmiths and I received a letter saying they were handing the claim back to GMAC because I haven't paid it. Since I have received a letter from GMAC saying they still want me to pay the outstanding claim. They also included the "damage" photos along with a highlighted parts on my Conditional Sale Agreement (Consumer Credit Act 1974) that reads under section 20 Care of the Vehicle ".... Vehicle will pass to you on delivery and you will be responsible for any loss or damage to it even if it is not your fault. You will carry out any repairs and replace parts when necessary. All repairs and replacement parts will become part of the vehicle" and they also highlight "...or body damage" in Section 20.2

I cant upload the letter from my work pc so will try once I get home, but basically is says they refer me to the BVRLA Fair Wear & Tear Guide and that Manheim are Trained Specialists. Also when signing the financial agreement I accept obligation in T&C's keeping the vehicle maintained/serviced.
They state that they are legally entitled to pursue amounts relating to damage to the vehicle by virtue of the following provisions of the Consumer Credit Act 1974 : s99(2) and s100 (4)
Their conclusion basically says they are "legally justified" to recover sums as result of my failure to take reasonable care of vehicle. That the vehicle was supplied brand new and returned with damages beyond Fair Wear and Tear

Please could you advise how I should respond

Many thanks in advance

Mark

**R0b** · 19th October 2016, 14:35:PM

Re: GMAC / Shoosmiths

Hi Mark,

It would be helpful if you could post up the letter so I can see what they have said.

**madzak** · 23rd January 2017, 20:04:PM

Re: GMAC / Shoosmiths

Hey,

I'd be interested to hear if there's any update in your battle with GMAC/Shoosmiths...I'm in a similar situation where GMAC want almost £1K for 'repairs' to a vehicle I've just VT'd, despite it being in the same condition I purchased it.

Cheers,

LP

GMAC / Shoosmiths

GMAC / Shoosmiths

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