Voluntary Termination - Mercedes

[Farks]

On the 27 September 2017, the FOS replied to me and stuck to their guns, taking the view that Mercedes Benz had taken a fair and reasonable approach.

....your complaint about Mercedes-Benz Financial Services UK Limited

Thank you for your email returning the form we sent you with our decision on your case.

Because you have rejected our decision, neither you nor the business is bound by it. I have therefore now closed our file on this case.

I have heard no more from Mercedes Benz Financial Services until today, 14 months later!!!!

The letter was from DLC, advising me that they are currently preparing a file to be sent to their Solicitors. Thereafter, the letter is very vague and states that they COULD make an application for a Court Decree to be granted against me, that it COULD result in additional costs to me.....

It comes across as a bullying type of letter to me with loose threats about action!!

They want me to make contact with them within 7 days to speak through a repayment plan!!

Should I make contact with them? Any advice would be welcome.

What about the recent County Court Claim where the claim my MBFS was dismissed? [Mortimer Clarke]

Is there any new guidance regarding that outcome?

Keith

[R0b]

Hi Farks,

It would be helpful to see that letter you received, personal info redacted if you can.

The position hasn't really changed since your complaint to the FOS although since that time you may have gathered that a County Court ruled in favour of the debtor with regards to MBFS trying to claim for excess mileage charges.

As you are in Scotland, I am not familiar with Scottish claims but there are similar rules I believe in relation to small claims cases. You might want to familiarise yourself with the information on the Scottish Courts and Tribunals website so you at least have an awareness (click here).

The sum itself is not a great amount and so the question is whether you wish to continue denying that the excess mileage is owed or to pay up the amount they are seeking. If the former, then I would recommend that you starting saving that amount ready to pay immediately so you are not left in any difficulties with regards to adverse entries on your credit file.

I have updated some response letters in the templates section particularly for excess mileage charges (click here). That letter is essentially the outline of your argument as to why excess mileage charges are not recoverable. It's a one-size-fits-all so you would need to work out what MBFS would be claiming if proceedings were issued.

There is only one thing missing from that letter which I need to update and that is their claim for excess mileage charges is essentially based on economic loss - this type of is loss is a purely financial loss. When it comes to negligence and taking reasonable care, the House of Lords (now the Supreme Court) has already rule on several occasions that economic loss is not recoverable in cases of negligence i.e. failure to take reasonable care unless there is some physical damage attached to it. One of those cases is White v Jones where the following was said (full case decision here):

Let me now seek to bring together these various strands so far as is necessary for the purposes of this case: I am not purporting to give any comprehensive statement of this aspect of the law. The law of England does not impose any general duty of care to avoid negligent misstatements or to avoid causing pure economic loss even if economic damage to the plaintiff was foreseeable.

Now, if my memory is right, a decision like this would be binding on the Scottish courts as it relates to common law negligence. So that quote there is essentially the killer quote if MBFS were trying to argue lack of reasonable care. If they alternatively argued that the excess mileage caused damage to the vehicle then you say prove it, because they would unlikely have any evidence to prove that going over the agreed contractual mileage, it has negligently caused damage beyond reasonable wear and tear.

All in all, the decision is up to you.

[Farks]

Hi Rob,

Thanks for your reply. The money is there ready to pay when and if someone tells me that legally I have to pay the money and not just in the opinion of Mercedes! It really does not make sense that they can get a Debt Collecting Agency to try and recover money which is in a 'grey' area!

Anyway, I attach a copy of the letter I received from the 'Debt Collectors'!

Also, I have a friend, who is in the same position as I am but about a year behind me! Interestingly, he received a letter from the Ombudsman stating that they are now reconsidering their response to Voluntary Termination and excess mileage claims. I attach a copy of that letter too for your information.

I am going to email the Debt Collectors to advise them of the County Court Ruling and the rethink by the Ombudsman!

Keith

[R0b]

That letter seems to be doing the rounds at the moment since people have submitted complaints and evidence the County Court case with Mercedes. It appears the FOS is reviewing that decision and working out how to approach complaints around VT and excess mileage.

Hopefully they will come down in favour of the consumer and put a stop to these finance companies abusing their position and applying markers on credit files unlawfully.