GMAC VT

[HHEPPY]

Hi,

I sent off the template letter from the forum on 17th Feb giving them 2 weeks to arrange the collection of vehicle, by Tuesday of this week heard nothing other than email confirmation they had received my letter of 17th. Rang them up to ask when collection would be, answer was up to 10 working days for Manheim to action the request, but if you want you can ring them on the following number.................................

done that and they came to collect today, I made it clear at the outset of the inspection that I wouldn't be signing the vehicle report, which was duly the case, in fact, he noted down on the report that I wasn't signing it, however, I did sign the proof of delivery note, to confirm that Manheim had in fact taken the vehicle as required, I made it clear with the vehicle inspector that that has no relation to his report and that I am in fact signing it on GMAC's behalf and to cover myself if anything happens to the vehicle between my home and the auction site.

I am just wondering now if I should have actually signed that doc?

there is a section on it for other comments which says " as per vcr" which I take to mean vehicle condition report.

My view on this is that the vehicle was collected as per that report and that is as far as it goes.

I appreciate I am being a little naughty here given that I have exceeded the mileage by some considerable margin, I have in addition paid slightly more than 50% as well.

interestingly, other than the mileage, the only damaged noted on the report was for £42 for scuffed boot interior trim, which is accurate.

I wonder if I will now receive a demand from Shoosmiths for the excess mileage charge?

my understanding is that in exercising the VT clause any other agreements fall away and are in effect null and void, am I correct in my assumption?

I suppose time will tell, but I am more than prepared to stick to my guns on this one.

would appreciate any thoughts or comments you may have.

regards,

Andrew

[enaid]

Re: GMAC VT

[MENTION=71570]R0b[/MENTION] for an opinion

[R0b]

Re: GMAC VT

Hello,

How much have you gone over the contracted mileage? I wouldn't generally sign anything unless your comfortable and always get a copy of it as well before they leave - even if its a photograph.

Likely possible that you will have a demand from GMAC / Shoosmiths for the excess mileage and the scuffs, possibly more damage.

The excess mileage is a contractual clause which imposes additional liability and that is not allowed when you VT, your liability is capped at 50%.

However, some finance companies are trying to circumvent this position by claiming that the excess mileage has put the car in an unreasonable condition, yet they claim damages based on the contractual excess mileage clause and they provide no evidence to prove it.

The whole purpose of using a car is to drive it and that in itself will inevitably add miles to it. Providing you have serviced the car as required and maintained it in accordance with the servicing manual, any of the components are therefore reasonable wear and tear. They would have to prove that you have been negligent in maintaining the car, excess mileage on its own, in my opinion, does not warrant a failure by you of taking reasonable care of the car. I've yet to see any finance company provide evidence that the car is mechanically unsound, other than the standard condition report.

Hope that helps.

[HHEPPY]

Re: GMAC VT

Hi Rob,

thanks for the reply.

I've gone 19,000 over the mileage. When I realised I was going way over I spoke to the dealership that sold me the car, they said " ah no problem, we'll still be able to do something for you"
I went back before Christmas when they rang me to discuss options, and guess what, they couldn't do anything!! and even suggested doing a VT!!

The car has been regularly serviced and even the inspector passed comment that it was in excellent condition, in fact it just had a service in January even though it only needed an oil change!

I signed the Manheim delivery note which confirmed that they were taking the car away, I did this to protect myself in case there were any other damages to the car after they took it away, the inspector firmly assured me that it was for them only and does not go to GMAC, so I will be monitoring this closely in case I have been mislead.

I flatly refused to sign anything else, which he understood and had no issue with (although he did attempt to get me to sign my own copy of the vehicle report, which I thought was a bit sly, I told him that as it was my own copy I did not need to sign it)

I fully expect to get some correspondence from Shoosmiths, which I am quite happy to robustly defend should that be required, after all, I have only exercised my right under the clause in the agreement, which I am fully entitled to do.

I did email a copy of the delivery note to GMAC stating that I had signed this on their behalf to confirm that Manheim had taken the car, and that I did not and would not sign the inspection form as I was not obligated to do so, furthermore, I also stated that the inspector assured me that this was just for the collection of the vehicle and bore no relation to his condition report (I also pointed out to the inspector that GMAC was the official client and I had no real authority to sign on their behalf)

I also took a copious amount of photo's of the car.

I am grateful for your assistance, I will keep this thread updated.

[HHEPPY]

Re: GMAC VT

Hi Rob,

I have now received the expected Shoosmith's letter which is requesting just shy of £2k, £1900 is for the mileage, with the remainder split between damage and a balancing payment on the GAP insurance.

To my knowledge the final payment I made took me slightly over the 50%, so I would suggest to them that the damage and GAP payment be covered by that.


They enclosed a copy of the vehicle report, which I refused to sign (this is noted on the report).

I am minded to simply write back stating that as the agreement was voluntarily terminated under s99 CCA 1974, my liability is limited to 50% of the total amount due and as that has been met then their claim for additional costs falls away as this is what is said under the cca 1974.

The car was in great condition with £42 of damages!! and it had just been serviced, the vehicle inspector even commented on how clean and tidy it was.

Is there any template response or do you feel my wording is sufficient at this stage?

regards,

Andrew

[R0b]

Re: GMAC VT

Hi Rob,

I have now received the expected Shoosmith's letter which is requesting just shy of £2k, £1900 is for the mileage, with the remainder split between damage and a balancing payment on the GAP insurance.

To my knowledge the final payment I made took me slightly over the 50%, so I would suggest to them that the damage and GAP payment be covered by that.


They enclosed a copy of the vehicle report, which I refused to sign (this is noted on the report).

I am minded to simply write back stating that as the agreement was voluntarily terminated under s99 CCA 1974, my liability is limited to 50% of the total amount due and as that has been met then their claim for additional costs falls away as this is what is said under the cca 1974.

The car was in great condition with £42 of damages!! and it had just been serviced, the vehicle inspector even commented on how clean and tidy it was.

Is there any template response or do you feel my wording is sufficient at this stage?

regards,

Andrew

Hi Andrew,

What are your thoughts on the vehicle report, do you disagree with all or some of it? Are you prepared to pay for some damages in full and final settlement or are you not prepared to pay anything?

Some lenders will tie in the GAP insurance with the total amount payable rather than create it as a separate agreement. If this is the case then in my view they cannot claim for the remainder of the GAP as it forms part of the total amount payable and which you are only required to pay 50%.

Do you know if the car has been sold already and if so how much it sold for?

If you are sure on defending the charges altogether including the excess mileage, then a short and polite letter to Shoosmiths would suffice disputing the alleged charges and that having exercised your right to terminate the agreement, the excess mileage charges clause is not enforceable. You may also want to direct them to the section that says "Termination: Your Rights" in the contract and quote or paraphrase it, with emphasis on the last part of the wording "provided you have paid and taken reasonable care of the goods, you will pay nothing more".

You may also want to look like your being reasonable and agree to pay some of the alleged damages e.g. £42 in full and final settlement but still dispute the excess mileage.

Always bear in mind, that the sum of money we are talking about is almost £2,000 and there is a real possibility that GMAC may wish to initiate legal proceedings if they feel it is commercially viable to do so. Therefore if you do insist on defending, perhaps try to build up a little fund just in case (funds permitting) as going to court is not always guaranteed to win, there is always a risk for both sides.

Happy to look at a draft if you post one up before sending.

[HHEPPY]

Re: GMAC VT

Rob, many thanks for the reply, the damage is absolutely acceptable I have no issue, but I have been rather under the impression that these scenarios are cut and dried in that the VT negates any other arrangements, are you saying that might not necessarily be the case?

My thoughts are that my monthly payments made up to March would be sufficient to cover both the damage and the GAP payment and I would point that out in my letter.
In all honesty I'm happy to drag this out for as long as I can and possibly at some stage make a Without Prejudice offer of between £500 and £1000 if that is what it takes

Regards Andrew

[R0b]

Re: GMAC VT

Purely from a legal perspective in terms of contractual and statutory interpretation, the excess mileage clause is void and unenforceable. What lenders may try to do is circumvent that restriction and argue that due to going over the agreed mileage limit, the car is there in an unreasonable condition which falls under S.100(4) of the CCA - failure to take reasonable care. They will then use the same calculation under the excess mileage clause e.g. 6p per mile as the assessment of damages.

Clearly when you look at this at face value, such a claim would be an abuse as it is simply a dressed up excess mileage charge. For lenders to claim under S.100(4) they need to provide evidence (hence the condition report) that the car was returned in an unreasonable condition. You are only liable for any damage whilst in your possession (or if an accident occurred, to have it repaired). The problem for lenders, is that they need to prove that the damage happened whilst you had the car and the condition report does not prove this, unless the car is brand new. A case, Brady v St Margaret's Trust suggested that hirers only need to do what is needed by reasonable person standards and lenders should provide a condition report pre-possession and post-possession which shows how far a hirer defaulted under the agreement.

In terms of arguing unreasonableness arising from excess mileage, the car would have to be mechanically unsound and that would require an expert's report to confirm that, which lenders do not seek presumably due to cost and simply carry out a condition report of the exterior and interior. Equally, the whole purpose of the car is to drive it which will inevitably rack up miles, but does not mean to say that because the mileage is over the contractual limit, that it is not in a reasonable condition. Taking a driving instructor's car as an example, they will clock up plenty of mileage in a very short period of time but at the same time they will have the car serviced and repaired in accordance with the servicing manual so the car will always be in a reasonable condition despite the high mileage.

As a starting point, the law therefore appears to be in your favour. The other problem you have is that county court judges are a lottery and despite having a solid and robust argument, the judge on the day may not be the best. He/she may have a bias against litigants, will disrupt your arguments, disregard any valid points, not explain their decisions, lack of time etc. which means you may have to appeal to get the right decision ultimately costing more money to you (£120 I believe). You also have the fact that court can be stressful with deadlines to meet and they can come round very quickly so you have to be on top of things.

Excess mileage charges are a bit of a grey area at the moment because there is no binding authority which as settled this matter in full given the various arguments that could be put forward. Yes, the VT provision in the CCA was intended to protect hirers and should be cut and dry, but since there is no binding case law, county court judges are free to make their own decisions, rightly or wrongly.

Clearly, I am not the only person who thinks excess mileage charges are not enforceable, I recently came across this solicitors website with the same view as me (under "Terminating a hire purchase agreement") https://www.stephensons.co.uk/site/i...se_agreements/

It is important to note that you do not need to pay any excess mileage charges a creditor requests in order to voluntarily terminate the agreement.

[HHEPPY]

Re: GMAC VT

Thanks for the further reply Rob,

This is how I interpreted the act when I read it, that at the 50% point it could be handed back with no further liability, but that s.100 was a little ambiguous in that it just mentions reasonable condition, which to me suggests the physical integrity of the vehicle rather than anything else, the lender's attempt to circumvent this I feel would be seen as an abuse of the statutory interpretation. I am very much inclined to agree that a county court judge can be a little unreliable, in my experiences I have found that any difficult decisions they tend to defer as they would not want to be seen to be making a decision which could have further implications, especially as you say there is little case law to back this up, they wouldn't necessarily want to go providing that case law for others to follow, that said, if you can make your case as watertight as possible, then there can be little room for manoeuvre and if it is a legal point that the mileage clause is void and unenforceable then that must be laboured in order to make the point.

As I only received the letter on Wednesday (and it is dated 20th March) giving 14 days for payment or reasonable payment proposals, I will not be submitting my letter to them much before next Friday.

In addition, I note that the letter refers to the following "You have already received a detailed letter from our client regarding your liability on termination" I have not received this at all!

I have applied to GMAC on 2 other occasions with regard VT and had a letter back, but when I actually did VT I received nothing, I had to hound and chase via email to even receive an acknowledgement of my VT, so I will include this in my letter asking them to provide this before I actually do anything at all, this will therefore lengthen the process further.

I am prepared therefore to stick to my guns on this, only resorting to a without prejudice offer if I have nowhere to turn.

I do have a couple of very good Solicitor friends who I am sure would provide any advice, I have worked with one on several county court claims the company I worked for made, so I do understand how the system works (to a degree)

regards

Andrew

[HHEPPY]

Re: GMAC VT

Just by way of a further update, I replied to the initial letter, shortly after which I received another letter saying that they had tried to contact me by phone, but no joy, and they were keen to settle matters as soon as possible, this to me looked like a standard letter they issue if they've not had a response, well they said upto 14 days in their first letter to receive payment, this was still within the 14 day period.

I then received a response to my initial letter complete with the response they claim GMAC made to my VT request, when I checked, this letter was dated Feb 2016 and related to an enquiry I made at the time so I could get an indication of cost, I have therefore responded to this, pointing out that the letter in fact relates to 2016 and not 2017, I have also requested that they provide the information relevant to 2017 before the matter can be concluded, in addition, I pointed out that I had to chase GMAC for an acknowledgement of my VT request and that I also had to do the job of booking the Manheim inspection myself as no one at GMAC seemed capable of doing so.

To date I am still yet to receive the letter from GMAC that they are relying upon to claim the amount from me which Shoosmiths have requested / demanded and until I do I will not be making any payment.

Further to this I have consulted a professional contact of mine who works in debt recovery, he did confirm that this is a grey area in so far as there is no case history for lenders to rely upon to claim anything back from you under a VT, he did say that as devil's advocate they would argue that the asset (vehicle) had not been taken care of and that the additional amount was due, but this is by no means certain (or cut and dried)

As I have said earlier, if push comes to shove I am looking to make a without prejudice offer if need be.

I was wondering if GMAC have breached their responsibilities under the CCA 1974 by not writing to me? My VT request was on 17th February 2017 and to date I have not received any formal response in writing, only an email to confirm that they did receive my letter. Wonder if that is a point I could labour?

regards, Andrew

[R0b]

Re: GMAC VT

HI Andrew,

Thanks for the update, your friend is right in what could be argued by GMAC however as with any claim for damages through court, the party claiming damages would need to provide evidence that it has suffered loss, if it can't then there will be no award for damages or at the very least, nominal damages. The Brady case I mentioned in a prior post suggests it is up to the lender to show how it has suffered loss and needs to show the condition of the car prior to you taking possession and also post termination - that will show how far you have defaulted. In the case of any mechanical damage particularly the engine, that ought to be reserved for an expert's opinion.

As for the lack of response from GMAC that is an argument for unreasonable conduct if the matter went to court and certainly something the court would take into account when awarding any costs/damages. But I am assuming it won't go to court since you intend to make an offer if need be.

[HHEPPY]

Re: GMAC VT

Hi Rob,

Thanks for the reply, yes, I doubt it will go that far to be honest.

Interestingly I finally received correspondence from GMAC at the weekend, however, I expected it to be a letter setting out that I had VT'd and what they considered I owed in relation to that, however, the letter is more like a standard one stating that I am coming to the end of the agreement and setting out my options. On the back of one of the pages it goes on to detail the amounts I have made in monthly repayments, then the balance which would be needed to settle the agreement, which looks like the 50% figure from the agreement, then there is a credit off that amount leaving a balance they claim is payable.

Now I am confused, as I thought that under the VT they cannot do this, to me it looks like they have sold the car at auction for an amount (suspiciously similar to the amount due under excess mileage!!) and are now seeking to claim the balance from me even though I VT'd.

My thoughts are to now write back to them (or Shoosmiths) asking them to clarify just what exactly they are claiming I owe and the grounds for it.

They appear to be contradicting each other which to me is a crazy situation, with the right arm not knowing what the left arm is doing.

I'd appreciate your thoughts.

regards, Andrew

[R0b]

Re: GMAC VT

Hi Andrew,

If you are able to upload the document with your personal information removed I might be able to answer what the letter means. I could be just the fact that if you are close to the end of your agreement their system might have automatically produced it, but if you are not then I am not sure what to say without being able to see it.

[HHEPPY]

Re: GMAC VT

Rob,

Having re-read it it is just an account statement dated 13/4/2017, my VT letter went in 17/2/2017 so I am not sure why they are writing to me as if it is all still in force. It goes on to list options, such as early settlement, and termination rights under section 99 CCA 1974!
When I phoned them up to chase about the VT and to arrange for the inspection I was informed by their representative that they cancel the direct debit, so no future payments would be taken, however, this latter states that a payment was taken 17/3/2017, so they did not cancel the d/d as they informed me.
In addition, they have still failed to write to me in relation to the VT setting out all the details, I previously enquired about this in Feb 2016 and received a letter which detailed the amount needed to VT and how the had calculated the figure too.

They have to date failed to

Acknowledge in writing my request to formally VT
Acknowledge my requests via Shoosmiths to write to me detailing as they did in the 2016 letter.

It is now 25th April, the request was put to them in a letter via royal mail and email on 17th Feb.

I feel that I need to write back to Shoosmiths stating these facts and also pointing out that I consider this unreasonable action and will report them to the FCA or relevant regulator.

What are your thoughts? Obviously all of this adds delay into the equation, which again, I am not worried about.

regards, Andrew

[HHEPPY]

Re: GMAC VT

Bob,

I have attached the recent letter GMAC sent to me, it makes no reference to the VT and seems to indicate they are seeking a closing balance relating to a shortfall in the finance element only rather than as Shoosmith's initially indicated for excess mileage and damage.

This is very confusing as it appears left arm doesn't know what right arm is doing.

My other thought it to write back to GMAC and Shoosmith's with reference to this letter and ask GMAC to formally confirm the VT as they have failed to do so thus far in writing and request that they finally put the matter straight and confirm what they are demanding as the correspondence to date has been confusing to say the very least!

what are your thoughts?

regards,