Voluntary Termination - Black Horse

[Calimac]

Hi,

Ive never posted on a forum before so please excuse me if I'e done anything wrong.

I currently have an Mercedes A Class which i got from a Mercedes dealership and is financed with Black Horse, talking round figures the overall finance agreement was 22k, i have paid off 12k and they have told me over the phone there is no problem with VT'ing. I requested the pack to be sent last Wednesday and it still hasn't come even though my change off address letter which was dealt with in the same call has came (but that's a different subject and i expected them to drag out the process from reading all the other posts on here so i have given them another chase today).

The car is in good condition and i took out body work and alloy wheel policies which i will take advantage of prior to sending back. but here's how my situation differs to anyone elses i have found on here....

It was a 4 year PCP on 15k miles per year, i am 3 years in and have done 58k miles, so i have done my maximum allowance for the 4 years in 3, and by the time it has been taken away from me it will have probably breached 60k.

So where do i stand on this? ill probably go through the process in accordance with this post... http://www.legalbeagles.info/forums/...ment-*UPDATED*

but would i need to go about anything differently? or do i just have to pay something?

appreciate any advice

thanks

NOTE: Reason for VT is being offered a company car

[R0b]

Re: Voluntary Termination - Black Horse

You situation is more common than you think but the principle remains the same.

You have two choices, either pay up or defend it but if opting for the latter, be prepared to fight it and/or defend any issue of court proceedings. If that worries you, then I would suggest you up now.

Liability is limited to 50% of the total amount payable unless the car is returned in an unreasonable condition. Provided you have serviced the car regularly, had it repaired as and when is needed, has a current MOT certificate then I can't see how Black Horse would have any leg to stand on in recovering the excess mileage charges.

I would suggest you take pictures of the car both inside and out and also copies of the service book with any receipts/invoices for repairs as this will be evidence that you have taken reasonable steps to ensure the car is looked after.

As for photos, you may want to use an app on your phone which puts a time stamp on there which although is not necessary, can add to your evidence without raising questions of authenticity (and which can be proved by other methods).

iPhone I would recommend TimeStampIt and for android phones you could use Camera Timestamp Free or Open Camera.

[Calimac]

Re: Voluntary Termination - Black Horse

Thanks, I've done a lot of reading on here and read a fair few posts from you too, seems like your the man to talk to!

I'm yet to receive the 'pack' so i dont know what it contains, I'm assuming it will have a form to fill in am i better of sending a letter? as from what i can tell there is a difference in liability if its done in a particular way?

Also, im curious to find out if it will be the circa 2k excess millage or will be calculated to the end of the agreement so 22k??

[R0b]

Re: Voluntary Termination - Black Horse

You don't need to receive a pack from them nor do you need to sign anything. The obligation is on you to give them notice to terminate the agreement not the other way around, but notice should be given in writing and that can be letter or email. If letter, just make sure to obtain and keep a proof of postage receipt.

The likelihood is that the letter will contain wording to the effect that says you agree to pay for any damages and excess mileage following termination of the agreement.

It is also probable that the excess mileage is calculated pro-rata and that should be written in your agreement somewhere, its a common term of the contract.

[Calimac]

Re: Voluntary Termination - Black Horse

Thanks,

so i am liable for the excess mileage and i should pay?

[R0b]

Re: Voluntary Termination - Black Horse

The answer is subjective depending on what side of the fence you are on. My opinion is no, yet lenders will say yes.

There is no case law which directly addresses this question. Legal practitioner books suggest that contractually lenders cannot reclaim it because debtor liability is capped at 50%. Lenders would however then argue the excess mileage has put the car in an unreasonable condition and calculate their damages based on the contractual term using the pence per mile charge (despite the excess mileage clause not being enforceable).

There is a case which gives some small guidance on the conditions of the car and the debtor's obligations. This is set out in a Court of Appeal case, Brady v St Margaret's trust below:

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 would also refer you to the link you mentioned in your first post and read the section about the law relating to voluntary termination to get a basic understanding of where I am coming from.

From my personal experience, there has been no court case to date (which I am aware of) which a lender has successfully claimed excess mileage when a debtor has VT'd the agreement. The onus is on the lender to prove its claim which would require an expert to prove the mechanical soundness of the car and evidence in accordance with the quote above. Provided that all of your ducks are in order, lenders would struggle to win such a case.

[Calimac]

Re: Voluntary Termination - Black Horse

Ok thanks!

Ill see how i get on and get back on here should i have any issues.

[Calimac]

Re: Voluntary Termination - Black Horse

Thats the 'pack' they have sent, what do you think? seems there is a lot of signatures!

[R0b]

Re: Voluntary Termination - Black Horse

There's no obligation to sign any documentation and I wouldn't suggest you do so but if you do I would say that you need to consider very carefully the wording of the document as it generally ensures that you agree to pay additional charges.

Also page 2 where mentions credit file and saying that you have underpaid so they will apply a default, that is unlawful and I would suggest you check your credit file. It is an indefeasible right to terminate the agreement at any time and the way that is written suggests they are penalising you for not paying 50% before you terminated. If they do that I think you would have solid ground to bring a claim for breach of data protection and claim damages.

Is the £95 outstanding or have you already paid 50% of the total price?

[Calimac]

Re: Voluntary Termination - Black Horse

Total amount payable - £22,290.08
Requested a settlement figure on 28.04.17 of outstanding balance 11,807 less rebate = 11,131, and there's been another payment.

Also I've never missed a payment

[R0b]

Re: Voluntary Termination - Black Horse

Early settlement is not the same as VT.

On your agreement there will be a box which says Termination: Your Rights and the figure in there is what you have to meet. It can be easily worked out by adding up all the monthly instalments plus any deposit paid.

[Calimac]

Re: Voluntary Termination - Black Horse

£11,395.04 is under termination: my rights

[R0b]

Re: Voluntary Termination - Black Horse

So if you have paid that then? Barclays are implying by that letter that you are £95 short so you need to work out if you are short or not.

If you are short then I suggest you pay that as soon as possible otherwise they will be entitled to default you. The letter is dated 5 May and they have given 30 days to pay it before it will be sold to a debt purchaser.

[Calimac]

Re: Voluntary Termination - Black Horse

spoke to them this morning and explained i only phoned to find out what my options were, she explained that the £95.28 is the remainder of the first half (even though during the phonecall about the pack i was told i was fine), but i said that i do not wish to terminate the contract, to which she confirmed that none of that letter will happen and my agreement will continue as usual.

So now Im going to spend the rest of the month getting the car in a decent shape to send back and send them a letter of termination after next months payment (317.20) so will have paid over half.

or are you saying i should sign this now and send back as i will have a good argument against them?

[R0b]

Re: Voluntary Termination - Black Horse

Its up to you really but I would question, if you only owe £95.28 to bring the account up to 50% of the total price payable, why would you make a further payment of £317.20 when at the very least you could send a cheque for £95.28 and use the remaining funds from that instalment to touch up any areas of the car that you feel would be necessary.

The easiest way to know how much you have paid is to add up all the monthly instalments e.g. £317.20 x number of months paid plus any deposit you have put down. If that amount matches or exceeds the amount stated in the Termination: Your Rights box, then you will have met amount needed.

Of course if your happy to pay £317.20 and then some more that's entirely your prerogative as its your money but it would seem a bit silly to do so. I think you really need to get to the bottom of it and confirm what the £95.28 is actually for. Saying that it is for 'the first half' makes absolutely no sense at all although I think I understand what the advisor said, I think for the avoidance of any doubt you need to clarify that before taking any further steps.