Ford Credit/Asset Link Capital Voluntary Termination.

[Booker]

Hi,

I have followed a few of the posts on this forum, in helping me to fight the excess charges that I have been given after I decided to VT on my previous car.

I used the template from this site to voluntary terminate and Ford Credit have now decided that they will assign Asset Link Capital to recover the outstanding balance of £524.12

I have called and spoke to Ford Credit, who basically no longer wish to communicate with myself after continually reminding them of S.99 and the consumer act - as well as other avenues taken from these forums (Brady V Margaret's Trust, etc.)

However, after calling Ford today and advising them that they have placed a marker on my credit file after I had VT'd stating that I had defaulted a payment as this is an alleged debt and in breach of my data protection, I am unsure of how to now move forward, they seem to have washed their hands with it all and will let Link Capital chase me for the balance.

Just really unsure how to move ahead now - I don't want my credit score to be affected or bailiffs turning up at my front door.:tinysmile_cry_t:

Any ideas?

(I'm able to get some free legal advice with my union membership so will update once I've spoken to them.)

[R0b]

Re: Ford Credit/Asset Link Capital Voluntary Termination.

Hello @Booker,

The breach of data protection is section 4(4) of the DPA 1998, more specifically Prinicple 4 of Schedule 2 which is a failure to keep data up to date and accurate.

If Ford have already assigned the debt to Asset Link Capital, then they must remove the default marker as they are no longer the legal creditor and are continuously in breach of the DPA for that reason too.

I've referenced a few things below which you may want to look at that supports your reason why you do not owe the excess mileage.

1. The Consumer Credit (Agreements) Regulations 2010
This legislation sets out what should be included in HP/Conditional sale agreements. Paragraph 30 of Schedule 1 (LINK HERE) says that a statement must explain your rights under section 99 on terminating and and your maximum liability under section 100.

Paragraph 9 of Schedule 2 (LINK HERE) provides a mandatory statement that must be inserted into the agreement, that is your maximum liability under section 100: paying 50% of the monthly instalments and taking reasonable care of the goods.

2. Any terms in the agreement which contradicts the above is void and unenforceable
Section 173 of the CCA (LINK HERE) says in a roundabout way, that if any contractual term conflicts with your rights and liabilities set out under the CCA then they cannot be enforced.

3. Other reasons why they are in breach

- The excess mileage does not form part of the credit supplied under the contract and therefore they have no legal right to apply a default on your credit file. It should be the jurisdiction of the court to determine if the debt is enforceable and Ford are therefore abusing their powers by reporting a default and in effect coercing/causing duress to obtain a payment.

- In connection with the above, the Information Commissioners Office provided guidance in 2007 on reporting defaults (LINK HERE). If you flick through to page 16 of the document at paragraph 43, it clearly states that where there is a genuine dispute which is unresolved then the ICO considers that reporting a default is likely to amount to unfair processing of personal data. They have also added to this guidance in 2014, by setting out principles which lenders should adhere to and ensure compliance (LINK HERE). Pages 6-7 set out when a default might be recorded but if you look at the top of page 7, the ICO explains when a default should not be filed. In particular, it says defaults should not be filed when the amount relates solely to fees and charges. As the excess mileage is solely charges post termination, they should not be filing a default and again likely to be in breach of the DPA.

- The statement above in Point 1 above which limits your liability conflicts with the excess mileage clause in the agreement. In law we call that contra proferentum, which in basic English means that the clauses are interpreted against the person who drafted the terms of the contract. So the courts will generally choose the clause that favours you the most and in this case it would be the clause which limits your liability to 50% and taking reasonable care of the goods.

What you choose to do is entirely up to you but there may be only two ways to go about it. You could contact the ICO first and see if they will review your case and order Ford to amend the details accordingly. Or alternatively you can bring legal proceedings against Ford for breach of data protection based on the above reasons and claim damages. The amounts awarded for breach of the DPA in previous cases have varied but in Halliday v Creation Consumer Finance Ltd the court awarded £750 which it felt was modest and a fair award for a single transaction of reporting a default on the claimant's credit file when they had no legal right to do so.

You may wish to refer your union to the above points but unless they have an expert, they may not be much assistance.