Car repossession/Excess mileage advice (First time poster)

[M3Cutter]

Hi all (first post on this forum):

I won't bore you too much with the back story, however several years ago, I suffered a catastrophic loss of income, with an organisation providing me with work suddenly going under, leaving me with no income, and £5k of unpaid wages. From that point, admittedly, I had to try and keep my family and my house afloat, and to cut a long story short, lived off CC's in the hope my fortunes would improve, and I could start repaying the debts back. In the meantime, my car, which I loved was just far too expensive to run, so I made the decision to VT the agreement (it had four months left on the 4 year term).

My fortunes did improve in part, but on a much lower salary, which I didn't mind as I was at least bringing something into the house, however during the process of getting back on my feet, BMW Finance (or more accurately their provider), pursued me for what was (granted) substantial excess mileage. I was under the impression from weeks of research, visiting this site many times, that under a VT, I wouldn't be liable for the excess mileage if I'd paid over half of the cars' value. Nonetheless, they persisted, and I've ended up with a charging order on my house courtesy of Lester Aldridge Solicitors for the amount of the excess mileage.

To make a bad situation worse, I thought "dust yourself down and try again", so I went for another car, cheaper to run, appropriate payments, and I was happy with that. Ironically, the finance turned out to be provided by the same company.

Now I'm not going to cry victim here, not least because I could kick myself for becoming the biggest ostrich known to man, so due to quite a number of financial pressures, and the quite aggressive pursuit of excess mileage, I became a little low...well actually it was probably much worse than that, but I'm not usually a talker, which makes this post even more unusual for me.

Anyhoo, unbeknown to me, the DD for the car which had been set up by the dealer, hadn't been authorised, and my payments hadn't been coming out. I received further correspondence from Lester Aldridge, which I expected to be about the first car, but it was about the latter car. Again please don't think I'm avoiding a sense of agency in things getting to that stage, I feel a complete idiot.

I contacted the finance company, and spoke to a smarmy lad. I explained the situation, apologised profusely, and said "Although I can't pay the arrears off in full, I can make an arrangement to pay them off in instalments". His reply was instant "We need the outstanding arrears paying in full by the end of the month (2 weeks away)". I said I couldn't do that, and he said "Well that's your only option", to which I replied "I'll have to see what I can do", which was responded to with "Ok then, my names Andy, and you have a nice day now" mockingly.

I had actually managed to get two payments together of the three missed, but before I had the chance to pay them in, there was a knock on the door in the pitch black, and a bloke was there, with truck, saying he was repossessing the car. I gave him the keys because I thought I had no other choice, and he took it off the drive.

It was the most humiliating experience I've ever had, and I'm still hurting like hell over it. I've never ever been in this situation before, and the impact has been frankly devastating. Nevertheless, I phoned the finance company up and again offered to pay the arrears off in instalments to get the car back. The woman on the other end of the phone was verging on aggressive, condescending, and downright rude, literally shouting me down when I was trying to explain my situation, saying "If you pay for the car in full, you can have it back".

I was on public transport for a while, then got another car with my wife's help, and that was that, until yet another letter arrived from Lester Aldridge asking for £11,000 for the outstanding finance on the car (the car's total value was £23k when I bought it 3 months previously.

So I guess there are two questions in one post really:

1) What can I do about the excess mileage issue, if anything? Have I got any rights at all?
2) Can they refuse to accept an offer of arrears payment without consideration, and at any stage of the agreement?

I do have some supplementary questions actually:

1) I tried to find out how much my cars were sold for. I phoned BCA Auctions up and they refused to tell me how much the first car was sold for because "It's company policy not to give that information out". Is that standard? Is there any other way to find out?

2) I couldn't find any details of where the other car was sold-again, is there any way of finding this out?

3) What exactly am I liable for if a car is repossessed?

Well I guess that was a little longer than I expected, so apologies for that, but if you've managed to sift through the post, any advice would be greatly appreciated. I've kind of recognised that I don't need to, and can't really do this on my own.

Many thanks everyone.

[R0b]

Re: Car repossession/Excess mileage advice (First time poster)

Hello,

Sorry to hear about your issues, and I must admit you are in a pretty difficult situation which may not be recoverable.

As for your current situation and answers to your questions:

What can I do about the excess mileage issue, if anything? Have I got any rights at all?

If you are talking about the excess mileage on your first car, I would say there is a real probability that nothing can be done. You've not said whether you defended the claim or ignored it. If you ignored it then there is a high risk that any appeal or set aside would not be granted given the lapse of time. Equally if you defended it, why did the judge not find in your favour can you remember the reasons? Either way you didn't appeal it so you would have no recourse.

Can they refuse to accept an offer of arrears payment without consideration, and at any stage of the agreement?

Strictly speaking, no. Lenders must treat customers fairly and be considerate where those who are struggling with debts. If they refused the two payments because you couldn't find the first then that could potentially be a breach of the FCA Rules under CONC. A breach of a Rule (and not Guidance) is a statutory breach which may give rise to a court making an appropriate order. The problem of burying your head in the sand does not help your situation though. The discretion of any remedy or order will be up to the court.

I tried to find out how much my cars were sold for. I phoned BCA Auctions up and they refused to tell me how much the first car was sold for because "It's company policy not to give that information out". Is that standard? Is there any other way to find out?

BCA wouldn't be legally required to give that information without a court order however you should be able to obtain that from Lester Aldridge / BMW.

I couldn't find any details of where the other car was sold-again, is there any way of finding this out?

The website might show previous sales and after a quick scan it does show previous sales for classic cars but you might need to register to find out if this information is publicly available.

What exactly am I liable for if a car is repossessed?

The normal measure of damages in a breach of contract case for HP is the total amount payable under the agreement LESS (taken from the case Yeoman Credit v Waragowski 1961):

(a) the proceeds of sale from the vehicle;
(b) the sums already paid to date;
(c) the amount (if any) payable on exercise of the option to purchase i.e. the balloon payment at the end; and
(d) any discount on the return of the vehicle early in relation to the lender's outlay.

It is also argued that the lender is under a duty to mitigate its loss of a repossessed car by obtaining the best possible price - is selling the car at auction obtaining the best possible price? It is arguable since there is a few cases out there suggesting this including a couple of House of Lords cases. In one case in particular the court ordered a discount of 8-9% for early payment. Equally there is some weight where the lender in a brash way exercises their right to repossess. In another Court of Appeal case one of the judges said the following:

In some cases, however, it is, as Salter J. suggested, seizure rather than failure to pay which has caused the damage. Where the hirer is slightly in arrears and does not show that he is not going on with the contract, the seizure of the hired article may not be the reasonable solution of the situation, and it may well be that damage consequent on and flowing from it was not caused by the hirer's breach, but by the owner's decision to exercise his right to retake possession.

As you can see, all of the above presents a difficult situation where on the one hand there could be a number of potential defences available but on the other, you are effectively leaving it in the court's hand to decide whether or not the lender has acted in an extreme or harsh manner.

I do have a question however, did you pay 1/3 of the price before they repossessed?

[M3Cutter]

Re: Car repossession/Excess mileage advice (First time poster)

Hi R0b, and thank you so much for the detailed reply-I really apologise for it taking so long to reply.

In answer to your question, no, I hadn't actually paid any payments on the car at all as I'd only just bought the car, and had completed the DD mandate on collection of the vehicle, expecting that to be that. I had no idea whatsoever that they weren't being paid, and when I contacted them, I explained this.

I have a couple of further questions however: Is a repossession guy allowed to knock you up at 7am in the morning?, and as the repossession guy didn't appraise me of my rights regarding the car, simply telling me that I had to hand over the keys before he took it off the drive, is that within their right? (I only ask this, as I seem to think that you should be aware of your rights before a car is repossessed, shouldn't be made to feel bullied into handing the keys over, and also that they should visit the property at a reasonable hour?

I might be on a hit and hope atm, but whilst I completely accept my responsibility in this saga getting to the point it has, I still feel badly let down by how I've been treated.

Many thanks