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  1. #51
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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    All, happy new year!

    Time for an update - had a call from my case officer at the ICO today. They were calling to inform me that despite the further evidence I've sent, their view still remains the same. They believe that (and I quote)...

    "The information that BMW Financial Services have submitted about you to CRAs is not a breach of the Data Protection Act, as they have not issued an actual default notice"

    Essentially, this whole situation hangs on the default notice point. The 2016 SCOR guidance for the Data Protection Act mentions terms under which a default notice should not be issued, but nothing about when a missed/late payment entry on an account should not be issued. To cut a long story short, the ICO are saying they can do nothing because BMW Financial Services have not issued an actual default - BMW Financial Services are quite clearly aware of this, and as such, are continuing to add missed/late payment entries instead in order to make sure they do not breach the Data Protection Act, thus allowing them to continue their attempts to bully me into paying them. It's clever, I'll give them that, but extremely deceitful.
    This theory is further backed up by screenshots sent to me by a couple of you watching/following my thread, whereby BMW Financial Services are behaving in exactly the same way - refusing to issue an actual default notice, but continuing to add entry after entry after entry for missed/late payments.

    I asked my case officer the following question on the phone...
    "In the event that BMW Financial Services had issued a default notice on my account for the amount that's solely made up of fees/charges, what would the ICO do?"

    They answered by saying...
    "The ICO would instruct BMW Financial Services to remove/revoke the default notice they had submitted, as it would qualify as ingenuine."

    I explained that their answer itself clearly illustrates how BMW Financial Services are 'abusing' the system in order to use CRAs as leverage when chasing people for payments that they have no legal proof are due. My case officer had to take a pause for a while to process this quite valid argument. All they did was repeat their original statement, explaining that there was nothing the ICO could do, since BMW Financial Services have not issued an actual default notice. I attempted to step away from the technicalities surrounding the default, and approach things from another angle; bottom line, BMW Financial Services are submitting information about me into the public domain (via CRAs) that is causing harm to me as an individual, and not proven to be true. They said, despite this potentially being the case, this does not constitute a breach of the Data Protection Act. I asked them to explain this statement - they could not. They advised that my only next course of action in this scenario would be to take BMW Financial Services to court.

    I have asked my case officer at the ICO to keep my case open, and send me a detailed summary of their findings in writing, including the following:
    - A clear definition of when a default notice SHOULD be filed, and what processes/systems are in place to deal with lenders who are refusing to file default notices when they should be
    - A clear summary of the ICO's findings, and how exactly they believe that BMW Financial Services are acting in accordance with the Data Protection Act
    - Confirmation of what the ICO would normally do in the event of them finding that a default notice had been incorrectly/unduly submitted to CRAs

    I'm absolutely shocked and appalled by all of this. I cannot believe that the ICO are claiming there's nothing they can do, despite how blatantly BMW Financial Services are playing the system.

    R0b - any advice at this point would be much appreciated.

  2. #52
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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    So the long and short of it is BMW will continue to place a missed payment on your file until you start paying because they also know what they can and can't do in terms of the law and seem to have us over a barrel.

    When I opened the zip file containing my documents 3 of the agreements were missing including the one relating to the VT so I've gone back twice now and asked again and they haven't sent them, they sent some other documents that is not the signed document that states what the mileage was so I'll need to go back to them again.

    I'm also still being hounded by a debt collection agency called Debt Managers, has anyone else been chased?

  3. #53
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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    Quote Originally Posted by KurtCrisco View Post
    All, happy new year!

    Time for an update - had a call from my case officer at the ICO today. They were calling to inform me that despite the further evidence I've sent, their view still remains the same. They believe that (and I quote)...

    "The information that BMW Financial Services have submitted about you to CRAs is not a breach of the Data Protection Act, as they have not issued an actual default notice"

    Essentially, this whole situation hangs on the default notice point. The 2016 SCOR guidance for the Data Protection Act mentions terms under which a default notice should not be issued, but nothing about when a missed/late payment entry on an account should not be issued. To cut a long story short, the ICO are saying they can do nothing because BMW Financial Services have not issued an actual default - BMW Financial Services are quite clearly aware of this, and as such, are continuing to add missed/late payment entries instead in order to make sure they do not breach the Data Protection Act, thus allowing them to continue their attempts to bully me into paying them. It's clever, I'll give them that, but extremely deceitful.
    This theory is further backed up by screenshots sent to me by a couple of you watching/following my thread, whereby BMW Financial Services are behaving in exactly the same way - refusing to issue an actual default notice, but continuing to add entry after entry after entry for missed/late payments.

    I asked my case officer the following question on the phone...
    "In the event that BMW Financial Services had issued a default notice on my account for the amount that's solely made up of fees/charges, what would the ICO do?"

    They answered by saying...
    "The ICO would instruct BMW Financial Services to remove/revoke the default notice they had submitted, as it would qualify as ingenuine."

    I explained that their answer itself clearly illustrates how BMW Financial Services are 'abusing' the system in order to use CRAs as leverage when chasing people for payments that they have no legal proof are due. My case officer had to take a pause for a while to process this quite valid argument. All they did was repeat their original statement, explaining that there was nothing the ICO could do, since BMW Financial Services have not issued an actual default notice. I attempted to step away from the technicalities surrounding the default, and approach things from another angle; bottom line, BMW Financial Services are submitting information about me into the public domain (via CRAs) that is causing harm to me as an individual, and not proven to be true. They said, despite this potentially being the case, this does not constitute a breach of the Data Protection Act. I asked them to explain this statement - they could not. They advised that my only next course of action in this scenario would be to take BMW Financial Services to court.

    I have asked my case officer at the ICO to keep my case open, and send me a detailed summary of their findings in writing, including the following:
    - A clear definition of when a default notice SHOULD be filed, and what processes/systems are in place to deal with lenders who are refusing to file default notices when they should be
    - A clear summary of the ICO's findings, and how exactly they believe that BMW Financial Services are acting in accordance with the Data Protection Act
    - Confirmation of what the ICO would normally do in the event of them finding that a default notice had been incorrectly/unduly submitted to CRAs

    I'm absolutely shocked and appalled by all of this. I cannot believe that the ICO are claiming there's nothing they can do, despite how blatantly BMW Financial Services are playing the system.

    R0b - any advice at this point would be much appreciated.
    Wow is all I have to say about that, great work but a massive shame that they are allowing them to get away with it. It's definetly still a DPA breech as the missed payment has nothing to do with the credit agreement that they are reporting on.

    I suppose the only way to progress this further would be to take BMW to court yourself?

    Because of how small the amount I owe is, I'd be tempted to pay it but frankly there is no benifit for me to do that now. The missed payments will stay regardless.

  4. #54
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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    Quote Originally Posted by Dehaw View Post
    So the long and short of it is BMW will continue to place a missed payment on your file until you start paying because they also know what they can and can't do in terms of the law and seem to have us over a barrel.

    When I opened the zip file containing my documents 3 of the agreements were missing including the one relating to the VT so I've gone back twice now and asked again and they haven't sent them, they sent some other documents that is not the signed document that states what the mileage was so I'll need to go back to them again.

    I'm also still being hounded by a debt collection agency called Debt Managers, has anyone else been chased?
    I haven't been hassled by any debt collection agencies yet, but I'm expecting it soon enough.

    Quote Originally Posted by kreig View Post
    Wow is all I have to say about that, great work but a massive shame that they are allowing them to get away with it. It's definetly still a DPA breech as the missed payment has nothing to do with the credit agreement that they are reporting on.

    I suppose the only way to progress this further would be to take BMW to court yourself?

    Because of how small the amount I owe is, I'd be tempted to pay it but frankly there is no benifit for me to do that now. The missed payments will stay regardless.
    It's astounding, to be honest. It looks as though the only possible next step would be to take BMW Financial Services to court myself, yes, but understandably I'm not happy about the thought of having to do so.

    In your case, you could try and campaign to have the missed/late payment entries removed by BMW Financial Services - send them a "without prejudice" letter (as earlier recommended by R0b), stating that you will offer to pay the outstanding balance on the proviso that BMW Financial Services remove all the missed/late payment entries. You could argue that your position/view/stance has not changed, and that you are in no way admitting liability for any alleged charges, but you are instead making them a conditional offer due to lack of evidence on both sides relating to whether or not the alleged charges are due. They'd be daft not to accept such an offer.

  5. #55
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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    It sounds to me that the only way for anyone to get over this and have a clear credit file without debt collection agencies chasing is to take BMW to court to find out what the final result would be, do you think this is something we could do as a group as I'd be happy to help pay for this at least then if the court finds in favour of BMWFS and explains a good reason why then it would set the precedent and then we can offer to pay the thing off at £10 a week?

    You've done a fantastic job KurtKrisco and by doing so have saved the rest of us the bother as I can't see us getting a different result and this is why BMWFS seem to be somewhat smug with their responses because they know they are acting within the law but making sure we aren't getting away with paying the mileage fees.

    I've yet to receive the actual contract I signed so I'll await that then submit a complaint to BMW direct as the franchise seems to do what they can to get the car sold, like most salespeople but it's causing major problems to people financially.

    Although my fees are £4.4K I'm loathed to give them anything for the mileage for a few different reasons, I'd even go to the point of transferring my rental properties over to someone else or sell them and then declare myself bankrupt, which probably seems overkill but it would not affect me in Australia and in effect would wipe my slate clean as I don't intend on coming back, certainly not in the next 10-20 years anyway.

    That being said all BMW ever recite to me is the CCA section 100/2 saying that they have a right to invoice it where is my argument is CCA section 100/1, I think those are the right sections so we are essentially at a stalemate.

    https://www.legislation.gov.uk/ukpga...39/section/100

  6. #56
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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    Quote Originally Posted by Dehaw View Post
    It sounds to me that the only way for anyone to get over this and have a clear credit file without debt collection agencies chasing is to take BMW to court to find out what the final result would be, do you think this is something we could do as a group as I'd be happy to help pay for this at least then if the court finds in favour of BMWFS and explains a good reason why then it would set the precedent and then we can offer to pay the thing off at £10 a week?

    You've done a fantastic job KurtKrisco and by doing so have saved the rest of us the bother as I can't see us getting a different result and this is why BMWFS seem to be somewhat smug with their responses because they know they are acting within the law but making sure we aren't getting away with paying the mileage fees.

    I've yet to receive the actual contract I signed so I'll await that then submit a complaint to BMW direct as the franchise seems to do what they can to get the car sold, like most salespeople but it's causing major problems to people financially.

    Although my fees are £4.4K I'm loathed to give them anything for the mileage for a few different reasons, I'd even go to the point of transferring my rental properties over to someone else or sell them and then declare myself bankrupt, which probably seems overkill but it would not affect me in Australia and in effect would wipe my slate clean as I don't intend on coming back, certainly not in the next 10-20 years anyway.

    That being said all BMW ever recite to me is the CCA section 100/2 saying that they have a right to invoice it where is my argument is CCA section 100/1, I think those are the right sections so we are essentially at a stalemate.

    https://www.legislation.gov.uk/ukpga...39/section/100
    Thank you for your compliments and support, I appreciate it. You’re probably able to tell by now that my daily/professional life involves regular negotiation with businesses, but never have I encountered an organisation as deceitful as BMW Financial Services. That being said, I’m not going to be backing down any time soon.

    I have a couple more steps I’d like to take before I go down the legal/court route. I’m currently preparing an additional letter to send to my case officer at the ICO. I’d like some official answers surrounding their vague and somewhat contradictory final response to my complaint, and I want their answers in writing, signed. Secondly, I’m actually going to have a crack at speaking with BMW direct themselves. Sounds like a long shot, but before I owned the car for which I am fighting BMW Financial Services, I owned another vehicle from BMW. I had major issues with it and was struggling to get anywhere with my local dealership, or BMW Financial Services. I took my complaint to BMW direct and they jumped on BMW Financial Services from a great height. Before long I had an offer on the table from BMW Financial Services to clear my existing finance agreement completely, coupled with a hefty deposit contribution towards a new/replacement vehicle. I agree, this was partly a sales ploy from BMW direct, however, the point is that BMW direct seem to have a lot of power over BMW Financial Services (understandably). I wonder if they might exercise that power quite swiftly when faced with the threat of my reporting BMW Financial Services’ deceit to the press/media?

    With regards to the group court summons idea, I’m not sure how the legalities of this would work, and whether or not it’d even work in our favour. I’d be interested to hear R0b’s view on this idea.

    Lastly, you mention BMW Financial Services banging on about their right to “invoice” you for excess mileage charges. Do you have an original letter from them using the term “invoice” specifically? If so, this would be extremely important evidentially.

  7. #57
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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    Evening,

    Please do not think I am ignoring you, I've been away for the new year and not long returned. It's disappointing news but will post my thoughts tomorrow once I've had sufficient sleep.
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  8. #58
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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    Quote Originally Posted by KurtCrisco View Post
    Thank you for your compliments and support, I appreciate it. You’re probably able to tell by now that my daily/professional life involves regular negotiation with businesses, but never have I encountered an organisation as deceitful as BMW Financial Services. That being said, I’m not going to be backing down any time soon.

    I have a couple more steps I’d like to take before I go down the legal/court route. I’m currently preparing an additional letter to send to my case officer at the ICO. I’d like some official answers surrounding their vague and somewhat contradictory final response to my complaint, and I want their answers in writing, signed. Secondly, I’m actually going to have a crack at speaking with BMW direct themselves. Sounds like a long shot, but before I owned the car for which I am fighting BMW Financial Services, I owned another vehicle from BMW. I had major issues with it and was struggling to get anywhere with my local dealership, or BMW Financial Services. I took my complaint to BMW direct and they jumped on BMW Financial Services from a great height. Before long I had an offer on the table from BMW Financial Services to clear my existing finance agreement completely, coupled with a hefty deposit contribution towards a new/replacement vehicle. I agree, this was partly a sales ploy from BMW direct, however, the point is that BMW direct seem to have a lot of power over BMW Financial Services (understandably). I wonder if they might exercise that power quite swiftly when faced with the threat of my reporting BMW Financial Services’ deceit to the press/media?
    I think this might be a good idea, of course when I suggested to BMWFS about the dealership they said to me that its a separate matter and would need to take it up with them, we've had 4 cars previous to the last one and all were paid without an issue and to be honest hadn't we been granted our Australian visa I'd still have the car but circumstances change.

    Who did you write to specifically, I think I'd probably get a better response writing to them directly rather than trying to deal with the dealership or the FS side of things and I believe my case is of good standing to have this written off, but that's just opinion.

    Lastly, you mention BMW Financial Services banging on about their right to “invoice” you for excess mileage charges. Do you have an original letter from them using the term “invoice” specifically? If so, this would be extremely important evidentially.
    I have an email from the girl I've been in conversion with that stated these are invoices, I have kept all the emails as I was probing her about why the invoices have been attached to the agreement, which is separate and why on my credit file it says it's VT'd but still showing each month as a payment made, I'd suggested that it should be closed and the invoices dealt with separately.

    Here is what she said:

    Just to clarify, although agreement xxxxxxxx was voluntary terminated and the invoices raised for excess mileage and damage were for this terminated agreement, the excess mileage and damage was accrued/occurred up until the point of termination. We are therefore able to invoice for these under the rules of the Consumer Credit Act. We have correctly reported any unpaid balance on this agreement to the Credit Reference Agencies. As our stance on this isn’t going to change, I would advise you to contact either the BVRLA or the Financial Ombudsman Service who will be able to investigate further on your behalf.
    I'd happily create a letter with all this information to BMW head office to see what they say.
    Last edited by Dehaw; 3rd January 2018 at 22:30:PM. Reason: Removed Agreement number

  9. #59
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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    Quote Originally Posted by KurtCrisco View Post
    I haven't been hassled by any debt collection agencies yet, but I'm expecting it soon enough.



    It's astounding, to be honest. It looks as though the only possible next step would be to take BMW Financial Services to court myself, yes, but understandably I'm not happy about the thought of having to do so.

    In your case, you could try and campaign to have the missed/late payment entries removed by BMW Financial Services - send them a "without prejudice" letter (as earlier recommended by R0b), stating that you will offer to pay the outstanding balance on the proviso that BMW Financial Services remove all the missed/late payment entries. You could argue that your position/view/stance has not changed, and that you are in no way admitting liability for any alleged charges, but you are instead making them a conditional offer due to lack of evidence on both sides relating to whether or not the alleged charges are due. They'd be daft not to accept such an offer.
    Yeh think I might just try that once the ombudsman comes back to me.

    not sure they look at this from a business prospective. My ombudsman claim must of cost them more than I owe so they could of dropped it at that point.

  10. #60
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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    I realise this is Australian Law but could this be the same result for the UK?

    There's a lot of issues with BMWFS too although albeit a separate company the fact is it seems to be the same problems the world over.

    https://books.google.com.au/books?id...ileage&f=false

    So according to this outcome the customer initially won then BMW appealed only to have the appeal upheld?

  11. #61
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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    Morning,

    Having read your post properly @KurtCrisco, it seems as if the case officer is taking a restrictive view, if not literal of the 2016 guidance. We must all remember that the guidance is just that and is not binding in law and it does not cover every intended consequence of unfairly or unlawfully processing someone's personal data.

    I am rather surprised given that the case officer conceded that if BMW had issued a default then it would qualify as unfair processing but refuses to accept that recording sums made up of fees or charges as late or something else is not unfair processing. It seems to me that all roads lead to the same conclusion which is that the recording of outstanding fees or charges is unfair and/or unlawful processing.

    If BMW were to continue recording the charges each month it would eventually lead to a default (8 missed payments is it? or 6?), thus considered unfair. If BMW also record the charges but then start changing the code for so it does not flag up as a default, that is also unfair and an abuse of the system. Equally, if they continue to record the charges as missed consecutively each month but then stop short of 1 month to avoid it being recorded as a default, that also in my mind would be an abuse of the system and also unfair processing.

    Then there is also the argument that recorded the charges as missed payments is inaccurate because the charges do not form any part of the credit agreement and so it is giving the effect that you have missed a number of payments under the agreement, but in fact the agreement was actually terminated some time ago. The whole purpose of having a credit file and the credit reference agencies retaining your information is to allow lenders to make a decision on how likely you are going to be able to make the repayments if they offered you credit. In my view it is inherently wrong to report sums made up solely of fees or charges as it gives the wrong impression to the lender and suggests that you are unlikely to meet your monthly instalments - particularly if you have several months reported as missed under a agreement. The result is that the lender is either going to reject your application for credit or offer you credit but at a much higher interest rate than one might expect if those missed payments were not recorded.

    Going back to the case officer's view, I think he needs to take a pragmatic view of this. If a lender should not be recording a default for fees or charges, then the pragmatic and logical view is that it should also not record fees or charges as missed payments. In terms of your options, I think you've pretty much exhausted all options except for issuing legal proceedings.

    I am not sure if you have a telephone contact for the case officer but perhaps you may want to speak to him again and re-iterate some of the points made here and try to get him to answer your questions or provide an explanation. If he declines to answer or explain some or all of your questions then ask for him to provide his assessment in writing so you have evidence of his decision. At that point you could take it further and perhaps write to Elizabeth Denham who is the Information Commissioner and explain that you feel the assessment made by the case offer (and insert their name if you know) has made a fundamental error which is having a detrimental effect to yourself and perhaps ask for a review by someone more senior who is able to see outside of the four corners of the SCOR document. Of course don't expect to receive a response from her, maybe one of her team or maybe no response at all but you can at least give it a go and see what happens.

    If not, then the last step is legal proceedings. If you do intend to go down this route then it is possible to claim at least £750 compensation based on previous case law but as BMW have refused to remove the recordings from your credit file then it is further aggravated matters and you could seek something a bit higher than that, perhaps up to £1,500 maybe more but it is a bit of a guess and depending on how much your claiming will determine how much you pay for application fees. Anything under £10,000 will likely result in the small claims track which means costs are extremely limited, though there is a possibility BMW may argue for it to be moved to another track where legal costs could be recoverable but I would think this is a very straightforward, non-complex matter which can be decided under the small claims track.

    You ought to be aware that if you do choose to bring a claim, there is a possibility that BMW may counterclaim for the outstanding sums that they think is owed, and which you will need to put in a defence and/or argue that those sums being claim should be offset by the compensation you seek to claim. Always a risk in going to court, and nobody I know has decided to have the balls to take on BMW yet or any other lender in relation to this type of scenario so you are leaving it in the hands of a judge who may or may not agree with you but that is a decision you will need to consider and take yourself in the knowledge of potential risks that may be involved.
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  12. #62
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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    @R0b would you then agree that BMW is in the wrong in the first instance for keeping the credit file open and merely reducing the costs associated with the agreement since the agreement was terminated?

    I argued that the invoices were a different matter from the said agreement and that what's held on the credit file should be a zero balance since the agreement was terminated, although they then scrambled around and sent over screenshots showing that my credit file was showing that the agreement was VT'd but the balance still shows as £4.4K meaning it looks as if I have not paid for the agreement in full but according to the CCA that should be zero and the invoices a separate matter?

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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    Quote Originally Posted by Dehaw View Post
    @R0b would you then agree that BMW is in the wrong in the first instance for keeping the credit file open and merely reducing the costs associated with the agreement since the agreement was terminated?

    I argued that the invoices were a different matter from the said agreement and that what's held on the credit file should be a zero balance since the agreement was terminated, although they then scrambled around and sent over screenshots showing that my credit file was showing that the agreement was VT'd but the balance still shows as £4.4K meaning it looks as if I have not paid for the agreement in full but according to the CCA that should be zero and the invoices a separate matter?
    If they are solely fees or charges then yes, I think that would be an arguable point to make. Like I said, above, a lender determining whether they should offer you credit will get the impression that either the agreement is still alive or that you've failed to make the credit repayments. This is why I can only assume the SCOR guidance says that defaults should not be applied in respect of charges or fees if they do not form part of the credit loaned to you.

    Going back to the 2007 guidance, it makes a specific reference to unresolved disputes and goes on to say that if there is a genuine, reasonable and unresolved dispute then the ICO is likely to find that personal data has been processed unfairly if a default has been filed. It also says that a default reported in that way may also be inadequate for the purpose of credit referencing because it does not provide any meaningful information about the creditworthiness of the customer. This section has been removed in subsequent revisions of the guidance without any understanding as to why but should nonetheless be persuasive as it appears to confirm my views that the data recorded is not accurate and/or misleading and ought to be applicable in circumstances relating to charges or fees.
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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    Quote Originally Posted by R0b View Post
    Morning,


    If BMW were to continue recording the charges each month it would eventually lead to a default (8 missed payments is it? or 6?), thus considered unfair. If BMW also record the charges but then start changing the code for so it does not flag up as a default, that is also unfair and an abuse of the system. Equally, if they continue to record the charges as missed consecutively each month but then stop short of 1 month to avoid it being recorded as a default, that also in my mind would be an abuse of the system and also unfair processing.

    .
    Rob, that is exactly what they do. I am well over 6 and have sent KurtCristo a copy of my credit report so he can see what will happen.

    They just change the code so it never becomes a full default.

  15. #65
    KurtCrisco's Avatar

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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    Thanks for posting R0b, I hope you had a good break over the new year period.

    I completely agree with your comments r.e. the ICO's views. They're contradictory and unclear. I still haven't heard back from my case officer since our phone call the other day (despite my asking them to email me their findings so that I have these in writing), so I've just sent the following today:

    As I have not heard back from you since our telephone conversation the other day with a summary of your views/findings (as I requested), I wanted to send you an email to follow up.

    It is my feeling that you are taking a restrictive, if not literal, view of the 2016 SCOR Guidance in relation to my complaint. It is important to remember that the 2016 SCOR Guidance is titled as such because it is just that: a guide. Therefore, it DOES NOT cover every possible scenario of an organisation unfairly or unlawfully processing someone’s personal data. You have already conceded that, if BMW Financial Services were to issue a default notice to CRAs in my scenario, this WOULD QUALIFY as unfair processing. However, you refuse to confirm/accept that the recording of sums made up solely of fees or charges in the form of a late/missed payment note (or any other credit file entry) as an alternative to issuing a default notice DOES NOT constitute unfair processing.
    Since the former is true (verified within the 2016 SCOR Guidance), you should have no trouble in confirming/agreeing with the latter. Your refusal to confirm/accept the latter is a contradiction, and as such it appears that all avenues lead to exactly the same conclusion - that the recording of sums made up solely of fees or charges to CRAs (regardless of the way in which they are reported) qualifies as unfair and/or unlawful processing of personal data in accordance with the Data Protection Act.


    Allow me to elaborate. Normally, a lender would issue a default notice after between 3 - 6 missed payments on an account. Let’s say BMW Financial Services had done this in my scenario - they issue a default notice, and as you have confirmed, this would be without question considered unfair and/or unlawful processing of my personal data. This suggests that BMW Financial Services’ choice to continue submitting missed/late payment entries to CRAs, for example by changing the CAIS code for each monthly entry in order to deliberately avoid having to submit a default notice, must also be considered unfair and/or unlawful processing of my personal data (if not also an abuse of the credit reference system).


    Additionally, the fees/charges that BMW Financial Services allege are owed do not make up any part of the original credit agreement/credit account. Therefore, their choice to submit missed/late payment entries to CRAs as a part of the original credit agreement/credit account qualifies as inaccurate and/or unlawful processing of my personal data (in accordance with the Data Protection Act). Their doing so has been detrimental to me personally. By recording inaccurate missed/late payment entries to CRAs about a credit agreement/credit account that has in fact been closed, BMW Financial Services are suggesting/implying to other lenders that I would be unlikely to keep up my repayments/instalments if they were to offer me credit. The result is that other lenders have either refused me credit, or drastically increased the rates of interest offered, based on the totally unfounded suggestions/implications made by BMW Financial Services. Not only is this a complete defamation of my character, it is slanderous. The Data Protection Act (that which the ICO is supposed to regulate) is designed to protect consumers by preventing organisations from submitting inaccurate personal data into the public domain - BMW Financial Services are doing exactly that in my scenario, and are therefore in breach of the Data Protection Act. When asked by myself, you stated that the submitting of inaccurate personal data into the public domain was not something the ICO can assist with, but you refused to explain why this was the case.


    In summary, you need to take a more pragmatic approach towards my complaint:
    - If a lender should not be recording a default for sums made up solely of fees or charges (an admission made by yourself, and confirmed in the 2016 SCOR Guidance), then the pragmatic and logical view is that the lender should also not be recording missed/late payment entries for sums made up solely of fees or charges.
    - If a lender is recording inaccurate personal data about an individual with CRAs and this is negatively affecting that individual’s personal circumstances, the pragmatic and logical view is that this should be considered defaming, and a breach of the Data Protection Act equal to any other.


    With the above considered, I would like to request that you please answer the following questions (in writing) to help clarify your findings as well the ICO’s official position in response to my complaint:
    1. What is the ICO’s/your official definition of a “default notice”?
    2. According to the ICO, under what circumstances/criteria SHOULD a lender be recording a default notice to CRAs?
    3. According to the ICO, under what circumstances/criteria SHOULD a lender NOT record a default notice to CRAs?
    4. Can the ICO/you confirm that a default notice recorded for sums made up solely of fees or charges would qualify as unfair and/or unlawful processing of personal data?
    5. According to the ICO, are missed/late payment entries recorded for sums made up up solely of fees or charges considered as unfair and/or unlawful processing of personal data, or not?
    6. Why is the ICO/are you REFUSING to explain why the submitting of inaccurate personal data into the public domain (that is having a detrimental effect on my personal circumstances) is something that the ICO cannot assist with in my scenario, despite the ICO dealing with this issue on a daily basis in relation to other scenarios?


    Furthermore, I would like to request that my complaint/case be passed onto/reviewed by a more senior case officer in addition to yourself. You have already admitted that your earlier findings were inaccurate due to you misquoting/misunderstanding the 2016 SCOR Guidance (proof of which I have via email), and as such, I am concerned that your more recent findings are equally inaccurate. With all due respect, I am concerned that you are unable to review my complaint/case with the level of legal competency (in relation to the Data Protection Act) that it requires.


    I will expect a response from you before close of business hours tomorrow (5pm, Friday 5th January 2018). If I do not receive this, then I will seek to contact an alternative case officer myself.
    I want to see if I can have my complaint reviewed by a case officer who wasn't born yesterday, to be frank.

    When I have a little more time tomorrow, I'll contact BMW direct (by which I mean BMW themselves, not my local dealership) to apply pressure from this direction also.

    If all else fails, then as you say, court is the next option. We'll cross this bridge if/when we come to it though.

  16. #66
    Kellycat's Avatar

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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    Rather late to the party as I only recently picked up this tread, but I have seen many others with a response from R0b regarding VT. Thank you ROb for your assistance and patience with us all.


    I am in a similar position to many others here with BMW FS who have placed an outstanding amount on my Experian file of £720, although the amount they invoiced me for was £719.84.


    I appreciate that the amount they are claiming is not a great as others here - my BMW had covered 31,000 miles in 36 months which I do not think is excessive fair wear and tear, and I have downloaded the sales particulars for the actual car and comparable vehicles with varying mileages from the BMW Used car website which clearly indicates that the milage had no effect on value - in my case of course.


    I have actually paid £99.60 at the beginning of December 2017 as this was the estimate that their inspector gave me for repair to a damaged wheel and a small dent, and I was more than willing to accept this it was outside the BVRLA guidelines but BMW FS said they will ignore this and will not invoice me for it!.


    Therefore irrespective of the rights and wrongs, the figures shown on my file are inaccurate as to amount and delay.


    I have previously invited BMW FS to take me to Court for the outstanding amount, which they have not done of course.


    I have not contacted either the FO or ICO and in view of KurtCriscos excellent work and feedback here I do not see any mileage in it at present unless they were to come out with a definite ruling (pardon the pun)


    I have today composed a letter to Sara Dawes who is listed as The Data Protection Officer for BMW FS advising her of the errors on my Experian record and inviting her to remove the alleged outstanding amount and correct the error of her ways and confirm this within 21 days of the date of the letter (which I will post by recorded deliver tomorrow). If she decides not to do this I have said I will commence Court proceedings.


    Regrettably this is not the first time I have had to go through this for justice although not in respect of this matter (dodgy builders!) and I do have some experience of attending Court though my work.


    I have however offered to make a Without Prejudice payment of an additional £150.00 on acknowledgement from her that my record has been amended (not just a promise); this will be about 30% of the whole they are claiming if added to the £99.60 that I have already paid.


    As an aside, when I initially VT’d t was to buy a new BMW as the one in dispute was no longer suitable for my needs and they have been happy to give me 0% finance for the whole value of the car on a 4 year PCP, although that was before this all kicked off.


  17. #67
    kreig's Avatar

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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    Quote Originally Posted by Kellycat View Post
    Rather late to the party as I only recently picked up this tread, but I have seen many others with a response from R0b regarding VT. Thank you ROb for your assistance and patience with us all.


    I am in a similar position to many others here with BMW FS who have placed an outstanding amount on my Experian file of £720, although the amount they invoiced me for was £719.84.


    I appreciate that the amount they are claiming is not a great as others here - my BMW had covered 31,000 miles in 36 months which I do not think is excessive fair wear and tear, and I have downloaded the sales particulars for the actual car and comparable vehicles with varying mileages from the BMW Used car website which clearly indicates that the milage had no effect on value - in my case of course.


    I have actually paid £99.60 at the beginning of December 2017 as this was the estimate that their inspector gave me for repair to a damaged wheel and a small dent, and I was more than willing to accept this it was outside the BVRLA guidelines but BMW FS said they will ignore this and will not invoice me for it!.


    Therefore irrespective of the rights and wrongs, the figures shown on my file are inaccurate as to amount and delay.


    I have previously invited BMW FS to take me to Court for the outstanding amount, which they have not done of course.


    I have not contacted either the FO or ICO and in view of KurtCriscos excellent work and feedback here I do not see any mileage in it at present unless they were to come out with a definite ruling (pardon the pun)


    I have today composed a letter to Sara Dawes who is listed as The Data Protection Officer for BMW FS advising her of the errors on my Experian record and inviting her to remove the alleged outstanding amount and correct the error of her ways and confirm this within 21 days of the date of the letter (which I will post by recorded deliver tomorrow). If she decides not to do this I have said I will commence Court proceedings.


    Regrettably this is not the first time I have had to go through this for justice although not in respect of this matter (dodgy builders!) and I do have some experience of attending Court though my work.


    I have however offered to make a Without Prejudice payment of an additional £150.00 on acknowledgement from her that my record has been amended (not just a promise); this will be about 30% of the whole they are claiming if added to the £99.60 that I have already paid.


    As an aside, when I initially VT’d t was to buy a new BMW as the one in dispute was no longer suitable for my needs and they have been happy to give me 0% finance for the whole value of the car on a 4 year PCP, although that was before this all kicked off.

    Not about the amount, mine is even smaller.

    Interested to hear if your Without Predjudice offer is accepted as when the FO come back to me, I am likely to take this route.

  18. #68
    Phaeton's Avatar

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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    Sitting from the outside looking in, would it not be better for everybody to contact BMWFS individually, the more people complain the higher profile their incorrect practise will become within the ICO?

  19. #69
    kreig's Avatar

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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    I requested further clarification from Experian on this issue and had the following reply:
    "I understand that you would like further clarification about the status of the BMW account, detailed above.
    I can confirm that the BMW account has not been recorded as a defaulted account by the lender.
    The account currently has a delinquent status and is showing as an active account. If BMW had closed the account, a settlement date would show and the balance would show as £0.

    When an account has been three or more months in arrears on consecutive occasions, some lenders consider it to be 'delinquent'. This 'delinquency' will date from when the account was most recently three or more months in arrears. Banks may take the outstanding balance into consideration at the time of the 'delinquency' even though the account may now be up to date or even settled."




  20. #70
    kreig's Avatar

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    Default Re: BMW Financial Services - Voluntary Termination/Excess Mileage

    Ok, so spookly enough the FO also got back to me today, but they are not upholding my complaint.

    The way they see it is BMW have not filed a full default, that would be a breach as not giving me proper notice etc
    They have read through the original contract and they believe the excess mileage charges are due as stated in the original agreement.
    BMW don't have to go to a full default if they do not wish to, and it actually does less damage to my credit rating in its current form.

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