Page 1 of 2 12 LastLast
Results 1 to 25 of 40

Thread: Mercedes Benz - Ridiculous back and forth VT situation

  • Share
  • Thread Tools
  • Display
  1. #1
    jonnyfeng's Avatar

    Junior Member



    Joined
    Jan 2017
    Posts
    21
    Mentions
    1 Post(s)

    Default Mercedes Benz - Ridiculous back and forth VT situation

    So i VT'd my car back in September. The story so far...

    I dropped the car off at the dealership i collected my new car from. They collected the car without me being there several days after i collected my new one. I wasn't present at the time of collection, so signed nothing to state condition etc.

    I did sign the form they emailed me previously stating i wish to VT and also paid a remainder to clear the 50%

    Several weeks after the car was collected i received a letter / Invoice explaining i would need to pay additional costs:

    1 Excess mileage charges approx £2100
    2 Incomplete Service History approx £700

    I called them immediately to dispute the service history issue. I explained that the paperwork was all there to correspond this and they said they will look into it. When they mentioned the excess mileage charge i explained i do not wish to discuss this as i was simply proving the service history was correct therefore the car was kept in "reasonable condition"

    A week later an advisory from MBFS called me to explain that the Service History was checked and all cleared. I then mentioned that due to this regardless of the mileage charge, the car was now deemed as reasonable condition. 50% had been paid, therefore the situation was complete and no further action could be taken. I was chuffed to say the least.

    nearly 3 months later i was sat at home and heard a voicemail left from Mercedes Benz requesting i call them. I felt no need as i was no longer in contract with them, i assumed it was survey calls etc so thought nothing of it. Until i recieved a letter explaining there were overdue funds outstanding, simply quoting an account number without stating any figures.

    I again chose to ignore this as i had confirmed over the phone several months earlier everything was complete.

    I then recieved an email, which i responded to explaining the situation briefly and asking them to review the situation and to then please stop bothering me.

    I recieved an email back with a forwarded email stating that after the service history issue had been cleared there was still outstanding funds. They didnt comment on the call i explained where i had confirmed all was up to date.

    I emailed again explaining the situation further, and also noted at this point the CCA 1974 sections 99 and 100 further clarifying that excess charges arent something i need to pay as i cleared 50% and gave the car back in reasonable condition.

    I was then emailed again :

    "When carrying out a voluntary termination you are still liable for charges such as Excess Mileage. Due to this, I am not able to remove your charge.

    If you remain dissatisfied with your complaint response you will need to escalate this to the Financial Ombudsman Service for independent review"

    I replied as follows:

    "Good afternoon,

    Thanks for the response. I have several questions I would like answering.


    1. When purchasing the vehicle, how come the salesman, explained to me that to get the car within my budget the mileage allowance could be lowered to accommodate the lesser price. They then told me that unless I keep the car until the end of the term this will not make a difference. If I voluntary terminate, It wouldn’t matter or If I traded in early. This is not something I have experienced at Mercedes but also with other manufacturers sales teams as well. It seems to be common knowledge and mentioned a lot from car sales teams. This shows to me that the training to given to sales teams may be misleading to encourage sales, which then turns out to be an issue come the end.


    I feel this is bad practice. Could you explain why this happens frequently, as it did so in my case?


    1. The Consumer Credit Act 1974 states that, in regards to car finance and higher purchase agreements, that, by law, when voluntary terminating the vehicle, the debtor must have paid 50% of the total value, and kept the car in reasonable condition. There is then nothing further to pay if these conditions are met.


    You expressed in your last email “When carrying out a voluntary termination you are still liable for charges such as Excess Mileage” Can you please highlight where I need to be looking to clarify this, As I cannot find anything in Law that states that point to me? In fact it is expressed that I am liable for no further charges, as long as I have paid 50% of the total, and kept the car in reasonable condition.

    Shown below are sections of the Consumer Credit Act 1974 which cover this agreement:

    Section 99 – (The right to terminate the agreement at any time)

    (1) At any time before the final payment by the debtor under a regulated hire-purchase or regulated conditional sale agreement falls due, the debtor shall be entitled to terminate the agreement by giving notice to any person entitled or authorised to receive the sums payable under the agreement.
    (2) Termination of an agreement under subsection (1) does not affect any liability under the agreement which has accrued before the termination.
    Section 100 – (Liability is restricted to 50%)
    (1) Where a regulated hire-purchase or regulated conditional sale agreement is terminated under section 99 the debtor shall be liable, unless the agreement provides for a smaller payment, or does not provide for any payment, to pay to the creditor the amount (if any) by which one-half of the total price exceeds the aggregate of the sums paid and the sums due in respect of the total price immediately before the termination.

    (4) If the debtor has contravened an obligation to take reasonable care of the goods or land, the amount arrived at under subsection (1) shall be increased by the sum required to recompense the creditor for that contravention, and subsection (2) shall have effect accordingly.
    Section 173 – (Conflicting contractual terms are void and not enforceable)

    (1) A term contained in a regulated agreement or linked transaction, or in any other agreement relating to an actual or prospective regulated agreement or linked transaction, is void if, and to the extent that, it is inconsistent with a provision for the protection of the debtor or hirer or his relative or any surety contained in this Act or in any regulation made under this Act.

    (2) Where a provision specifies the duty or liability of the debtor or hirer or his relative or any surety in certain circumstances, a term is inconsistent with that provision if it purports to impose, directly or indirectly, an additional duty or liability on him in those circumstances.


    1. I was told when I last spoke with the advisor in October who called me to let me know the service history had been recovered and was all up to date. That this was the end and no further action needed to take place. It was to my understanding that at this point it was proven that reasonable care was taken:


    Due to having nothing mentioned on the cars condition report as unreasonable. The vehicle was then classified as reasonable condition. As 50% of the total was recovered. I was able to Voluntary Terminate according to the law as outlined above in sections 99 and 100 of the consumer credit act 1974.

    Had there been further issues to dispute in regards to the mileage then why when I spoke with the advisor who explained all was now ok and the service history matter was resolved, would there be no further dealings and all is confirmed as being complete.

    For you to start pursuing me again several months later is questionable. This is very contradictory and I would like to know why?



    1. I would like to ask if Mercedes Benz financial is at a loss, if the amount allegedly owed is not recovered?



    Please could you answer the 4 questions, clearly and concisely, using evidence to support, which I have set out clearly to you.


    Sincerely"

    I then didnt hear anything from them for several weeks until today which i received another response, explaining they have reviewed the situation, and are now again simply requesting that i take up this matter with the FOS.

    At which point i have asked again that they answer my questions.

    I feel this is going to go around in circles with them asking me to take this up with the FOS, and me requesting they answer my questions. Can someone advise me in regards to what to do at this point in time. I dont feel like i need to speak to the FOS as i feel they need to prove themselves to me rather than the other way around. I would happily ignore them as i feel this is in dispute they cant affect my credit rating?? but i feel it is on them to prove me wrong as opposed to the other way...

    Any opinions or help appreciated!!

  2. #2
    jonnyfeng's Avatar

    Junior Member



    Joined
    Jan 2017
    Posts
    21
    Mentions
    1 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    bump?

  3. #3
    Kati's Avatar

    LB Team Member



    Joined
    Jun 2014
    Posts
    11,753
    Mentions
    1214 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    tagging @R0b xx
    Debt is like any other trap, easy enough to get into, but hard enough to get out of.

    It doesn't matter where your journey begins, so long as you begin it...

    recte agens confido

    ~~~~~

    Any advice I provide is given without liability, if you are unsure please seek professional legal guidance.

    I can be emailed if you need my help loading pictures/documents to your thread. My email address is [email protected]
    But please include a link to your thread so I know who you are.

    Specialist advice can be sought via our sister site JustBeagle

  4. #4
    R0b's Avatar

    VIP Member



    Joined
    Sep 2015
    Posts
    4,255
    Mentions
    711 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    Quote Originally Posted by jonnyfeng View Post
    bump?
    Afternoon, I will try and take a look at this later today and get back to you.
    DISCLAIMER: ANY CONTENT I POST IS INTENDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT A REPLACEMENT OR SUBSTITUTION FOR LEGAL ADVICE. I MAKE NO REPRESENTATIONS AS TO THE ACCURACY OF MY POSTS NOR DO I ASSUME ANY RESPONSIBILITY. USE OF ANY CONTENT IS SOLELY AT YOUR OWN RISK AND COST AND I ACCEPT NO LIABILITY. YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


  5. #5
    jonnyfeng's Avatar

    Junior Member



    Joined
    Jan 2017
    Posts
    21
    Mentions
    1 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    Quote Originally Posted by R0b View Post
    Afternoon, I will try and take a look at this later today and get back to you.

    Thanks! I have requested they send me all paperwork from the start of the of the agreement including the VT paperwork, which they have done. They have now called me today, and explained i have 30 days to provide them with a reference from the FOS in which case will postpone them pursuing me for collection.

    Im pretty much fed up with this, and frankly i haven't got £2100 to pay them even if i wanted to give up. So i will just take it the whole way, and if they want to take me to court so be it. I would need advice all the way though!

    Thanks again

  6. #6
    R0b's Avatar

    VIP Member



    Joined
    Sep 2015
    Posts
    4,255
    Mentions
    711 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    Do you have any proof that the service history was all there, are you able to verify which garage you took it to and perhaps get a copy of any receipts or invoices? Did you pay for the servicing by card and if so can you trace that to prove service history was done?

    Depending on the type of service you get, the majority of it is simply a box ticking exercise to see the state of the car and its components. I presume that they are relying on a contractual clause which says you must have the car serviced at the right intervals and failing to do so will result in a charge. If that is the case then by virtue of s.100 and s.173 that clause is not enforceable.

    Perhaps they may argue along with the excess mileage that the car is not in a reasonable condition. There's a number of counter arguments to that but do you have a condition report on the vehicle and if so what does it say? They have instructed someone to carry condition report and if there is nothing in relation to the mechanical soundness of the car then it ought to be deemed that everything is all reasonable.

    Lenders see this as a money grabbing exercise when you VT and I'm not aware of anyone going to court over it but that's not to say it won't happen. It is helpful to ensure the car is serviced regularly to offset any arguments for excess mileage but in any event the onus is on Mercedes to prove the unreasonableness of the car not you.

    As for your credit rating, no they should not apply a default to it but I would suggest you keep an eye on it whilst this is ongoing. Simply for the reason that it is common for them to apply for one and no doubt up the pressure on debtors paying up. If they have filed a default or not closed the account as 'settled' then you may have an argument for breach of data protection in terms of keeping information accurate and up to date. The ICO has provided guidance that if the amount is made up purely of fees or charges then no default should be applied. Your only recourse on that is complain to the ICO or go to court over it, which will probably force them to either counterclaim for the excess mileage or settle or just defend it.

    You could go to the FOS but they seem to be batting them back and finding in favour of the lender.
    DISCLAIMER: ANY CONTENT I POST IS INTENDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT A REPLACEMENT OR SUBSTITUTION FOR LEGAL ADVICE. I MAKE NO REPRESENTATIONS AS TO THE ACCURACY OF MY POSTS NOR DO I ASSUME ANY RESPONSIBILITY. USE OF ANY CONTENT IS SOLELY AT YOUR OWN RISK AND COST AND I ACCEPT NO LIABILITY. YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


  7. #7
    jonnyfeng's Avatar

    Junior Member



    Joined
    Jan 2017
    Posts
    21
    Mentions
    1 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    The matter of service history was cleared, i sent them proof as soon as they sent me the first invoice, they retracted this and then went on to say that i only owe for the excess mileage. Which is the only thing they are pursuing.

    I back and forthed with them on email explaining that i dont believe i need to pay for this. then early this year they explained it was passed to complaints. I received a response in February saying they have looked in the matter as a complaint and found the following:

    Thank you for taking the time to discuss your concerns with our De-Fleet department following our previous response to your concerns. Your correspondence has been referred to me to review and respond to accordingly.

    From our records, your previous concerns were in relation to the service history charge raised and this was subsequently credited with our apologies. There was no record of your dispute regarding the excess mileage and this was therefore not addressed in our previous response. The response to your complaint was sent in October and a hold was placed on the file to allow you the time to contact us following this if necessary. Once this time had elapsed, our contact began again in December however, I apologise if the time between contact caused you any confusion.

    I understand you are unhappy with the excess mileage charge raised following the return of your vehicle. With regard to your conversation with the supplying dealership; I am unable to comment on this as I was not present and in instances such as these, I am only able to rely on your signed agreement, a copy of which I have attached for your reference, as evidence of the terms agreed and your understanding of these.

    Whether you are returning your vehicle at the end of your agreement or upon use of the Voluntary Termination (VT) clause, as you have not exercised your right to purchase the vehicle, an excess mileage charge will be raised should your return mileage exceed your total mileage allowance. This obligation is set out within the first page of your agreement, under key information. The provisions of the Consumer Credit Act that cover a customer’s right to VT their agreement do permit us to include any over mileage when determining what is 'not reasonable' upon the cars return. It is stated in your agreement under ‘Excess Distance’; ‘If the vehicle is returned to us (whether at the end of the period hire or an earlier termination), we will calculate the total distance travelled by the vehicle whilst in your possession (the “Total Distance”)’. The 50% payment term is in relation to the finance instalments only and does not include any end of contract charges which is why you would not have been advised of the excess mileage charge prior to the collection of the vehicle.

    Your mileage allowance has therefore been re-calculated on a pro-rata basis in line with the length of time you have had the vehicle in your possession and I have attached a copy of the Voluntary Termination acceptance form signed by you confirming your agreement to be held liable for any damages or excess mileage following an inspection of your vehicle.

    Please find below a breakdown of your excess mileage calculation for your reference:

    Original Allowance: 40,000 miles
    Term of agreement: 48 months
    Terminated early by: 9 months
    Revised allowance: 32,499.87 miles
    Collection miles: 52,009 miles
    Exceeded by: 19,509 miles
    Pence per mile: 9 pence per mile +VAT
    Total: £2,106.97

    I would also like to kindly refer you to S99 (2) Consumer Credit Act 1974 where it states:

    ‘Termination of an agreement under S (1) does not affect any liability under the agreement which has accrued before the termination.’

    As your agreement was subject to a mileage allowance prior to termination and you have exceeded the allowance of 32,499.87 miles, the charge has been raised correctly and remains payable.

    A residual sale value was agreed at the start of your lease and this was based on the vehicle being returned in the appropriate condition, within the agreed mileage allowance and with a full service history. In instances where a vehicle is not returned in these conditions, we receive a lesser sale price for the vehicle than the once initially agreed.

    I hope this has provided you with further clarification regarding your concerns and I trust the above has provided you with the reassurance that your concerns have been fully reviewed in line with our obligation to treat our customers fairly.

    May I kindly ask that you accept this as our final response, however, should you be at all unhappy with our handling of your complaint you have the right to refer your complaint to the Financial Ombudsman Service, free of charge – but you must do so within six months of the date of this response. If you do not refer your complaint in time, the Ombudsman will not have our permission to consider your complaint and so will only be able to do so in very limited circumstances. For example, if the Ombudsman believes that the delay was as a result of exceptional circumstances. The Ombudsman contact details are Exchange Tower, Harbour Exchange Square, London, E14 9SR Tel:- 0800 023 4 567 or 0300 123 9 123, website www.financial-ombudsman.org.uk.

    Yours sincerely,
    I have since requested that they send me all the paperwork from the contract as i no longer had it thinking it was all done and dust before xmas last year. They have sent me this which is all photocopy and i cannot read any of the small print because it is all terribly quality.

  8. #8
    R0b's Avatar

    VIP Member



    Joined
    Sep 2015
    Posts
    4,255
    Mentions
    711 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    Ah I see,

    Have you kept copies of all your correspondence and proof of receipts etc that you sent to them? If the quality is really bad then I would request that they send you the paperwork in a legible format. If they don't then you may have to do this under a Subject Access Request.

    I would also like to kindly refer you to S99 (2) Consumer Credit Act 1974 where it states:

    ‘Termination of an agreement under S (1) does not affect any liability under the agreement which has accrued before the termination.’
    That is true to an extent but is misleading. What it is saying is that you have the right to terminate the agreement but if you do, it does not affect any outstanding balance which is owed prior to the termination - that is the starting point. I believe Mercedes have in their clause something like any excess mileage will accrue immediately before termination of the agreement to try and get around the limited liability. That clause is too vague and uncertain because you cannot guarantee that someone will exceed the agreed mileage. Mercedes cannot determine the excess mileage until the contract has been terminated and the car returned to work out if any excess mileage is owed i.e. you can't accrue for something that may or may not happen, hence that clause being too vague.

    Secondly, s.100 specifically states that if you terminate the agreement in accordance with s.99, then the debtor is liable for 50% of the total price. The total price payable to Mercedes does not include any compensation or damages for breaching the terms of the agreement. Therefore, s.100 has carved out any liability for breach of the excess mileage charge as void and unenforceable. S.99(2) referred to by Mercedes comes into play only in relation to any outstanding instalments.

    s.189: definitions
    'total price' means the total sum payable by the debtor under a hire-purchase agreement or a conditional sale agreement, including any sum payable on the exercise of an option to purchase, but excluding any sum payable as a penalty or as compensation or damages for a breach of the agreement
    DISCLAIMER: ANY CONTENT I POST IS INTENDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT A REPLACEMENT OR SUBSTITUTION FOR LEGAL ADVICE. I MAKE NO REPRESENTATIONS AS TO THE ACCURACY OF MY POSTS NOR DO I ASSUME ANY RESPONSIBILITY. USE OF ANY CONTENT IS SOLELY AT YOUR OWN RISK AND COST AND I ACCEPT NO LIABILITY. YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


  9. #9
    jonnyfeng's Avatar

    Junior Member



    Joined
    Jan 2017
    Posts
    21
    Mentions
    1 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    Yes i thought that was the case. It seems everything in Mercedes Terms and conditions simply hints towards things and never specifically clarifies. I received another copy of terms from them in a readable format.

    they state several times that excess mileage charges will be added if you were to complete the agreement, or if you terminate earlier than the end of the agreement. they dont specify VT unless that is supposed to fall under "early termination"

    The part of the document where it does mentioned VT it doesnt actually mention mileage charges specifically. It makes me think that they may know they cant do this so word everything cleverly around this point.

    I am concerned that when i did VT, i was sent a form that states i am liable for excess mileage charges. I was told i had to sign this to clear the small outstanding amount required to 50% and also to confirm that i want to VT. I did question this at the time as i read others didn't have to sign this form. I was advised they couldnt process anything without me signing.

    Also i wasn't present at the time the car was collected so never signed to agree that?I only saw the report yesterday when i received all the paperwork i requested. All the paper work shows the car was in excellent condition.

    So now i need to put a complaint in the the FOS. Is there any advise for writing this complaint?

    Much appreciated!

  10. #10
    R0b's Avatar

    VIP Member



    Joined
    Sep 2015
    Posts
    4,255
    Mentions
    711 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    For clarity the statement in the agreement "Termination: Your Rights" is effectively an expressed term clarifying what s.100 says and in a much simpler way.

    If you read Schedule 1 of the Consumer Credit (Agreements) Regulations 2010 (http://www.legislation.gov.uk/uksi/2.../contents/made) sets out the information required to be included in the agreement. Paragraph 30 explains that lenders must include a statement about how a debtor can terminate and the debtors maximum liability under s.100

    Schedule 2 then sets out the statements lenders must include as part of the debtor's protection and remedies under the CCA. Form 9 is the same worded statement in your agreement and this specific statement gives effect to section 100 i.e. 50% of the total amount payable, outstanding instalments and reasonable care of the car.

    As for the FOS, you simply download their form and submit your evidence filling in the boxes. A word of caution, they only look at whats fair and reasonable and as it currently stands they seem to side with lenders on the excess mileage and despite the wording in Termination: Your Rights clause saying if you satisfy the criteria you will pay nothing more. They seem to disregard the end of that sentence and say the excess mileage clause is in addition to that.

    So if you do make a complaint, I wouldn't expect any positive news.

    Also to add, there is no known cases which has gone to court and lenders have been successful on it. I would imagine they know there's a real risk they will lose and not least more people may become aware of the fact they lost. That's not to say the argument is bullet proof as it has yet to be tested, but from a pure legal perspective, my opinion would be that the law is on the debtor's side and they would be favourite to win.
    DISCLAIMER: ANY CONTENT I POST IS INTENDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT A REPLACEMENT OR SUBSTITUTION FOR LEGAL ADVICE. I MAKE NO REPRESENTATIONS AS TO THE ACCURACY OF MY POSTS NOR DO I ASSUME ANY RESPONSIBILITY. USE OF ANY CONTENT IS SOLELY AT YOUR OWN RISK AND COST AND I ACCEPT NO LIABILITY. YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


  11. #11
    jonnyfeng's Avatar

    Junior Member



    Joined
    Jan 2017
    Posts
    21
    Mentions
    1 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    Well i can tell you now, they can pursue me as much as they want, i will see it through to the end regardless of outcome as i dont have that kind of money to pay them even if i wanted to!

    So basically i will report everything to the FOS, await their findings, and then what?

    What happens next?

    Thanks again!

  12. #12
    R0b's Avatar

    VIP Member



    Joined
    Sep 2015
    Posts
    4,255
    Mentions
    711 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    I would expect the FOS to find in favour of the lender, they will send you a document saying whether you agree with their findings, if you tick yes then you are legally bound by their decision and you must pay Mercedes. If you tick no or don't send the document back within a period of time then it is automatically assumed you reject their decision and is not binding, Mercedes would be free to issue a claim if they wanted to.

    Following that, it's anyone's guess. There has been one or two threads on here in which people have purportedly said a claim has been issued against them for recovery of excess mileage but then suddenly fail to post anything further. Whether it is a genuine claim I do not know, if it is good luck to them on their defence.

    If I was speculating, Mercedes might apply a default to your credit file for the excess mileage and then you may have a cause of action against them for breach of data protection which, if you issued a claim would force their hand perhaps with a counterclaim for the excess mileage. Or they may simply pass the buck and sell the alleged debt to a debt purchaser who would more likely than not initiate a claim. The less likely option would be Mercedes bringing a claim themselves and I would be surprised if they did but anything can happen.

    In the meantime, keep all documents and copies of correspondence you send/receive for the next 6 years as that is the time limit Mercedes has to bring a claim against you.
    DISCLAIMER: ANY CONTENT I POST IS INTENDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT A REPLACEMENT OR SUBSTITUTION FOR LEGAL ADVICE. I MAKE NO REPRESENTATIONS AS TO THE ACCURACY OF MY POSTS NOR DO I ASSUME ANY RESPONSIBILITY. USE OF ANY CONTENT IS SOLELY AT YOUR OWN RISK AND COST AND I ACCEPT NO LIABILITY. YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


  13. #13
    shaunbent's Avatar

    Junior Member



    Joined
    May 2017
    Posts
    12
    Mentions
    1 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    @jonnyfeng Is there any update on your case here?!?

    I am about to VT my Mercedes and am concerned about excess millage charges.

  14. #14
    jonnyfeng's Avatar

    Junior Member



    Joined
    Jan 2017
    Posts
    21
    Mentions
    1 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    @shaunbent

    So far i have contacted the FOS, and had a good chat with them, I am in the process of writing a complaint and sending this over to them for review.

    Mercedes have issues a collection agency to pursue me for the costs in the meantime, I have received the first letter this morning from them, and i am going to email them letting them know that i have a complaint with the FOS regarding the matter ongoing.

    I plan to simply ignore the debt collection agency. and continue to pursue via the FOS.

    Should FOS find in favour of Mercedes i will wait for them to send me a court letter, as mentioned previously i am not in a position where i can even contemplate outlaying £2106 so i have no choice really.

  15. #15
    xs2man's Avatar

    Member



    Joined
    Aug 2016
    Posts
    66
    Mentions
    8 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    Quote Originally Posted by jonnyfeng View Post
    @shaunbent

    So far i have contacted the FOS, and had a good chat with them, I am in the process of writing a complaint and sending this over to them for review.

    Mercedes have issues a collection agency to pursue me for the costs in the meantime, I have received the first letter this morning from them, and i am going to email them letting them know that i have a complaint with the FOS regarding the matter ongoing.

    I plan to simply ignore the debt collection agency. and continue to pursue via the FOS.

    Should FOS find in favour of Mercedes i will wait for them to send me a court letter, as mentioned previously i am not in a position where i can even contemplate outlaying £2106 so i have no choice really.
    They may not ever issue you a court letter though. That is what I have been doing, waiting for them to escalate it. They have not thus far made any attempt. In the meantime, they have put a marker against my credit file for a late payment, despite stating the account is settled, but leaving a balance of the amount requested for excess mileage. The upshot of this is that my credit file is completely trashed. So it looks increasingly as if I have to start proceedings to conclude this matter.

    It's worth checking your credit file about this. I suspect Mercedes has done to you what BMW have done to me.

  16. #16
    jonnyfeng's Avatar

    Junior Member



    Joined
    Jan 2017
    Posts
    21
    Mentions
    1 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    Ok guys so the FOS has come back to me with a response favouring Mercedes Benz as suspected, they have explained in the response that if i wish to further question their finding i may do so for this to be further reviewed.

    I would desperately appreciate if you guys could further help me put across points at this stage, as i feel i may not have adequately explained things. I have included the response from FOS here:

    Hi Jonathan

    Thank you for your patience while I’ve look into your complaint. I’ve now completed my investigation and I’m ready to share my thoughts.

    In your complaint letter you’ve raised a number of points. As you’ll see below I’ve addressed each one of these individually.

    you were told on many occasions that you don’t need to pay the excess mileage charges unless you keep car until end of the agreement. You were also told to take the lower mileage option on the agreement to lower your monthly costs. You feel that this is an industry-wide mis-selling scandal that requires intervention from the Financial Ombudsman Service

    Unfortunately it’s very difficult for us to know what was said during sales meetings as it is often a case of one person’s word against another. Having said that, we’d expect Mercedes-Benz Financial Services (MBFS) to investigate any allegations of mis-selling by their agents and provide feedback to each branch that a complaint has been raised against. But while I’ve taken your testimony into account, it’s very difficult for me to say the agreement was mis-sold without any further evidence to back this up.

    I also appreciate your concerns that this may be an industry-wide problem. But our role is to look at each individual complaint on its merits, not to investigate the industry as a whole. We do record all of our complaints and if we see any trends in complaints we report these to the relevant industry regulator. But we’d still need to look at each complaint on an individual basis.

    your Hire Purchase agreement doesn’t specifically state that excess mileage charges will be applied upon voluntary termination. In addition, the voluntary termination section doesn’t specifically mention excess mileage

    I’ve reviewed the hire purchase agreement and I feel that, although it doesn’t specifically mention voluntary termination on the first page of the agreement, it states that, “if you do not exercise your right to purchase the vehicle, an excess distance charge will be payable” As voluntary termination means you aren’t purchasing the vehicle, I think you should’ve reasonably known the charge would be applicable.

    This note on the first page also refers you to Condition 12 of the agreement, which states that, “If the vehicle is returned to us (whether at the end of the period of hire or on earlier termination), we will calculate the total distance travelled by the Vehicle whilst in your possession (the “Total Distance”). You will pay us a charge at the rate stated in this agreement if and to the extent that the Total Distance exceeds the allowed distance for the Vehicle.”

    So while I think it was already made clear enough on the first page, this condition leaves no room for doubt that the charge will be applicable on early termination.

    you were told you had to sign a form authorising voluntary termination and taking responsibility for any excess mileage. You’ve now discovered you weren’t actually obliged to sign this form.

    I appreciate your concerns about this and, as my investigation has mainly focused on events at the time the original agreement was signed, I haven’t placed any weight on the voluntary termination form that you signed.

    MBFS are going against the Consumer Credit Act by charging for excess mileage. For voluntary termination, you should be liable for 50% of the total price, which doesn’t include any compensation or damages for breaching the term of the agreement. Additionally, taking reasonable care of the vehicle doesn’t include the excess mileage.

    You’re correct that, as a customer you’re only liable for 50% of the total price upon voluntary termination – if the goods have been reasonably taken care of. But, as outlined in s.100 (4) of the Consumer Credit Act, the creditor is also entitled to charge in addition to the total price if the goods haven’t been reasonably looked after.

    I understand your opinion that mileage is separate to taking reasonable care of the vehicle. But the Financial Ombudsman Service’s approach is that taking reasonable care of the goods does include keeping to the agreed annual mileage – particularly if this is made clear in the contract, as it has been here. As you’ve not kept to the agreed mileage, MBFS are entitled to say the goods haven’t been reasonably looked after. So it’s fair for them to apply the relevant charges as set out in your agreement.

    MBFS are too focused on mileage and cosmetics, which means you’re being punished for them focusing on resale value. There are many other factors that can determine how well a car has been looked after. You also feel that a car with hire mileage that has been better looked after is worth a similar amount.

    Under Hire Purchase agreements, the creditor knows they may receive the goods back at some point. So it’s reasonable for them to want to protect the resale value of these goods. And while there are many factors to consider the quality of a car, as I’ve previously advised, we consider it reasonable for a business to look at mileage as part of this.

    Ultimately, you’ve signed the contract, agreeing to be bound by the terms of the Hire Purchase agreement. MBFS are now applying these terms as agreed. So I don’t believe they’re doing anything wrong.

    I think this is a fair outcome in the circumstances, for the reasons I’ve explained. But if you decide that you don’t accept what I’ve said, then please let me know by 23 June 2017. If I can’t resolve things then an ombudsman here can look at everything again and make a final decision. If I don’t hear from you by that date we might not be able to look at your complaint again.

    Kind regards
    From my understanding and what i can see, it seems FOS do not even comprehend the legalities i have attempted to explain. I do like however have he has said they dont place any weight on the fact i was made to sign the return form, as this was a point where Mercedes tried to emphasise i signed to agree, where i was actually told that without signing i couldnt VT the car. I tried to explain that there is no specific part of the contract that explains mileage charges are enforceable under VT, on on early termination, or at the end of the contract completion. I dont believe VT is classed as early termination as it is shown as a separate part of the contract on its own. I believe the way these things are worded allows Mercedes to cleverly found themselves in these situations, when they know realistically they are not entitled to charge for excess mileage charges.

    "But the Financial Ombudsman Service’s approach is that taking reasonable care of the goods does include keeping to the agreed annual mileage – particularly if this is made clear in the contract, as it has been here. As you’ve not kept to the agreed mileage, MBFS are entitled to say the goods haven’t been reasonably looked after. So it’s fair for them to apply the relevant charges as set out in your agreement." This is part of the problem i believe, as they arent understanding this legally, merely explaining an opinion they have.

    If anyone can help me formulate a response to go back to them that would be great i have to respond before the 23rd which is only 3 days from the date i received this.

    Thanks

  17. #17
    R0b's Avatar

    VIP Member



    Joined
    Sep 2015
    Posts
    4,255
    Mentions
    711 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    I'll take a look at this later in full and try to assist you with a response - there's no guarantee but I think we need to try and keep it as simple as possible and address the relevant points so we can get real answers rather than vague ones.

    I also agree about the FOS but until a binding case comes to court, they just apply what they want. A breach of the excess mileage term does not automatically mean that the car is in an unreasonable condition - you can still go over the agreed mileage and still have the car in a reasonable condition. If the car goes 10 miles over the agreed contractual mileage does that automatically mean the car has not been reasonably looked after? Of course it doesn't!

    I'd also add that if you go to this link halfway down the page there is this comment from the FOS http://www.financial-ombudsman.org.u...and-truths.htm

    Myth: The Ombudsman ignores the law by using "fairness" to decide complaints

    It is the law itself, laid down by parliament, that requires the ombudsman to decide cases on the basis of "fairness" - while complying with the Human Rights Act.

    The principle of "fairness" lies at the heart of modern consumer-protection legislation applied in the courts - including theUnfair Contract Terms Act, the Unfair Terms in Consumer Contracts Regulations and the "unfair relationships" test in theConsumer Credit Act 2006.

    Most of the complaints we handle turn on disputes about what actually happened - or on the application of general legal principles. In most cases, our approach is based on what the courts would be likely to do in similar circumstances. But in some areas, the standards that the industry has voluntarily imposed on itself (through its codes of practice) exceed the law's requirement.


    Clearly if a court has given guidance then the above suggests that FOS would follow what the court says but they are in a world of their own these days when it comes to excess mileage complaints and they fail to explain their reasons for departing from the law.


    I'll put my comments forward later today, have a busy day today!
    DISCLAIMER: ANY CONTENT I POST IS INTENDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT A REPLACEMENT OR SUBSTITUTION FOR LEGAL ADVICE. I MAKE NO REPRESENTATIONS AS TO THE ACCURACY OF MY POSTS NOR DO I ASSUME ANY RESPONSIBILITY. USE OF ANY CONTENT IS SOLELY AT YOUR OWN RISK AND COST AND I ACCEPT NO LIABILITY. YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


  18. #18
    jonnyfeng's Avatar

    Junior Member



    Joined
    Jan 2017
    Posts
    21
    Mentions
    1 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    Really appreciate your help R0b

    I would like to try and see this all the way through, i cannot find a thread anywhere where this has gone the whole way with an outcome, and i think we need to do this to be more conclusive to everyone

  19. #19
    R0b's Avatar

    VIP Member



    Joined
    Sep 2015
    Posts
    4,255
    Mentions
    711 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    Sorry I've not had enough time to get back to you have been so busy. I've put a few pointers below as to what you could add to your arguments in response. I would suggest that you respond under the same headings listed in that email and perhaps focus on the second and fourth heading. This is always going to be a longshot because the Ombudsman are not generally legally qualified and as they look at what's fair and reasonable. It is the court's job to look at the interpretation of the law and apply it which is why sometimes you will get a better decision from the Ombudsman than a court (but not in this case).

    Happy to have a quick scan over if you post up a draft and i'll give my comments.




    • Under section 3(1) of The Consumer Credit (Agreements) Regulations 2010 it says the following:


    Documents embodying a regulated consumer credit agreement shall contain the information set out in column 2 of Schedule 1 to these Regulations in so far as that information relates to the type of agreement referred to in column 1.

    In relation to Hire Purchase or Conditional Sale Agreements, paragraph 30 of Schedule 1 requires a statement explaining (1) how and when the debtor can terminate the agreement under section 99 of the Act, and (2) the debtor’s maximum liability under section 100 of the Act.


    • It also says under section 3(4):


    Documents embodying a regulated consumer credit agreement, other than an exempted agreement, shall contain statements of the protection and remedies available to debtors under the Act, in the Form numbered in column 1 of Schedule 2 to these Regulations and set out in column 3, in so far as those statements relate to the type of agreement referred to in column 2.

    Paragraphs 9 in Schedule 2 contains the exact termination statement as set out in the contract under the heading “Termination: Your Rights”. When both sections and Schedules are read together, I think it is made quite clear that my maximum liability when I voluntarily termination under section 99 is what is set out in the statement referred to. It clearly says I will owe nothing more (emphasis added) which means just that, nothing else other than what is stated. If I was liable for excess mileage charges, then it would have been included in the statement but it isn’t and so I cannot be liable for excess mileage charges.


    • MBFS know this and have tried to insert an additional termination clause (condition 12) into the contract to try and circumvent the maximum liability set out by the CCA.



    • There is a general legal principle called the contra proferentem rule which means that if there is an ambiguous clause or it conflicts with another clause, then the it should be interpreted against the party who drafted it. There is a clear conflict between the two clauses as one limits liability and the other increases it. Applying the contra proferentem principle, the termination statement should be followed.



    • Definition of ‘condition’ in Oxford dictionary as being “The state of something with regard to its appearance, quality, or working order.” The value and condition of the car are two separate things yet this person seems to have thought of them as one. You are only required to return the car in a reasonable condition - the value of the car has nothing to do with it.



    • Refer to Brady v St Margaret’s Trust and the comment by Lord Denning:


    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.





    • Therefore, the approach suggested by the person who sent the email is wrong by making the assumption that by exceeding the agreed mileage in the contract, the car is automatically deemed to be in an unreasonable condition. The correct approach is per Lord Denning i.e. the onus is on the HP company who has to provide evidence that the hirer has failed to take reasonable care of the goods – if there is no evidence, then no damages can apply and it is wrong to make any assumption or speculate as to what condition the car might have been in without inspecting it. Ways to show the car was in a reasonable condition is the fact that it has an MOT, has been serviced regularly and repaired as is necessary. This is all that a hirer is required to do according to Lord Denning.



    • DISP 3.6.4 R requires the ombudsman to take into consideration a) laws and regulations b) regulators’ rules, guidance and standards c) codes of practice and, where appropriate, what he considers to have been good industry practice at the relevant time.



    • In R (Heather Moor and Edgecomb Ltd) v Financial Ombudsman Service [2008] EWCA Civ 642 the Court of Appeal said that the Ombudsman is "free to depart from the relevant law, but if he does so he should say so in his decision and explain why". This is a legally binding decision that the FOS must follow.



    • The CCA makes it clear about a person’s liability which is limited and if the Ombudsman is to depart from this law then following Heather Moor, the Ombudsman must explain why he or she is departing from it.
    DISCLAIMER: ANY CONTENT I POST IS INTENDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT A REPLACEMENT OR SUBSTITUTION FOR LEGAL ADVICE. I MAKE NO REPRESENTATIONS AS TO THE ACCURACY OF MY POSTS NOR DO I ASSUME ANY RESPONSIBILITY. USE OF ANY CONTENT IS SOLELY AT YOUR OWN RISK AND COST AND I ACCEPT NO LIABILITY. YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


  20. #20
    jonnyfeng's Avatar

    Junior Member



    Joined
    Jan 2017
    Posts
    21
    Mentions
    1 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    Thanks R0b,

    I really appreciate you taking the time to help out. I have formulated a response, as best i could with as little knowledge i have. I have used all the points you have set out and tried to read and understand them all which i believe i do to an extent.

    It is seeming clearer and clearer to me that this is obviously something MBFS cant claim. I find it bonkers that they are getting away with it, and the FOS is so lenient on the side of the lender. Im surprised there isn't a massive claims industry itching to get into this like the new "miss sold PPI"

    I hope you get a chance to read and respond, i know you are very busy, i do have to reply to FOS by the end of today/ tomorrow apparently.

    Thanks in advance!

    Good morning,

    I appreciate you taking your time to investigate this case for me, as you have pointed out in the points you have made in your response to my arguments, several may have been beside the dispute in question where I have vented against the industry, and not focused my complaint on my current situation. You have asked I am not satisfied with your findings, that I respond with further if I do not accept your findings. I have focused on the main points in question.


    1. Your Hire Purchase agreement doesn’t specifically state that excess mileage charges will be applied upon voluntary termination. In addition, the voluntary termination section doesn’t specifically mention excess mileage

    I’ve reviewed the hire purchase agreement and I feel that, although it doesn’t specifically mention voluntary termination on the first page of the agreement, it states that, “if you do not exercise your right to purchase the vehicle, an excess distance charge will be payable” As voluntary termination means you aren’t purchasing the vehicle, I think you should’ve reasonably known the charge would be applicable.

    This note on the first page also refers you to Condition 12 of the agreement, which states that, “If the vehicle is returned to us (whether at the end of the period of hire or on earlier termination), we will calculate the total distance travelled by the Vehicle whilst in your possession (the “Total Distance”). You will pay us a charge at the rate stated in this agreement if and to the extent that the Total Distance exceeds the allowed distance for the Vehicle.

    So, while I think it was already made clear enough on the first page, this condition leaves no room for doubt that the charge will be applicable on early termination.


    2. MBFS are going against the Consumer Credit Act by charging for excess mileage. For voluntary termination, you should be liable for 50% of the total price, which doesn’t include any compensation or damages for breaching the term of the agreement. Additionally, taking reasonable care of the vehicle doesn’t include the excess mileage.

    You’re correct that, as a customer you’re only liable for 50% of the total price upon voluntary termination – if the goods have been reasonably taken care of. But, as outlined in s.100 (4) of the Consumer Credit Act, the creditor is also entitled to charge in addition to the total price if the goods haven’t been reasonably looked after.

    I understand your opinion that mileage is separate to taking reasonable care of the vehicle. But the Financial Ombudsman Service’s approach is that taking reasonable care of the goods does include keeping to the agreed annual mileage – particularly if this is made clear in the contract, as it has been here. As you’ve not kept to the agreed mileage, MBFS are entitled to say the goods haven’t been reasonably looked after. So, it’s fair for them to apply the relevant charges as set out in your agreement.


    What I am trying my best to emphasise, is that yes, I have signed an agreement with Mercedes Benz to take on the hire purchase of a vehicle. I would argue that this is not ultimately the end of the matter, and that I need to abide to everything set out in the agreement written by them. Because this agreement contradicts the CCA as I have already stated. This is not something that can be simply sidestepped, and I would request that this is further investigated, as close to a legal point of view as possible. I feel the approach of suggesting that I signed the contract and that’s the end of that is simply avoiding all the points I have made.

    Again, to further back myself up in this argument, I have set out further points to clarify my position.


    Under section 3(1) of The Consumer Credit (Agreements) Regulations 2010 it says the following:

    Documents embodying a regulated consumer credit agreement shall contain the information set out in column 2 of Schedule 1 to these Regulations in so far as that information relates to the type of agreement referred to in column 1.

    In relation to Hire Purchase or Conditional Sale Agreements, paragraph 30 of Schedule 1 requires a statement explaining (1) how and when the debtor can terminate the agreement under section 99 of the Act, and (2) the debtor’s maximum liability under section 100 of the Act.

    It also says under section 3(4):

    Documents embodying a regulated consumer credit agreement, other than an exempted agreement, shall contain statements of the protection and remedies available to debtors under the Act, in the Form numbered in column 1 of Schedule 2 to these Regulations and set out in column 3, in so far as those statements relate to the type of agreement referred to in column 2.

    Paragraphs 9 in Schedule 2 contains the exact termination statement as set out in the contract under the heading “Termination: Your Rights”. When both sections and Schedules are read together, I think it is made quite clear that my maximum liability when I voluntarily termination under section 99 is what is set out in the statement referred to. It clearly says I will owe nothing more (emphasis added) which means just that, nothing else other than what is stated. If I was liable for excess mileage charges, then it would have been included in the statement but it isn’t and so I cannot be liable for excess mileage charges.

    I’m assuming MBFS know this and have tried to insert an additional termination clause (condition 12) into the contract to try and circumvent the maximum liability set out by the CCA.


    There is a general legal principle called the contra proferentem rule which means that if there is an ambiguous clause or it conflicts with another clause, then the it should be interpreted against the party who drafted it. There is a clear conflict between the two clauses as one limits liability and the other increases it. Applying the contra proferentem principle, the termination statement should be followed.


    Definition of ‘condition’ in Oxford dictionary as being “The state of something with regard to its appearance, quality, or working order.” The value and condition of the car are two separate things yet this person seems to have thought of them as one. You are only required to return the car in a reasonable condition - the value of the car has nothing to do with it.



    In reference to Brady v St Margaret’s Trust and the comment by Lord Denning:


    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 like to refer you to this link
    http://www.financial-ombudsman.org.u...and-truths.htm

    This tells me that the approach taken by the FOS is based on what the courts would likely do in similar circumstances.

    I feel the approach I have received is incorrect, assuming that exceeding the agreed mileage in the contract is automatically deeming the car in unreasonable condition.

    The correct approach is per Lord Denning i.e. the onus is on the HP company who must provide evidence that the hirer has failed to take reasonable care of the goods – if there is no evidence, then no damages can apply and it is wrong to make any assumption or speculate as to what condition the car might have been in without inspecting it. Ways to show the car was in a reasonable condition is the fact that it has an MOT, has been serviced regularly and repaired as is necessary. This is all that a hirer is required to do according to Lord Denning.



    DISP 3.6.4 R requires the ombudsman to take into consideration a) laws and regulations b) regulators’ rules, guidance and standards c) codes of practice and, where appropriate, what he considers having been good industry practice at the relevant time.

    In R (Heather Moor and Edgecomb Ltd) v Financial Ombudsman Service [2008] EWCA Civ 642 the Court of Appeal said that the Ombudsman is "free to depart from the relevant law, but if he does so he should say so in his decision and explain why". This is a legally binding decision that the FOS must follow.

    The CCA makes it clear about a person’s liability which is limited and if the Ombudsman is to depart from this law then following Heather Moor, the Ombudsman must explain why he or she is departing from it.


    I would ask that all the points I have made in relation to your previous response are further considered. I feel very strongly that everything I have suggested so far, I have backed up with evidence to show that in this case, as a consumer I am protected by the CCA, I have exercised my right to VT the car and have followed all the correct guidelines in accordance to the act.

    I look forwards to receiving your further findings

    Sincerely



  21. #21
    R0b's Avatar

    VIP Member



    Joined
    Sep 2015
    Posts
    4,255
    Mentions
    711 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    I'll try and take a look over lunch if I can, if not later tonight. I remember when I complained to the Ombudsman they gave me an extension because I said that a couple of days was too short. Maybe drop the person an email and ask for an extension until Monday 26 June so you can consider his/her comments and formulate a proper response.
    DISCLAIMER: ANY CONTENT I POST IS INTENDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT A REPLACEMENT OR SUBSTITUTION FOR LEGAL ADVICE. I MAKE NO REPRESENTATIONS AS TO THE ACCURACY OF MY POSTS NOR DO I ASSUME ANY RESPONSIBILITY. USE OF ANY CONTENT IS SOLELY AT YOUR OWN RISK AND COST AND I ACCEPT NO LIABILITY. YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


  22. #22
    jonnyfeng's Avatar

    Junior Member



    Joined
    Jan 2017
    Posts
    21
    Mentions
    1 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    I emailed FOS and they have honoured an extension till Monday, Thanks again R0b

  23. #23
    R0b's Avatar

    VIP Member



    Joined
    Sep 2015
    Posts
    4,255
    Mentions
    711 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    Hi Jonny,

    I've re-arranged what you've said below but it is my view of things and an example of what you could say. It may be a case that the Ombudsman sticks to their guns and won't change their view but at least you can say that you've tried your best, and even if it doesn't go your way then you do not have to accept their decision and it is up to MBFS to pursue an action in court for the excess mileage.


    I appreciate you taking your time to investigate this case for me, as you have pointed out in the points you have made in your response to my arguments, several may have been beside the dispute in question where I have vented against the industry, and not focused my complaint on my current situation. You have asked I am not satisfied with your findings and I would like to respond as follows

    1. The maximum liability when terminating under section 99 of the CCA (Voluntary Termination)

    The Consumer Credit Act 1974 sets out both the debtor and creditor’s rights and remedies under regulated agreements.
    Section 100 of the CCA says:

    Where a regulated hire-purchase or regulated conditional sale agreement is terminated under section 99 the debtor shall be liable, unless the agreement provides for a smaller payment, or does not provide for any payment, to pay to the creditor the amount (if any) by which one-half of the total price exceeds the aggregate of the sums paid and the sums due in respect of the total price immediately before the termination (emphasis added).

    Section 189 defines 'total price' as:

    the total sum payable by the debtor under a hire-purchase agreement or a conditional sale agreement, including any sum payable on the exercise of an option to purchase, but excluding any sum payable as a penalty or as compensation or damages for a breach of the agreement
    (emphasis added).

    The Consumer Credit (Agreements) Regulations 2010 contains details as to what creditors must include in a regulated agreement dependent on the type of agreement entered into. In particular:

    (a) section 3(1) states:

    Documents embodying a regulated consumer credit agreement shall contain the information set out in column 2 of Schedule 1 to these Regulations in so far as that information relates to the type of agreement referred to in column 1.

    (b) Paragraph 30 of Schedule 1 (see image below), it says that hire purchase or conditional sale agreements.

    Comments

    From the above legislation, the statement “Termination: Your rights” therefore sets out the maximum liability under the contract when I terminate early in accordance with section 99 e.g. 50% of the total amount payable. It also says that provided I meet the criteria, I will pay nothing more. I think that is undoubtedly clear that it does not include excess mileage charges otherwise if I was liable for such charges, then it would have been made explicitly clear in the statement.

    MBFS know this and have tried to insert an additional termination clause (condition 12) into the contract to try and circumvent the maximum liability set out by the CCA.

    There is a general legal principle called the contra proferentem rule which means that if there is an ambiguous clause or it conflicts with another clause, then the it should be interpreted against the party who drafted it. There is a clear conflict between the two clauses as one limits liability and the other increases it. Applying the contra proferentem principle, the termination statement should be followed.

    2. Vehicle damage

    You said in your email, “the Financial Ombudsman Service’s approach is that taking reasonable care of the goods does include keeping to the agreed annual mileage – particularly if this is made clear in the contract, as it has been here.” For the reasons below, it is my contention that such an approach is not only the wrong approach but flawed.

    (a) First of all, the value of the car and the condition are two separate issues. Section 100(4) only concerns itself with the ‘condition’ of the car. The Oxford Dictionary defines ‘condition’ as “The state of something with regard to its appearance, quality, or working order”. It is therefore wrong to base your decision simply on the car’s resale value and the approach you seem to suggest means that if the car exceeds the agreed mileage by even 10 miles, then it is automatically assumed (without evidence to the contrary) that the car is in an unreasonable condition.

    In response to that position, I would like to refer to you a Court of Appeal case, Brady v St Margaret’s Trust [1963] 2 Q.B. 494, the Court had to decide the question of reasonable condition. Lord Denning (at page. 500) said:

    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.

    (b) I would also like to refer you to a publication by the FOS (Issue 91, myths and truths about the ombudsman service, http://www.financial-ombudsman.org.u...and-truths.htm) where it suggested one of the myths was that the “Ombudsman ignores the law by using “fairness” to decide complaints”.

    In response by the FOS, it confirmed that “In most cases, our approach is based on what the courts would be likely to do in similar circumstances.

    Furthermore, I also refer to another Court of Appeal case, R (Heather Moor & Edgecomb Ltd) v FOS[2008] EWCA Civ 642. Lord Justice Stanley Burton commented (para. 49 of the judgment) that DISP 3.6.4 allows an Ombudsman to “to depart from the relevant law, but if he does so he should say so in his decision and explain why”. This is a legally binding decision on the FOS and they must comply with it, failing to do so means they are in breach.

    Comments

    As you can see from the above, the correct approach taken by the FOS is to follow what the courts would likely do in similar circumstances and therefore the approach you referred to you in your email must be wrong. The correct approach should be that of Lord Denning i.e. if MBFS is going to allege that the excess mileage means the car is not in a reasonable condition, then they must back up that assertion with evidence.

    Neither the Ombudsman nor MBFS can speculate whether or not the excess mileage caused damage. In fact, I would say that I took reasonable care of the car which was what was expected of me e.g. servicing the car, repairs, MOT etc.

    Conclusion

    In summary, I would ask that you reconsider your decision in light of the above information in that MBFS has supplied no evidence. However, if you believe that your decision is the correct one, then I would ask you to explain why you have departed from the CCA and legally binding case law and provide any evidence given to you by MBFS to support that decision.

    Note: I have attached the relevant legislation and case law I mention above, highlighted for your convenience.

    DISCLAIMER: ANY CONTENT I POST IS INTENDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT A REPLACEMENT OR SUBSTITUTION FOR LEGAL ADVICE. I MAKE NO REPRESENTATIONS AS TO THE ACCURACY OF MY POSTS NOR DO I ASSUME ANY RESPONSIBILITY. USE OF ANY CONTENT IS SOLELY AT YOUR OWN RISK AND COST AND I ACCEPT NO LIABILITY. YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


  24. #24
    R0b's Avatar

    VIP Member



    Joined
    Sep 2015
    Posts
    4,255
    Mentions
    711 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    Attached case law and relevant provisions of CCA highlighted sections too.
    DISCLAIMER: ANY CONTENT I POST IS INTENDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT A REPLACEMENT OR SUBSTITUTION FOR LEGAL ADVICE. I MAKE NO REPRESENTATIONS AS TO THE ACCURACY OF MY POSTS NOR DO I ASSUME ANY RESPONSIBILITY. USE OF ANY CONTENT IS SOLELY AT YOUR OWN RISK AND COST AND I ACCEPT NO LIABILITY. YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


  25. #25
    jonnyfeng's Avatar

    Junior Member



    Joined
    Jan 2017
    Posts
    21
    Mentions
    1 Post(s)

    Default Re: Mercedes Benz - Ridiculous back and forth VT situation

    Thanks R0b,

    I have sent this over to them, and i am awaiting a response, can we assume out of stubborness they will stick to there guns? Its quite interstesting this whole process. I feel i am learing a huge amount along the way.

    I have to say again, thanks for taking the time, i know i am not the only person you are offering advice to on this basis. I know you want to see this put right as much as us individuals.

    Il be back once i have a response!

Page 1 of 2 12 LastLast

Similar Threads

  1. The most ridiculous situation ever!
    By wesd25 in forum Business, Sole Traders & SME's
    Replies: 4
    : 5th July 2015, 23:04:PM
  2. Advice needed on ending HP agreement with Mercedes Benz
    By Pignbroke in forum Vehicle Finance and Issues
    Replies: 1
    : 18th March 2015, 20:01:PM
  3. SCAM & FRAUD on EBAY UK : 2008 Mercedes-Benz C Class C220 CDI Sport Mercedes Benz - c
    By Buster Jack in forum Scam Listings on Ebay, Gumtree and Autotrader
    Replies: 0
    : 2nd August 2014, 15:50:PM
  4. Discrimination by Mercedes Benz finance when discovred I was to VT current car
    By doubledenim in forum Vehicle Finance and Issues
    Replies: 7
    : 21st September 2013, 22:30:PM
  5. Replies: 0
    : 28th June 2012, 06:01:AM

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  
Contact Us



© Celame (UK) Ltd 2017
LegalBeagles® are DPA Registered No. ZA158014
LegalBeagles® is the trading name of CELAME (UK) LIMITED ( 09220332 )
Registered Address: 25 Moorgate, London, England, EC2R 6AY
VAT registration number 206 9740 02
User Alert System provided by Advanced User Tagging v3.1.3 (Lite) - vBulletin Mods & Addons Copyright © 2017 DragonByte Technologies Ltd.
Feedback Buttons provided by Advanced Post Thanks / Like (Lite) - vBulletin Mods & Addons Copyright © 2017 DragonByte Technologies Ltd. Runs best on HiVelocity Hosting.
Celame (UK) Ltd Powered by vBulletin® Version 4.2.3
Copyright © 2017 vBulletin Solutions, Inc. All rights reserved.

To find out more about managing your money and getting free advice, visit the Money Advice Service,an independent service set up to help people manage their money.

TOP