GMAC or is it Online Finance?

[Kerrie78]

Hi all. I'm new today and I have just been guided over here by a helper to start a new thread.
I have already had successful claims from Clydesdale Bank who paid us almost in full, and also Abbey Credit Card (MBNA) who paid us extra! We asked for £1,222.00 but they refunded us £1230.00 so I'm not toally new to this process but just to this site (and may I say how great it is).

In January 2001 we purchased a car from Carcraft. The advertisement in the newspaper said 7.9% APR and this is what was verbally agreed as we were looking. However, the next day when my husband went back to sign the contract and pick up the car (he stupidly didn't check because he was late for work) the contract had been amended to 27.9%APR. We queried this but was told that the advertisement was not for all circumstances and we didn't meet those circumstances, that's why ours was higher.
We plodded on, cos we really needed the car, and we kept up the repayments until in April 03 my husband was made redundant and that's when the charges started. Each time they sent us a letter they charged £130.00 admin costs, plus £15.00 for the cost of the letter. Is this lawful or not?
On July 25th I sent a letter requesting a list of all charges applied to the account since it was opened. They cashed the cheque on August 2nd but have sent nothing. Despite 3 phone calls, and a month and a half later I am still no further forward. They have the letter and they keep saying the data will be sent but it just isnt. What should I do now.


Also we have always made our payments to Online Finance and that is where the letters all came from, but I went to email them last month to find they have now changed name to GMAC. We were given no notice of this, and our payments are still made payable via DD to Online Finance???

I am keen to get this sorted because we have only got 3 weeks left until the finance agreement is paid in full (yipppeeeeee) even though it has cost us over £15,000 for a bloomin Nissan!

Sorry it was long winded but I like to give all the facts.

[Kerrie78]

Hi again guys. Any idea on what to do next? If my finance agreement is paid off before they have even started looking at my claim are they still entitled to refund me? They are taking sooo long to send the statements that I really need to get this sorted out. I have no idea even approximately at how much we have been charged over the last 6 years.
Thanks

[spartagates]

When you sent the £10, did you use the Data Protection Act letter template? If so, when is the 40 days up? If it is up, I would send the final warning letter requesting information or you will make a complaint to the information commisioner. I wouldn't worry about getting things done before the end of the agreement, as you will still get the money back reguardless. I have noticed online/gmac (online where always part of the Gmac group- an american based company who are quite aggressive when accounts go wrong in ways of recouping the money plus terribly high charges) aggressively defend their charges, so be prepared as this claim may not be as straight forward as your previous two.

[Kerrie78]

Yes I used the Data Protection Act letter template. It was posted on 29/07 and signed for on 31/07. Cheque was cashed on 04/08 (double checked date) so 40 days from obtaining my money was Wednesday 13th Sept.
I'm pleased that it doesn't have to be before the end of the contract because I am prepared for a lengthy battle. Their charges are extortionate, how can anybody justify charging £130 admin cost plus £15 letter cost on the same letter?
This is in my husbands name but he is willing to go all the way to court if neccessary. We wanted to confirm first that we were actually entitled to claim the charges back because this whole OFT thing seems to omit anything about HP finance, it is all about mortgages, store cards, banks and CC's.
I actually opened another thread just to see if anybody else is dealing with this company because I only saw one person mention it but it was a mortgage claim.

[andyinlondon]

stick with it Kerrie. we are all in it together, i am about to hit them for charges on a mortgage, but the same principles apply.

[chilli50]

hi. my boyfriend has a car on hp with online. he has also been charged their extortionate rates and fully intends to take them to court. an interesting point for you though. when he last went into arrears, they put his payments up by 75 pounds a month. then this site came to light. the last agreement was only for 3 months and didnt clear the arrears so they tried their scare tactics on him again threatening to take him to court etc. the guy who he had made an arrangement with for the company called on the phone and when my boyfriend answered he tried to get him to agree to the same payment. i have trawled this site for a few months now and know that people cant be intimidated into paying large amounts towards their arrears,they only have to make an offer that they can reasonably afford. so i advised my boyfriend to tell them he was only going to pay them an extra 25 a month. he agreed with this. this was because he knew he owed this money on the car. he then asked the guy to tell him how much he owed and how much of that was actually charges. the guy refused to say on the charges but that the total inc charges was circa 375. my bf said that he would not pay the charges, only the amount owed. obviously this wasnt agreeable to the guy and he said that on line would take my partner to court. my bf said go ahead then. the guy from on line said he would put my bf's proposal forward and would call him the next day to let him know the outcome. amazingly they agreed and said that the agreement would last 3 months. this works out at my bf only being 75 in arrears. it just shows that sometimes it pays to be a bit more pushy with these people. anyway, i will open a new thread so that the challenge can be followed. good luck
ps sorry for hijacking your thread

[Kerrie78]

Finally got the list of "charges" this morning. They haven't included any of the admin charges, just the letter ones. And everything is totally coded so I cannot make head nor tail of it.
Anyone know what these are:
MLA, WOF, OTF, PAY,

Husband has phoned as asked for a "full" list of charges including the admin ones.
This has taken almost 2 months already and I feel I am banging my head against a brick wall!

Also today, received a second letter from them stating that if we want any info then we need to send them £10. (urr would this be the £10 you cashed on Aug 4th???)
Ar$e and elbow springs to mind.

[Kerrie78]

Would it be acceptable to send a prelim letterto GMAC stating an estimated claim. This is due to the fact that they have messed me about for over 2 months. I have got their 'breakdown of charges' and as they have made it as difficult as possible to follow, all I can assume at this point is that there are 21 charges for letters at £15 a time, but as I have two of these letters still in the cupboard I know for a fact that they come with admin costs of between £133 and £148 per time aswell.
Would I therefore be okay to state I am claiming 21 x £15.00 and also split the admin charges at 10 x £148 and 11 at £133.00 and see what they say to that??

It's just that if it gets to court and I have no paperwork how can I progress?

[Kerrie78]

Can anyone advise please???

I have read in the templates library about filing a court claim (the alanfromderby non compliance thread) which says to file a court claim but put that you need the particulars from the bank. Would this be the same but that I need the particulars of the claim from Online??
I also read that because it is a hire purchase agreement they cannot be enforced to give me the info, is this correct?

thanks

[spartagates]

Have you tried phoning them and asking them to explain each of the abbrieviations? May help clear it up. If they refuse, take the name of the operator, time etc and inform them that they will be cited in any court action as be un-cooperative and that you will now make a formal compliant to the infomation commisioner as they have not fullfilled the Data Protection Act request and you have been patient enough, and make the complaint to the Info Commisioner. I would, as you suggested, make an estimate and get started with the prelim; you can amend later if they decide to play ball; if they don't play, no matter, you have been more than reasonable and a judge would surely side with yourself.

[Kerrie78]

Would somebody please be really kind and amend the letter I have drafted, some bits are from other templates, but I need to know it is acceptable. (Sorry it's a bit long!)::::

AddressXXXXXXX

Customer Account Reference - XXX
Mr Sean Lyne,
With regards to your letter dated 21st September I can confirm that the Subject Access Request dated 26th July was received and signed for by On:line Finance on July 31st. My cheque of £10.00 was subsequently cashed on August 4th.
Three telephone calls were made, two of which were answered by Matthew, to find out if the information had been posted, and each time I was told that it had been sent. However, no documents arrived at this address.
A non-compliance letter dated 15th September was received and signed for by On:line Finance on 19th September. Finally on 26th September a statement of charges arrived at my address. This was however, incomplete, and is unfit for the purpose due to the lack of information. It gives a small breakdown of letter charges, but no administration charges which were applied to my account have been recorded. I have copies of two letters, one of which has administration charges of £133.00 added to the account, and the other has £148.00 added to the account. Both of these figures are not mentioned on the statement of charges that I received.
Also, on September 26th I received a seperate letter, signed by yourself, stating that if I was requesting a full copy of my file agreement then a charge of £10.00 would need to be made and could I contact yourself or your colleague to confirm the fee could be taken. I therefore telephoned on the 26th to find that you were on a week long break so I spoke to a colleague who yet again failed to co-operate by saying that "administration charges were not a charge".
I am writing to ask you to refund to me the charges which you have levied from my account over the last 6 years.
I now understand that the regime of fees which you have been applying to my account are unlawful at Common Law, Statute and recent consumer regulations. If you say that they are not, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs.
Additionally, it has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.
I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them.
Your concealment of the true nature of your charges has prevented me from asserting my right until now.

The breakdown of administration fees has been split between the two figures of £133.00 and £148.00 which are the two figures that I was charged. From the statement of charges I see that I have paid 21 letter charges at £15.00 each since my account was opened, therefore I calculate that I have also paid 21 sets of administration charges. If you would like to provide me with a correct figure of charges that has been applied to my account I will be more than willing to amend the claim.

As your company has proved obstructive at every level I now have no alternative but to issue a 7 day deadline as of the date of this letter,to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment.

If you do not respond, or you do not respond positively, within this time period, I shall send you a letter before action giving you a further 7 days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

After that, there will be no further communication from me and I shall issue a claim at the expiry of the second deadline.

Yours faithfully

[Kerrie78]

Can anyone advise pleeease regarding the post above.
Thanks

[jonni2bad]

Hi Kerrie

This seems OK to me. Please remember though that I have no formal legal training! The almalgamation of different letters seem to have significance in your circumstances.

I would say, however, that if they have been less than forthcoming in the past, you might be better to make this an LBA and give 7 days before forcing this through court.

[Kerrie78]

WOW my kick up the bum letter really did work!! I posted it on October 9th, they received it on the 10th and they sent me a letter back which I have just received. Okay it isn't good news but at least it was quick! Here is a copy of the reply, I'm really stumped as to where to go now:

Dear Mr XX
Thank you for your letter, the contents of which have been noted. I am writing to clarify our position on these charges, and also to explain where these charges come from. You seem to be under the impression that you have been charged twice, for letters and administration fees, this is incorrect, as per copy of charges enclosed. The £118.00 you refer to, in your letter, is an accumulation of charges, as highlighted, not just 1 administration charge fee, every time we send any letters, or if any direct debits fail. These additional charges are added to previous charges, so on every letter sent, it will show the full amount owing but as stated they are an accumulation of all the charges.
Regarding the changes in law, the new OFT regulations relate only to a £12.00 limit on default charges incurred by misuse of credit cards. The agreement you entered into with us, was a conditional sale agreement regulated by the Consumer Credit Act 1974 which was inclusive of clauses whereby you agreed to indemnify us for any costs incurred (Clause 5.3 attached).
A tariff of these charges would have been included within your 'Welcome Pack' at the beginning of your agreement.
We must therefore aver that you have agreed to pay these charges from the outset and thus do not accept your claim for re-imbursement.

Yours sincerely

XX

Any ideas if I now have a claim or not?? I thought it included store cards, or any institution that provides a financial service.

[andyinlondon]

it looks like a standard fob off letter.

i would just ignore it and carry on with your timetable.

the banks use similar waffle letters too

cheers

Andy

[Kerrie78]

Hi,
It is probably a standard letter but the lady actually enclosed another statement of charges, and she had made a point of highlighting the charges, and also in telling me that the admin fees were accrued each month a letter was sent - not one for every month. I'm still unsure as to how many admin charges I have paid now, because the statement shows 20 letter charges at £15 either let1w, let2w, or let3w and there is one DDR at £30 which I know from my bank statement was a returned direct debit.
The statement just also shows the balance after each payment has been made, but it doesn't give a breakdown as to how much was our actual payment and how much was extra for charges.
I think I will just claim for the 20 letter charges and 1 DD charge. makes it about £330 plus interest at 25.65%. It doesn't seem much to say that we have been paying £65 per week since January 2001!
This friday is actually my last payment of £55.35 to clear the finance - unless they decide to add any thing else on the end.

[Kerrie78]

Quick update. This one has kind of fallen behind as my husband has been quite ill so I've let things slip a bit.
Friday 20th Oct - paid the final £55.35 and asked for a statement of Account - got that sent and it shows balance of £0.00 (wooohoooooo)!!!
Attached to the back was a statement of charges, explanations as to why etc, total charges come to £588.00 since the agreement was opened. However, £148.00 of charges are still outstanding (which they aren't getting) so they owe me £440.00. So the actual car account is clear but there are charges remaining. I've drafted a letter (nicked bits from here, there and everywhere): Hope it's okay

Address

Their Address

Dear Mrs V Evans

Re: Your refusal to refund charges for (removed)
On October 20th the final installment from my Car Finance Agreement was taken from my bank account. I was subsequently issued with a Statement Of Account which shows a balance of £0.00. However, attached to that Statement was a further document entitled Statement Of Charges, this lists all charges applied to my account since signing the agreement and shows an outstanding balance of £148.00. I am therefore writing to request that the outstanding charges are waived. And also, additional charges of £440.00 which have already been paid are returned to me.

I understand that the said charges are in all likelihood disproportionate to the costs that you would actually incur for sending a computer generated letter, returning a payment etc. As such, this penalty is unlawful at Common Law, Statute and recent consumer regulations and would constitute a penalty under the Unfair Terms in Consumer Contracts legislation. Such disproportionate charges are considered to be unfair per se by the OFT who reported on 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

If you believe that the charges are proportionate to the costs you have incurred, could you please demonstrate this by providing a full breakdown of those costs or a pre-estimate of your losses. Please note that I do not require an explanation as to why these charges were made; I am fully aware of the terms and conditions of my finance agreement. What I require is a breakdown of your costs in order to reassure me that the charges are justified.

Having taken legal advice on this matter it is very clear, as you will no doubt be aware, that English contract law requires such charges to be a genuine pre-estimate of your losses. In the case of Castaneda and Others v Clydebank Engineering and Shipbuilding Co Ltd., (1902) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract as opposed to a charge which represents a penalty. This was upheld in the case of Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. In addition to this, your charges would represent an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SL. 1999/2083). Your charges would constitute an unfair penalty under Schedule 2 of the said regulations which provide an indicative and non-exhaustive list of terms which may be regarded as unfair. Under paragraph 1(e) of schedule 2 this specifically includes terms which have the object of requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation.

I would also like to bring to your attention the following statement by the Office of Fair Trading:

The OFT now expects all credit card issuers to recalculate their default charges in line with the principles set out in a statement published today and to take urgent action where needed to reduce the level of credit card default fees. The industry has until 31 May to respond to the statement. These principles also apply to default charges in other consumer contracts such as those for bank overdrafts, store cards and mortgages.

The fact that I signed the finance agreement containing the tariff of charges does not make them enforceable, as I’m sure your legal department are fully aware.

I would also like to advise that if you do not accept my request then you will leave me with no alternative but to seek redress through the Courts.

I trust this can be sorted out quite amicably and I look forward to your earliest response.

Thank-you for your help and co-operation in this matter.


Yours faithfully,