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I have had massive issues with my BMW and have recieved a final response from the finance company. As such I have decided to take legal action.
Below are my work in progress POC if anybody can advise me if I am on the right lines please feel free.
Thanks in advance.
1. On the the Claimant entered into a Hire Purchase Agreement with BMW Financial Services Ltd at the business premises of , relating to a vehicle bearing the registration , a BMW , the purchase price of which was £.
2. The Supply of Goods and Services (implied terms) Act 1973 (as amended) did imply terms into the Hire Purchase agreement as to the the quality of the vehicle referenced above. This includes that the car will be of satisfactory quality and would be fit for the purpose stated which was a high mileage car used for work as an Account Manager,
3. In April 2009 the Claimant reported to that the handbrake failed to hold the car on a hill. They attempted repair which seemed to alleviate the issue for a short time and that there was a clutch judder and was told to await a repair. At this time also the steering rack failed and had to be replaced.
4. In August 2009 the Claimant reported that the clutch judder and handbrake had worsened and that the car had developed a creak from the drivers seat as well as a fault with the rear brakes. The car was returned to me as having found no faults.
5. In September 2009 the Claimant became aware of the recourse to BMW Financial Services Ltd and and made a complaint to them. The car was road tested by a Master Technician at who confirmed that the car was faulty.
6. The existence of the faults and the regularity of the faults occurring means that the car does not comply with the terms implied into the Hire Purchase agreement with reference to satisfactory quality and fitness for purpose, as such the Defendant is in breach of contract.
7. The Claimant is entitled to rescind the agreement because of the breach of contract.
8. Alternatively, the Claimant has suffered Loss and Damage due to the breach of contract
AND THE CLAIMANT CLAIMS
1. The monies paid under this contract £.
2. Alternatively damages for breach of contract.
3. interest in accordance with section 69 of the County Courts Act 1984.
4. Costs.
Ahem! have you written to them ( dealer and HP co., its their car ) about these defects? what response did you get? You need to do this before considering court action. They must be given an opportunity to fully respond in writing.
Then if you are not satisfied you need either to get it repaired elsewhere and sue the dealer for the repairs. Or reject the car and ask deaker/HP to refund all monies; if you do this you must not use the car again. depending on response you could then sue the dealer and the HP co.( do both to be on the safe side.)
Of course I have written to the HP company complained to the dealer on numerous occasions. I have recieved the final response from the HP company which was unsatisfactory.
Although my original complaint to the HP company asking for replacment or money back did not mention rejection they have written back rejecting my rejection.
The Dealer has attempted to fix one of the issues on numerous occasions and as such I have given them every opportunity to sort out the problems the other issues have just been ignored.
I am taking the car back to Sytner Oldbury on Monday with copies of all correspondance and a letter explaining my rejection.
I really could do with not making any errors in the POC and the case being struck out at the first hurdle though.
The dealer has offered to buy the car back, can I sell it back to him and then sue the HP company for additional losses due to breach of contract or would the selling back be seen as affirming the contract?
Relevant legislation - Sale of Goods Act 1979. Supply of Goods and Services Act 1982.
You need to stae that you have formally rejected it, returned it.
The dealer cant buy back the car, it belongs to the HP co. and you acnt sell it to them unless you all come to some agreement/arrangement.
Also you should sue both of them.
I am sure somebody with more court knowledge will be able to advise further.
What court/route are going to use?
Sorry what I meant is the dealer can buy the car by settling the finance and paying me the equity back that I have in the car.
Unsure of the route ideally woulld like them to take car back (as above) then will sue in small claims for damages.
If allowing the dealer to settle the finance would prejudice my case I will simply leave car at dealer and lodge proceedings at my local court to rescind the contract. Only issue is the claim would be just shy of £10,000 doing it this way.
Yes I believe it would prejudice any claim as you have accepted a deal, You would have to make it clear to the dealer that when accepting the exchange car you would be taking them to court for the remaider, otherwise 'estoppel' would apply. ie you cant go back on previusly agreed settlement.
I think it is take them to court for it all or accept the deal.
I will leave the car with the dealer tomorrow then I will issue lba if they do not accept rejection then.
There is no exchange for another going to happen, the finance company did not offer this only suggested that the dealer might consider it and washed their hands of the matter.
All this fighting to get a just outcome, Now they will have court costs as well.
Update: BMW financial have attempted to stall proceedings on the basis of offering negotiations then just offering the same old rubbish (i.e trade car in) meaning I loose £5000.
I left the car at the dealership with notices in it saying that the car was faulty and rejected and they towed it away??? (no signs up saying parking on their property could result in towing) must have been too embarrasing.
What do I have to do to get a just result? BMW financial keep telling me they don't want litigation but are not willing to accept that the car is faulty (even though master tech has put in writing that it is faulty!!!) if BMW Fin have no liability why don't they want to go to court?
Moral of the story please beware if you want to buy a BMW, very nice to you when taking your money but only nice to your face when there is a problem!!!
BMW Financial Services
if anybody can advise me if I am on the right lines please feel free.
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