Illegal Contract Extension

[barryjohn]

I had a two year contract with a car leasing company. The contract term was ended and a collection was confirmed. But the day before the collection, they informed me that, because of a missing payment, the collection was cancelled and the contract was put on an "informal extension". They also said I would be liable for the rental charges of the "extended" period.

It is true that the last month's payment didn't go through, but I was not aware of it and they didn't mention it at all even when I confirmed the collection date with them. I feel angry with their behaviour, in particular on the cancellation of the collection and the so-called "informal extension", so I refused to pay. Then they continued to bill me for the "extended" months and recorded a "Default" in my credit files.

I checked my contract with them, and there are no terms of the so-called "informal extension". I believe it is illegal to extend a contract without the agreement of the other party, so I plan to take them to the court. I wonder if anyone could advise which regulations and relevant terms are applicable to my case?

Many thanks in anticipation!

[Alloyz1]

Has the last payment been made now?

 

Has the car been collected?

 

Why do you need regulations? You had an agreement and they are the only terms you need. There will have been a provision for a missed payment i.e. they send a default letter and you pay up, or something similar. If it was an 'informal extension' then so be it. If it wasn't ask them what is going on and explain the provision laid down for a missed payment.

 

A

[barryjohn]

Thanks for the reply, Alloyz1!

 

They collected the car six weeks later only after I warned them that I would report to the DVLA for an unattended vehicle. But they insisted that I pay the last month rental (missing one) plus those for the so-called "informal extension", and this is the total amount they recorded for the "Default" on my credit files. I haven't paid any of these.

 

I feel it can't be right like this, otherwise they can simply find a reason and dump a car with their customers and charge forever. Or I have been naive?

[Alloyz1]

Why do you need regulations? You had an agreement and they are the only terms you need. There will have been a provision for a missed payment i.e. they send a default letter and you pay up, or something similar. If it was an 'informal extension' then so be it. If it wasn't ask them what is going on and explain the provision laid down for a missed payment.

 

You just need to look at my statement above and it seems fairly straight forward

[barryjohn]

Sorry, Alloyz1. I don't quite understand your post - please be patient with me.

 

They did send a default notice, but it was for ~£500 not the initial ~£200. Now it ended with a stand-off. They (1) recorded a "Default" on my credit files (at least with Experian, maybe with other credit agencies as well); and (2) demanded a payment of ~£500 instead of ~£200.

 

BTW, all the monthly payments were by Direct Debit. I don't how the last payment didn't go through.

 

Your advice is highly appreciated!

[rebel11]

Hi barryjohn

 

Contact your bank, find out why the last Direct Debit didn't go through, it might be the company's fault.

 

Just because a contract has terms, doesn't mean it's fair.

 

http://www.adviceguide.org.uk/wales/consumer_w/consumer_protection_for_the_consumer_e/consumer_contracts_e/unfair_terms_in_consumer_contracts.htm

[Alloyz1]

Sorry, Alloyz1. I don't quite understand your post - please be patient with me.

 

They did send a default notice, but it was for ~£500 not the initial ~£200. Now it ended with a stand-off. They (1) recorded a "Default" on my credit files (at least with Experian, maybe with other credit agencies as well); and (2) demanded a payment of ~£500 instead of ~£200.

 

BTW, all the monthly payments were by Direct Debit. I don't how the last payment didn't go through.

 

Your advice is highly appreciated!

 

Hi BJ...

 

No problem, I wasn't being funny! Just trying to make it simple.

 

If there was an agreement, there should be a part of that agreement that covers default. Does that part mention anything about an 'informal extension'. Or should they have taken a different approach?

 

As Rebel rightly points out, once you establish what they should or shouldn't have done, you may want to then look at how fair the terms re default were.

 

Hope that helps

 

A

[rebel11]

Once you've done your research, write a Formal Letter of Complaint, mark it as such, send it Recorded Delivery. If they don't resolve your issue and you receive a final response from them, you can ask the FOS to look into your complaint, you don't pay anything, the company pays the FOS's fees.

[barryjohn]

Thanks to all of you - you are very kind!

 

There are no terms to support the so-called "informal extension" in the contract. There is indeed a clause on default, but ironically it states that they have the right to "terminate" the contract immediately instead of "extending" it.

 

I have already made a formal complaint to them and received a "final response" immediately from them on the same day.

 

Also, I made a complaint to the FOS. But in the telephone discussion, the (obviously inexperienced) adjudicator said she felt the leasing company had the right to extend the contract because I owed them money! She even asked me provide terms of regulations to justify why they couldn't do so?! Actually this was one of the reasons I came here to ask for help.

 

The FOS case is still on-going. But after reading many disappointing posts on this forum regarding the incompetence of FOS, I wonder if I should take legal action instead of wasting months of time with FOS?

 

Any advice would be highly appreciated!

[steampowered]

What does the contract say should happen at the end regarding collection of the car? Does it contain an obligation on the lease company to collect the car?

[barryjohn]

Thanks for the help, steampowered! I believe they are in breach of clause 10.1 in the T&Cs, but I copied the complete section on vehicle return just in case I have missed anything.

 

10 Return, Inspection and Condition of a Vehicle

10.1 Upon the expiration or on the termination of the Term or any Extended Term of the Schedule you must notify us when and where the Vehicle will be available for collection. Our collection agent will use its best endeavours to collect the Vehicle no later than the 3rd working day following the date on which we receive your notification that the Vehicle is available for collection.

10.2 If our collection agent attends to collect the Vehicle and for any reason the Vehicle is not available for collection at the time and place agreed Rentals will continue to be payable until the day prior to the date of agreed collection of the Vehicle by our collection agent and the Vehicle will remain at your risk until collection.

10.3 If, when our collection agent attends to collect the Vehicle, it is in their opinion and for any reason unroadworthy, we may charge you an abortive collection fee. We may also charge you any costs that we incur in

collecting the Vehicle. You must advise us in writing of any failure by our collection agent to collect the Vehicle at the agreed time. We reserve the right to continue to charge Rentals in the event of any such failure.

10.4 The Vehicle must be returned with the Road Fund Licence and if it is not then we reserve the right to recharge you for the value of the refund that would have been obtained for the unexpired Road Fund Licence. Any Road Fund Licence received by you after the Vehicle has been returned must be sent to us forthwith.

10.5 When we collect or otherwise take possession of the Vehicle it must be in a safe condition and in good and substantial repair (Fair Wear and Tear excepted, having regard only to its age and mileage).The Vehicle will be inspected by our collection agent at the time of collection. A Vehicle Collection Inspection Report will be completed by our collection agent on our behalf and you will be required to agree and sign the Vehicle Collection Inspection

Report. It is your responsibility to ensure that no personal effects are left in the Vehicle at the time of its collection.

10.6 Immediately upon our demand, you will pay to us a sum which equals:

10.6.1 the costs of repair or replacement of any part or parts or accessories where such repair or replacement is required as a result of any loss or damage to the Vehicle which in our opinion is in excess of Fair Wear and Tear, having regard only to the age and mileage of the Vehicle. We will only make a demand for payment where such costs exceed £150.00 (excluding VAT) or such other amount as we may from time to time notify to you in writing. Where the costs do exceed this amount, your obligations will be to pay the full costs (and not just the excess). If we decide for any reason not to undertake any such repair or replacement, we shall be entitled to claim from you, as damages for failure to keep the Vehicle in good repair and condition, a sum equivalent to the estimated cost of such

repair or replacement. Such claim shall be in addition to any other right which we may have against you for any breach by you of any of your obligations to us; and

10.6.2 where the Vehicle is not returned with a properly completed and stamped service book, or serviced by a non-approved agent the amount by which we reasonably consider the value of the Vehicle to have been adversely affected as a result of the lack of evidence that the Vehicle has been serviced in accordance with the manufacturer’s recommendations or an agent approved by us.

10.6.3 where the vehicle has been modified, painted or sign-written without our written permission at the start of the Agreement the full cost of rectification will be payable by you.

[steampowered]

You need to check whether the term has actually expired. What is the definition of 'Extended Term' in this contract?

 

 

If the term has expired, the wording in clause 10.1 that they must use 'best endeavours' in 10.1 is actually a very strong obligation in contract law and it seems to me that they will be in breach of that clause.

[mjt2014]

Yes, the reference in 10.1 to an Extended Term suggests that there's probably more to this than meets the eye. The OP will need to look very closely throughout the contract for any other references to an Extended Term to find out precisely what it is and when it comes into effect.

[barryjohn]

Many thanks for all your help - much appreciated.

 

I have attached the full T&Cs here. Any advice on how I should proceed next is highly appreciated!

[steampowered]

Those T&Cs are not complete. Do you have the 'definitions' section?

[barryjohn]

Thanks again for your help, steampowered! This is the full T&Cs they sent me when I signed the contract. BTW, there was a contract, but only with personal details, vehicle details, rates etc.

 

There is no definition of the so-called "informal extension" anywhere in their documents. But as I understand it is a common practice for vehicle leasing when a customer is unable to return the vehicle for some reasons - I myself did it before with other leasing companies. It is normally requested by the customer and agreed by both parties. But for this case they unilaterally put it on extension without my agreement.

 

I felt they were bullying me and I was very angry, so it ended with this situation. Perhaps I over-reacted, but I do feel it is an illegal practice.

[caledfwlch]

I should think they cannot charge you anything that's not in the contract (and even then signing to them does not mean an unfair or unlawful term can be enforced)

 

Just because they and other companies do this does not give it legality and enforceability. I can imagine a County Court judge would not be impressed with the company if in court they said "well your honour, no its not in our contract but everyone in the industry does it"

[rebel11]

Here's some more info, if you do use the template send it Recorded Delivery:-

 

http://www.which.co.uk/consumer-rights/problem/i-think-theres-an-unfair-term-in-my-contract-what-can-i-do-

 

http://www.which.co.uk/consumer-rights/action/letter-challenging-a-companys-unfair-contract-terms

[steampowered]

Just double check that the definition of 'Term' and 'Extended Term' is not clear from the front page of the document you signed.

 

Otherwise, it seems to me that you would have a good claim to sue them both for breaching clause 10.1 of their own terms. There is nothing in the T&Cs you provided which seems to allow them to extend the term of the contract.

 

I'm not sure you could challenge the default on your credit file though as you admit that the final payment was not made in time.

[barryjohn]

Many thanks to all of you! I think it is clear now - the claim will be that they are in breach Clause 10.1 and the 24 months contract term. So I will do:

 

1. to write a final letter to them for intended court action;

2. to file the claim at the Small Claims Court.

 

Have I missed anything?

[steampowered]

The question in my mind is what kind of compensation will you be claiming and on what basis. What financial loss have you suffered as a result of their breach of contract?

[barryjohn]

Thanks for this, steampowered! I was thinking about this myself actually. I don't have any measurable losses, but I have been rejected for credit applications (credit cards) - this was how I found they recorded a "default" on my credit file.

 

However, it is more about a fight of principle. How about I claim (1) the removal of the "default" from the credit file, and (2) a net compensation of £1 (after deducting the ~£200 I owed them)? Would the ~£201 claim be reasonable for a compensation of their bullying, illegal practice, breach of contracts, and cause for my inconvenience... ?

[steampowered]

The problem with your wrongful default claim is that you admit your final payment was late and that you then refused to pay it. Unless I am missing something I'm not sure you can realistically claim for this.

 

 

When did they actually collect the car, in the end?

[barryjohn]

They collected the car six weeks later after I warned them that I would report to the DVLA for an unattended vehicle.

 

It is true I felt angry and refused to pay, but I am not sure if anyone would be happy to pay under this situation: they cancelled the collection, informed you the contract was in an "informal extension" and you were liable for costs in the extended period, only then they told you that the last payment didn't go through, and the default letter arrived several days later...

 

Are there any differences between default, missed payment, late payment etc? Sorry, I really don't have much knowledge about this.

 

Also the "default" amount they recorded on my credit file is much greater (~£500) than the payment missed (~£200). Can't I challenge that it is invalid?

Edited August 22, 2014 by barryjohn