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Enzo503

Mis represented car in advert help

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Hi,

 

 

I wish for some advice on my issue please.

 

 

On the 24th of Oct this year I purchased a BMW from a second hand car dealer.

The car is a 64 plate, just over 2 years old.

 

 

I purchased this car on the premise that it had many options on the car.

 

 

I paid for the car before picking it up some on cc, some by transfer and also a trade in under the assumption that I would be protected on my purchase.

 

 

On the drive home (3 hour journey) I noticed that some of the options listed in the advert were not present on the car.

I checked the car more thoroughly and noticed that the tyres were in a bad way (advert stated tyres in excellent condition) and that the car needs a service within 600 miles.

 

 

I contacted the garage the following day, they basically hung up on me. This carried on for a few days.

On the 27th of oct I put my complaint into my cc under section 75.

 

 

The cc dispute department responded on the 21st Nov. After several emails back and forth, me proving the tyres are dangerous with a report from Kwik fit and pictures, scanning the original advert and forwarding the spec sheet for my car from bmw to them, the cc disputes department claim no responsibility as I accepted the car when I collected it?

 

 

Is this correct?

 

 

The advert claimed to have options that the car does not have:

reversing camera

Soft closing doors

auto dimming and folding mirrors

lane change warning system

 

 

along with the car needing a service and the tyres needing replacement. Am I to accept my CC disputes judgement that the dealer has no liability because on their website (I saw the add on AT) their T&Cs state that cars may not be as advertised?

Also that because I collected the car, I should of checked the car over first thus I have no claim?

 

 

Thanks in advance for any advice given

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Who is the dealer and who is the credit card company?

 

You paid for the car before you saw it and so therefore it is an off premises contract. The credit card company's position that you saw the car and therefore you have no claim, is completely wrong. Who are they? Incidentally, don't expect any help from any finance company you are trying to invoke section 75. They don't like it.

 

You are entitled to reject the car, apart from anything else, if it has a defect and you notify the dealer within 30 days of the date of the contract. The poor tyres may well make it defective. I think that the first thing to do is to go and take it for an MOT at an independent MOT station and find out exactly what is wrong with it. If it fails on its tyres then the dealer is breaking the law by selling the car in a non-roadworthy condition.

 

Go get the MOT and then come back here with the result. If you get a fell certificate then this puts you in a very powerful position.


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The tyres are defective, on one tyre the tread is delaminating from the sidewall. I have a picture.

 

 

Am I allowed to name companies I am in grievance with?

car tyre.jpg

Edited by Enzo503

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I still suggest that you go and get the MOT. You have no idea what else it might turn up. Once you get an MOT fail certificate then it will be difficult for anybody to argue against you.

 

Of course you can name the companies. That's why I asked you to do it


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The credit card is creation mastercard and the garage in question is GCS Car Sales LTD

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As for "the cars may not be as advertised" : who says this? Auto trader or the dealer?

 

If the dealer : can you post up the T's & C's and were you given these before or after you paid? Even if the T's & C's say "may not be as advertised" the term would have to be very carefully drafted to avoid limiting your statutory rights (which they aren't allowed to do!)

 

If autotrader, did you confirm the specification with the dealer? If so, It was likely "a sale by description", so the car should meet that spec!

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The T and C are from their website which GCS and my cc are referring too which is as follows:

 

 

Liability

The material displayed on GCSCARSLTD co uk is provided without any guarantees, to is conditions, speciation or warranties as to its accuracy. Whilst every effort has been made to ensure the accuracy of information on this site, some errors may occur. It is important that you do not rely solely on this information but check with GCSCARSLTD about any terms you feel will affect your decision to purchase a car. No liability is acceptable for loss or damage resulting from errors or omission on GCSCARSLTD

This does not affect our liability for death or personal injury arising from our negligence, nor our liability for fraudulent misrepresentation or misrepresentation as to a fundamental matter, nor any other liability which cannot be excluded or limited under applicable law.

We will need to carry out routine maintenance and servicing of our servers and equipment from time to time. While we will seek to keep disruption to a minimum we cannot guarantee that GCSCARSLTD will be continuously available online. We therefore provide GCSCARSLTD on an "as is" and "as available" basis.

We make no warranty that GCSCARSLTD (or websites which are linked to GCSCARSLTD) is free from computer viruses or any other malicious or impairing computer programs. It is your responsibility to ensure that you use appropriate virus checking software.

We are not liable for any failure to perform any of our obligations under these terms and conditions caused by matters beyond our reasonable control.

 

 

 

 

 

 

Autotrader advert has no mention of any of this, which is where I purchased the car from. I can post a picture of the advert if needed.

I did confirm the spec, but this was over the phone.

Edited by Enzo503

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If you confirmed the spec, even over the phone, it is a sale by description, and when they say "it is important to check with GCSCARSLTD" : you did so!.

 

Letter before action / Letter before claim to the dealer, with a copy to the cc company, noting to both that your potential county court claim would name them BOTH as defendants (the credit card company being liable under 'section 75' : S. 75 of the Consumer Credit Act.

 

Alternatively, it may be quicker to recheck with the credit card company, highlighting that either a FOS complaint or county court claim will leave them liable

http://www.financial-ombudsman.org.uk/publications/ombudsman-news/86/86-consumer-credit.htm

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ok, well thank you for your responses, I have a plan of action tomorrow.

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In terms of all their disclaimers and caveats that you refer to, they are just a load of guff and you shouldn't pay any attention to them.

 

You can't have a set of terms conditions that basically protect you from any missed descriptions or misrepresentations in relation to the goods that you are being sold. If you buy a car or anything else based on this description then that description forms the terms of the contract. The seller can't then point to some other terms and conditions and say that in fact they were the applicable rules at the time of the sale.

 

If that was correct, then you might as well have bought a BMW, paid for it and then collected a mini and been told that the seller had warned you that the car might not be the same one that you paid for.

 

It's a complete load of rubbish. It sounds to me as if you are being shafted both by the car dealer and also, the credit card company. Don't accept any of it. Stand by your guns.

 

However, the very easy thing to do will be to get the MOT – get a list of the defects. Even with a tie that you have pointed out it is not roadworthy and it is a criminal offence under the Road Traffic Act 1988 to sell a car which is not roadworthy. http://www.legislation.gov.uk/ukpga/1988/52/contents

 

However, you need credible evidence that it is not roadworthy – and an MOT failure certificate will do the trick. Once you get that, then you should return to the dealer and present them with the evidence – leaving them a copy of the first certificate. You shall also send a copy of the fell certificate to the credit card company and tell them that if they will not respect your rights under section 75, that you will be reporting them to the ombudsman and eventually to the FCA.

 

Do this on the telephone by all means for speed but follow it up in writing. Make sure everybody is copied in. Also, you should begin lodging a complaint with Trading Standards. Unfortunately you have to do this by complaining to Citizens Advice – but you should get this underway immediately and make sure that the credit card company and the dealer know. Make sure they each know that you are complaining about each of them to trading standards.

 

Don't forget, that once it is confirmed that it is an MOT failure and that the car is dangerous, then you are required to stop driving it immediately. If you do not do this then you will have issues with the insurer. You need to get it back to the dealer as quickly as possible and leave it on the forecourt. Take photographs of it as you leave it so that nobody is going to come back to you start saying that you have scraped it or caused some other damage.

Best to take a witness as well


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A quick update.

 

I am still waiting a response from the cc and the letter of deadlock that I have requested.

 

The consumer ombudsman have closed the case as gcs car sales have not responded to the service.

 

regards

enzo

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A further update.

 

I received yesterday from creation mastercard a letter of deadlock.

 

The letter mainly states that:

 

The retailers terms and conditions of sale specifically state that the material displayed on the website is provided without guarantees to its accuracy. This can be found on the privacy policy section of the retailers website. Furthermore, you accepted the car as it was and took it off the retailers premises.

 

With regards to the roadworthiness of the vehicle, although you have provided the report from Kwik Fit, there is no evidence to prove that the tyres were in a dangerous state and un roadworthy condition at the time that you purchased the car.

There is also no evidence that the car requires a service.

 

 

I guess the next step is to send the letter of court action.

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I don't think you can use the worn tyres as a rejection because they described them as excellent but they are well worn and possibly illegal.

You had a chance to inspect the car and got to say that even inexperienced car buyers (tyre kickers) look at the tyres.

They could claim that you have swapped the tyres to gain a free set of excellent tyres (happens a lot believe it or not).

Unless they put pictures of them in the advert of course.

I think that the main point of rejection is the fact that the car hasn't got the described extras.

IMO you should use that as main point and the tyres as accessory.

Recently I rented a car from Gatwick and the fella took pictures of the tyres and tyre depths with a gauge.

I suppose that renting a £25 car and swapping tyres is cheaper than buy new tyres.

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