Vehicle sold with existing fault

[Ebot]

Briefly: Mini Cooper Clubman D bought from dealership for £7800 24/8/16 73000 miles 5 months later "Death Rattle" on timimng chain car parked up .

Phoned dealer, not our problem, but will repair and let you off with the VAT ! Estimated cost £1500-2500

Letter sent (to be signed for) 17/2/17 stating im within the 6 month period under The Consumer Rights ACT 2015 FOR RETURN OR REPAIR. Giving them 7 days to reply.

They are now offering to pick the car up and have it checked for the chain ! My letter clearly states "at your cost"

Do I let them take it please ?? I paid with debit card and have drafted a letter of "Chargeback " from Lloyds Bank should this be for the repair only or the amount I paid with the card £7100 ?

I am also looking at the ADR SCHEME to try mediation before court is that a good idea ?

Many thanks

PS; Does anyone know anything about the RESOLVA SCHEME ? I think its a motor trade voluntary thing

[BankFodder]

I'm not quite clear when you say 'My letter clearly states "at your cost"'

 

Is this what you said to them or are you saying that the letter that you receive from them says that they are going to collect it at your cost.

 

You have certainly done the right thing, within six months you have notified them of the fault and you have given them an opportunity for repair. I expect that you know that they have a single opportunity to repair and then they must refund or replace – with a deduction for the use that you have had.

 

Is too early to demand a chargeback because the garage has not yet announced whether they will honour your statutory rights. If you were to try make a chargeback then it would be for the purchase price.

 

I don't think you should waste your time with mediation. In any event you would have had to have started a court case before you get an opportunity to use the courts mediation service. However, from what you say, your chances of success if you have to sue are much better than 95%. Mediation is very badly conducted – especially where litigants in person are concerned and the usual expectation seems to be that that particular person will be required to give up some of their rights. Mediation is really only for businesses who are having a dispute and they tried to solve the dispute so to move on and continue a mutually advantageous business relationship.

 

The Resolva scheme that you are referring to requires that the trader in question has already subscribe to it and is prepared to accept their rulings. If you are dealing here with a trader who won't honour your rights under the 2015 legislation, then it is scarcely imaginable that the scheme would help you.

 

You much better off doing this on your own. You already seem to know your way around and doing the right things. We can guide you through the rest. The Resolva scheme is far more of interest to large businesses that want to manage the risk to their reputations. Even then, we haven't come across anyone who has used it or has reported back any satisfactory outcomes.

 

If the dealer becomes obstructive then your fastest way of dealing will be simply to threaten and then to issue a County Court claim. Who is the dealer?

[Ebot]

thank you for such a swift reply ! its my letter where I say to them "repair at your cost" Its the Cross Keys Garage TAUNTON SOMERSET ! I will keep you posted and thsnks for the advice

[BankFodder]

Okay. In response to your question do you let them take it – the answer is yes you do.

 

You have to cooperate fully in their attempt to repair the vehicle. One good thing about them taking it is that if it is not repaired or if they start to try and pose any silly conditions et cetera, at least they have possession of the vehicle and you can simply renounce it. That will not get you your money back but it will get rid of your number one problem which is to get them to take responsibility of the vehicle. Before you take it to them I would suggest that you photograph it thoroughly so that any damage – or lack of damage is completely clear. That way there is less chance of disputes later on.

 

One of the problems we have been finding about asserting rights under the CRA is that where the seller acquires rights to a refund – normally because a fault has developed within the first 30 days – getting the vehicle to the dealer is a problem and in fact we have had several instances of the dealer refusing to take the vehicle back. This leaves the customer with the awkward problem of being responsible for the vehicle and ensuring it et cetera. If your dealer is proposing to collect the vehicle from you then at least if things go pear-shaped, the vehicle is with them and all you have to do is to make sure that you inform DVLA that it is not your vehicle any more and you cancel your insurance and then start taking whatever procedure is necessary to get your money back.

 

Keep us informed – and we will help you if you need further help. Hopefully the garage will honour their statutory rights and repair the car to your satisfaction. Read our customer services guide and implement the advice there if you have any dealings with them on the telephone.

[oddjobbob]

How is this an existing fault though?

 

If the 'death rattle' described was not there at the point of sale - and presumably it wasn't as you wouldn't have bought the car if it had been - then this is surely a fault that has developed over time?

 

I can understand an 'existing fault' scenario where something was wrong when you picked the car up, but not this.

 

I don't think its as clear cut as others seem to think, however, i do hope they get it sorted for you FOC.

[Ebot]

How is this an existing fault though?

Hi oddjob for the timing belt to get to the "Death Rattle" would take 150000 km I believe I've done 6000 miles since I bought it so if the dealer had checked the chain prior to sale significant wear would be seen ! Avery good way to understand the progression of damage -foto you tube and search mini timing belt and watch the videos it's very scary

If the 'death rattle' described was not there at the point of sale - and presumably iCloud t wasn't as you wouldn't have bought the car if it had berely a fault that has developed over time?

 

I can understand an 'existing fault' scenario where something was wrong when you picked the car up, but not this.

 

I don't think its as clear cut as others seem to think, however, i do hope they get it sorted for you FOC.

[Ebot]

update, following my letter to the garage asserting my rights under the "6 Month" rule they have ignored me so far and have not followed up on their offer to pick the car up and look at it.

The issue is with the "timing chain tensioner" which has failed and causes the timing chain to rattle eventually breaking causing engine failure.

Currently I have a quote for repair of £900. Next week I intend to write again outling my rights and giving them a 7 day period to respond to respond failing which-and without notice- I will commence legal action for recovery of the repair costs. Is it wise to get it repaired at my cost and chase them through the Small Claims fo the money ?

[BankFodder]

You have a duty to mitigate your losses so in principle, you should take whatever action you need to get the car repaired so you can continue using it and not incur other expenses.

 

You should get two quotes from independent repairers – but you can make sure that they good quality repairers, authorised repairers. Supply the two quotes to the seller, invite them to come along and carry out their own inspection.

 

I suggest that you give them seven days to take up your offer to carry out their own inspection after which you will put the car in for repair at your own expense – and then a further seven days (making 14 days in all) to agree in writing to reimburse you or your expenses.

 

I say here to get them to agree in writing rather than actually do pay the money because you never know what eventually the final bill might be when the eventual repairer strips down the engine and discovers it's true condition.

 

Don't make this thread unless you intend to carried out. Don't bluff. Stick precisely to the deadlines you have set. Start reading up a bit on bringing a small claim in the County Court. It is straightforward but it is better that you know what to expect and what your next steps are rather than the have to come here every two minutes.

 

Incidentally, have you told us who the dealer is?

[Ebot]

Many thanks Bank Fodder. Got one qoute,will get another, ,both independent BMW/MINI specialists. Intend to send 2nd letter next week as you suggest with quotes.Have read small claims should I head it "Pre Court Action" as I do certainly intend to go all the way unless of course they settle.Reading seems to indicate that within 6 months Motor Vehicles are an exception in that a customer should go some way to contributing-which I am willing to do,

any further advice appreciated

[BankFodder]

It doesn't matter what you had the letter – as long as you make the threat, set a deadline, and it is all clear to the other side.

 

If you want to head it then Head it"Letter before Action"

 

I still don't notice that you have told us who the dealer is. Are you trying to protect them?

[Ebot]

Not at all I put it in my second thread I think ? Anyway Cross Keys Garage, Norton Fitzwarren. Mr D Jones Director - http://www.crosskeys-garage.co.uk/

Thank you

[Ebot]

Hi Bank Fodder- update: no response from garage following my first letter, 2nd letter going registered tomorrow requesting car inspection within 7 days. following that 7 days a further 7 to agree in writing to reimburse me. I have stated: "I will start legal proceedings against you immediately following the expiry of the 14 day period (14/3/17)" which I will.

Have studied Small Claims and claim ready to go. One question should I send detailed particulars to the defendant ? Or keep my powder dry.

Many thanks.

[BankFodder]

I don't think that it is a question of keeping powder dry. You've presented everything to them. Send your letter and then go to MoneyClaim, open up an account and start drafting a particulars of claim. You can have it already to go.

 

Incidentally, be aware that you will have to pay a claim fee which is probably about £250 and also it goes to court you will have to pay hearing fee which I believe could be up to £300. It's all pretty expensive nowadays. You will have to be prepared to commit this money. If you win, which is highly likely, you will get the money back.

Incidentally, I'm not sure that you have told us if you now want the car repaired or you simply want to get shot of it. I realise that I have been assuming all along that you merely want to get it repaired.

 

However, given the attitude of the garage, the latter seems to be a better option to me. You will need to decide before drafting your claim, what remedy you actually want

[Ebot]

Hi Bank Fodder-an update: following my "Letter Before Action" 27/2/17. I got a call 7pm 1/3/17 from the garage director very aggressive.Said he woulld do a "trade" repair and he would pay the VAT I tried to explain its "1 repair" and could he put it in writing pls "I dont do writing" and Ive been to Trading Stds and your 3 month warranty has expired. Would you consider mediation through a local solicitor then? " I dont do mediation".

So can I ask you one more time please are you ptepared to repair the car at your cost ? "No I'm not" Ok lets leave it there.End of call. My letter said "I invite you to come and inspect the car within 7 days from the date of this letter-the 6th March-after which I will put the car in for repair at my expense.I enclose 2 quotations from BMW/MINI specialists.

Additionally, following the 6/3/17 I offer you 7 days to agree-in writing to -to reimburse me and/or my expenses.

I hope that this issue can still be resolved without recourse to legal action,would you agree to use the ADR system (Alternative Dispute Resolution) ? Should you fail to respond to the above then I will start legal proceedings against you immediately following the expiry of the 14 day period-14/3/17.

He's just rung me, won't put anything in writing, but saying he will get it picked up do a "trade" repair and pay the VAT. I want it repaired its booked for the 14th with a specialist, he then said I can take it back and do a trade in for something else !! I can't go open ended without an idea on price, any advice please.

I'm of a mind to continue with the repair at my cost and proceed to small cliams !

Sorry it's so long winded !

[BankFodder]

I take it that it is now longer than six months since you bought the car. Frankly I would be frightened of letting him have the car because his attitude to it all gives me no confidence that he would do a decent job and I would be very concerned about getting into some terribly involved and difficult situation from which it became tricky to extricate.

 

Can I say that your style of posting in your last post is rather short-hand and it's difficult to understand. It will be helpful if you will be clear about who says what to who et cetera. You use this style elsewhere in this thread and it is generally time-consuming for us to deal with.

 

For instance, it's not clear to me who is suggesting to who that they are hoping the matter can still be resolved without legal action and who is proposing ADR. You can help us all by being a bit more careful about the way you express this.

 

If it is you who is proposing ADR then I think I've already suggested that mediation is going to be unhelpful and is simply going to draw things out. In case you don't realise, mediation is just one form of ADR (Alternative Dispute Resolution).

 

You have clear rights here and the dealer has ignored his duties under the law and I would suggest that you now insist on a replacement. I would send a letter before action saying that as he has chosen to ignore your statutory rights under the Consumer Rights Act and as the six-month period has now passed, you require that he refund you your purchase price (plus any losses to which you have been put) and that if you don't receive this within 14 days then you will begin a claim in the County Court. Tell him that given his aggressive attitude and also his stated refusal to put anything in writing, that you are not prepared to get involved in any further negotiations.

 

I think you should disentangle yourself from this character and you will be well out of it.

[Ebot]

Hi the defendant in my case has filed acknowledgement of service,thereby delaying things for a month ! Can I file a Summary Judgement, he's just using delaying tactics, this is over 6 weeks already. I've had the car repaired at my cost and service took place on the 20th March with Acknowledgement on the 28th.

Thank you.

[BankFodder]

You could file for a summary judgement – but it won't get you anywhere and the time that it will take and also the fee for making the application will be expensive and will take you well beyond the time after which he must file his defence.

 

He now has 28 days from the date of issue of the claim to file the defence.

 

Watch the time very carefully and if you haven't had the defence on exactly the 28 day then move in straight away and apply for judgement you never know your luck.

 

I'm afraid that I don't think there's anything else you can do now except play the waiting game

[panther12]

Hi the defendant in my case has filed acknowledgement of service,thereby delaying things for a month ! Can I file a Summary Judgement, he's just using delaying tactics, this is over 6 weeks already. I've had the car repaired at my cost and service took place on the 20th March with Acknowledgement on the 28th.

Thank you.

That's normal for a defendamt to file a AoS, it gives them extra 14 days to prepare their defence. Just keep an eye on the clock and if they've not filed a defence by the due date then as said you get in with a default judgment at the earliest opportunity.

[phil40000]

Surely if you were able to drive the vehicle for 5 months the car was fit for purpose? A timing chain failure is wear and tear and can be influenced by how the car has been driven. If the supplying dealer has a pre delivery inspection then it may well prove the fault was not there when you picked the car up. When was the next service due? The life of the chain depends upon regular oil changes and is a very common issue regarding Mini's, people buy them thinking they are buying BMW 'German engineering'. The engines and gearboxes are Renalt/Peugeot and are terrible with huge oil consumption, noisy timing chains and chocolate gearboxes.

 

Also regarding going to court, you can 'win' and easily end up with having to pay charges and being stuck with your bill for repair Ask me how i know! All the company does is change the name of the business and the baliffs or sherrifs are powerless to recover your money with the court issued CCJ.

 

It really sucks but i had a massive wake up call regarding consumer law/protection. When you look at the system it looks fair and bulletproof but as i say if you are dealing with someone who knows the system you are SOL.

Edited March 31, 2017 by phil40000

[Ebot]

The garage has employed a solicitor who is now seeking to dismiss the 2nd defendant through "the claim against the2nd defendant must fail for want of cause of action". This is a director of the company who has dealt with my complaint personally through a number of phone calls.

Should I get legal advice or just continue with my defence ?

[BankFodder]

I'm not too clear as to why you have decided to sue the director as well.

 

You action was against the garage. The director is really just doing his job on behalf of the garage. If you have sued the director as well – personally, then unless you have some good reason for doing so, then I don't say that you have any case against him/her and in fact you merely risk incurring any costs which the director has incurred because it may be that bring a claim against the director was not a reasonable thing to do.

 

Who is it who advised you to sue the director of the second defendant? I hope it wasn't us?

 

Did you have some good reason for suing the director? Do think that the director should bear personal responsibility because of some wrongdoing, because of some way in which he or she acted outside the scope of their formal duties on behalf of the company?