Bought a Clocked & damaged Car

[BankFodder]

We don't need to see videos et cetera.

You could sue for repair and loss of value damages – but then you are still saddled with a lame-duck vehicle. It seems to me that your best interests are in getting rid of it.

Accepting damages could be a fallback position – but I would be very reluctant and frankly I don't see why you would have to do that.

By having 20,000 miles of use from the car, how would you calculate that in terms of the value you have enjoyed?

[sallyblackburn]

"By having 20,000 miles of use from the car, how would you calculate that in terms of the value you have enjoyed?"

That's a great question and is part of the reason that damages to repair and the loss of value claim were advised i think.

It's an area that concerns me.

[BankFodder]

Yes but even if you claim for damages – which I think is a lousy option – you are still going to know how much are claiming for.

You can't simply go to court and say well we want damages and we don't know how much.

You are going to have to calculate the value of your losses.

[sallyblackburn]

I calculated it as £8943.50, being 2,413.50 to repair the vehicle and £6530 for the loss of value even after the repairs due to the vehicle being clocked and having the status of being an accident damaged vehicles.

 

Is that the wrong way to look at it?

Sorry if I sound thick

[BankFodder]

So you are saying that you bought the car for £10,000, you paid £2413 to repair it – so the cost of the vehicle to you is £12,413.

But the loss of value due to the misdescription is £6530.

You haven't estimated the value of your 20,000 miles use. You can be absolutely certain that if you sue for damages then you will have to take into account the enjoyment you have had from the vehicle

You will only have an argument for disregarding your 20,000 miles if you attempt to recover all of your outlay so that effectively you are seeking a refund

[sallyblackburn]

My calculation of damages is loss of value due to the mis description, £6530, repairs 2413, leaving a car that is in working order and worth £3270 at the time of purchase, that i would be required to keep. It would be worth less now due to the additional age and use.

Edited August 22, 2020 by sallyblackburn

[BankFodder]

Well it's all too complicated. I would sue for the full reimbursement – and let them raise the other issues and deal with them as they come along.

I don't think there's anything more to be said. I think we laid it all out for you and you have to make decisions

[Manxman in exile]

On ‎22‎/‎08‎/‎2020 at 09:31, sallyblackburn said:

... they also discovered that the milage had gone backwards on 2 MOTs and therefore the car is clocked...

 

... The mileage discrepancy reduces the value of the car by around £5000 as there is an assumption it has done 1-200k miles and not the 30k miles i paid for!..

 

 

 

One thing I forgot to mention last week which you may want to check before you get as far as a making a claim (if you do).

 

Just on the basis of what you've said, I doubt that the people who inspected your car are necessarily justified in concluding that the car must have been clocked.  It's actually far more likely (and more common than you might think) that the car's mileage has been wrongly recorded on an earlier MOT.  As we are talking about a Merc you ought to be able to get this checked easily at your local MB dealer by asking them to check the service history mileages and/or check actual mileage recorded by the ECU.

 

I'm a bit surprised that the people you bought from wouldn't have checked this themselves before selling it (you describe them as a MB main dealer and it would have cost them nothing to check) and in the event of any comeback they would be expected to know if the car had been clocked.  Also, surely a car that has done 100k - 200k miles isn't going to look anything like one that has done 30k?

 

As I say, best to double-check the mileage yourself before possibly going to court and discovering the dealer can show that the advertised mileage is correct (service history and/or ECU) and the recorded MOT mileage was wrong all along.

[sallyblackburn]

The mileage was recorded backwards on 2 occasions and excluding the mot data, using the recorded service data shows that the vehicle did 2300 miles in 2 years, which is not a believable value for this type of car. 

 

Additionally, they held back the HPI and MOT data saying they couldn't find it when we collected the car, and when they finally sent it after lots of chasing, they explained the discrepacy by claiming they'd made a typo at the time they did the check, so theres lots of stuff other than the MOT's. 

 

I have just found the previous owner's paperwork in the spare tyre, there is lots of it and it makes clear the car has been clocked. 

 

I am currently SAR'ing Creation, Mercedes and Marshalls, so that may produce more.

Edited August 31, 2020 by sallyblackburn

[BankFodder]

Okay so now you have definite proof that the car was clocked – in addition to other problems.

I've already pointed out eight days ago that you had to make decisions. Have you made them?

[sallyblackburn]

I'm waiting for the response to the email you told me to creation and the SAR results. I also made a complaint to the CEO of Mercedes in case they actually care about their customers. They have emailed to say they are still investigating.

Edited August 31, 2020 by sallyblackburn

[sallyblackburn]

I sent the email BankFodder advised to Creation and got the following reply. It is important to note that i have sent them the video presentation that clearly has the word immaculate in, also they have ignores the CRA 2015 issue, and the mileage issue once again:

 

Thank you for your email.

 

My colleague and I have reviewed your file again and we cannot see any evidence (such as an advert for the vehicle) to show that it was in immaculate condition at the time of sale.  Our position therefore remains unchanged. 

 

I appreciate that you will be unhappy with this decision and I refer you to my email of 20 August included below, which contains details of the Financial Ombudsman Service, if you wish to refer your case to them for an independent review.

 

Kind regards

 

XXXX

 

 

XXXX

Chargeback Manager

Creation Financial Services Limited

 

 

[BankFodder]

Okay. You say that you have definite evidence that the car is been clocked.
You say that you have a video and maybe other information which shows that they were advertising the car as immaculate.
It's amazing that Creation haven't watch the video. They seem to be a nasty little company and we would recommend that people don't get involved with them.

I'm afraid that you have never been very clear on exactly what your losses are.

Please would you produce a little bullet pointed table:

• cost of vehicle
• cost of any repairs – explaining what those repairs are
• any other losses that we should be aware of
• total amount of money which you would need to put you back into the position that you were in before you bought the vehicle.

Could you just put these figures are clearly without all the narrative that you normally give us. I really need to understand what you need to fully compensate you

[sallyblackburn]

• cost of vehicle £9800
• cost of any repairs – Repairs to bodywork, refixing of bumper and resraying of panels etc £2,413.50
• any other losses that we should be aware of - Car only worth £3270 at point of sale due to mileage issue and accident damaged status.
• total amount of money which you would need to put you back into the position that you were in before you bought the vehicle - £9800 with vehicle returned to them or the sum of the repairs and lost value, being £8943.50

Edited September 4, 2020 by sallyblackburn

[BankFodder]

Not interested in the value of the car at point of sale. We are interested in your actual losses. You keep on referring to this and it only confuses issues.

Can you explain why you had the repair to the bodywork et cetera? Had you already approached the dealer about this and they had knocked you back?

 

 

Also I don't understand why you say that the amount of money needed to return you to your starting position would be £9800 when you've apparently incurred over £2000 on repairs.

By my calculation this means that you are out of pocket by about £11,200

Also you are paying finance on this yes? Presumably you have been paying interest

[sallyblackburn]

I don't want a refund. I want damages. Otherwise we end up on the fast track don't we.

[BankFodder]

You end up on the fast track whatever happens if you sue for more than £10,000. It doesn't matter whether it's refunds or damages – whatever you want to call it.

[sallyblackburn]

I want to keep the car and claim for the loss of value plus the repairs. £8943.50. This would leave it as a legit small claim.

[BankFodder]

But you are still left with the car and if it has any problems in the future then you're going to have to deal with the dealer who you will have fallen out with very badly. In fact by your accounts, the dealer is completely uncooperative and not interested in your consumer rights.
It seems to me that you should get shot of the car and move on.
There is nothing to stop you simply claiming for the reimbursement of the price that you paid for the car and forego the rest.

You haven't answered my question about finance

[sallyblackburn]

I was hoping to keep it simple and just sue Creation for the Damages. Trying to return it after 2 years opens a can of worms with the usage of 20k miles.

 

What do you think of these draft particulars?

 

MARSHALL DRAFT CREATION Particulars-of-claim-faulty-goods-and-credit-card.pdf

Edited September 4, 2020 by sallyblackburn

[BankFodder]

I think that you should let the judge decide on the question of the return.

I think you have an action here in misrepresentation – probably reckless misrepresentation in the absence of any direct evidence of fraud. Also an action for breach of contract.

I think that you could sue for the reimbursement of the purchase price or alternatively the cost of repairs and loss of value.

You would be much better off getting rid of the car for the reasons I said. If you are trying to keep things uncomplicated then you ought to wash your hands of this dealer and also of the finance company.

I'm afraid that your particulars of claim is not to my style. I don't think it's necessary to rehearse the positions of the parties et cetera. You're not a lawyer. I should cut to the chase.

I think should start off with a very brief particulars of claim and then follow it up with an extended particulars of claim which we will help you prepare.

Also at the beginning I think that you should send a very serious and threatening letter to creation – which we will help you prepare and make it clear to them that as soon as the judge agrees that they have been disingenuous in telling you that you should have checked the car first, that you will then begin a separate action against them for treating you unfairly.

 

Quote

Misrepresentation and breach of contract.
The 1st defendant sold a car registered X X X to the claimant. The purchase was financed by the second defendant. The car was advertised as being in immaculate condition and also with a mileage of X X X Miles. In fact the car had suffered accident damage and had been poorly repaired. Furthermore the recorded mileage on the milometer was not correct and it was clear from previous MOT certificates that the recorded mileage was false. 
The claimant seeks reimbursement of the purchase price of the vehicle – £9800 or alternatively cost of repairs which she has undertaken and compensation for the loss of value due to the condition of the vehicle and the false mileage – £X X X.  The claim against the second defendant is brought on similar grounds under section 75 Consumer Credit Act 1974.
 

 

Then when entering the amount of money that you are claiming on the Moneyclaim online website, you would put the higher of these two amounts which I believe is the purchase price.

You would tick the box indicating that you will be sending a more detailed particulars of claim. This should normally be sent off quite quickly after the issue the claim and then you would have to sign a certificate of service.

However, before that you would send a letter of claim to both parties which we will help you prepare

 

 

[sallyblackburn]

I really don't want to risk getting close to the small claims limit. I have a massive fear of costs. Thanks for the advice tho. I understand what you're saying. I also don't want to complicate things with 2 defendants, i just think it will be a meh, as the dealership are a nighmare to deal with. At least Creation are regulated.

[sallyblackburn]

I really don't want to risk getting close to the small claims limit. I have a massive fear of costs. Thanks for the advice tho. I understand what you're saying. I also don't want to complicate things with 2 defendants, i just think it will be a meh, as the dealership are a nighmare to deal with. At least Creation are regulated.

 

Also, On the day I will send counsel direct for £250 or so, which is why it is plead like i did. I get too anxious in court.

[BankFodder]

Firstly it won't complicate things with two defendants. It makes no difference. Also, the finance company will be much easier to reach and once they realise they are being sued and the explanation is being raised in court, they will put pressure on the dealer and I'm pretty certain that they will put their hands up. No promises though – but that is the likely scenario. The finance company is being outrageous and behaving extremely unfairly.

If you're going to use the services of a lawyer then then if you really feel that you should do it then you should go ahead – but I don't think you should involve us any more because you are going to get conflicting approaches.

I don't think there is any risk of costs if you count your claim in the way that I suggested. There is very clearly misrepresentation here and I would expect that in court the case for treating it as a reckless misrepresentation would be put with great force and probably accepted by the judge.

It's clear that the garage have a duty to take reasonable care towards you and that as experts in the field they would have had access to all of this paperwork and they would have been required as part of their professional business to ascertain the true mileage. I can imagine that a judge will be tempted to consider that they had probably acted fraudulently – but rather than raise this without direct evidence – I think the judge would have no difficulty considering that the dealers had acted recklessly.

[sallyblackburn]

Thank you. I was quite sure that there was misrepresentation and a breach of the 2015 CRA as well as the 2008 CPUTR and the 2014 amendments, but after getting the reply from Creation I started to doubt myself and You have really helped me out. The dealers have certainly behaved recklessly, and if it wasn't the case that fraud cases are ineligible for the small claims track i would have plead fraud, but the bar is high and the costs are frighteneing to me.

 

One thing I have no knowledge of at all is the COBS stuff. What would you put in the LBA about that to the finance company please? I have made a donation to the site. Thanks so much x