Bought a Clocked & damaged Car

[BankFodder]

First of all, it's complete nonsense that you have a legal responsibility to check the car over. Which credit card issuer has given you this decision?

I don't know how far you want me to comment on the recklessness of buying a £10,000 motorcar over the telephone – but apart from that, on the basis of what you say, the rights are completely on your side and I'm quite amazed at the decision which you have apparently received from the issuer.

You can certainly begin by going to the financial ombudsman service. It's great shame that you have left it so long.

Your total losses £10,000? Or are there more?

 

Also you haven't told us the name of the dealer

[BankFodder]

It would be helpful if you would avoid scattering asterisks in the middle of the names you are giving us.

I understand that the credit card company is probably Creation https://www.creation.co.uk/ but so far as the dealer is concerned, Mercedes is the maker of vehicles and not the name of the dealer.

Please will you tell us the name of the dealer and maybe link us to their website.

 

[BankFodder]

Quote

 

https://www.trustpilot.com/review/www.marshall.co.uk

 

 

[BankFodder]

I'm trying to understand your calculations of your losses.

I don't really understand why you are factoring in the cost of repairs when clearly the car should be returned and you should have a full refund.

So I understand that you pay £10,000 for the vehicle. Have there been any other expenses which have been reasonably incurred while you have been dealing with this problem?

Also, I'm very intrigued by the letter you have received from Creation. Please will you scan it and put it up in PDF format so that we can all have a look at it and probably have a laugh.

I'd also be interested to see the letter of complaints which you sent them which has produced this extraordinary response.

[BankFodder]

You haven't addressed the question as to the value of your actual losses.

However, the letter which creation have sent you denying any liability is nonsense. When you enter into a contract, you are entitled to rely on the description given by the dealer – and the description forms the basis of the contract.
In fact I understand that you paid the money before you even went to see the car – so there was clearly a contract in existence before you had any opportunity to see the car – not that that is particularly relevant anyway.

I don't know who this Creation Financial outfit are, but they are obviously simply in the business of declining liability and they are treating you most unfairly.

I would suggest that when this is over you cancel your credit card with them and also I would suggest that you put up reviews on trust pilot et cetera about them. These kind of people don't like that kind of publicity. Make sure you type out their name fully without ridiculous*the middle all the time which only serves to protect them and to endanger other victims.

Your own letter to creation financial is unnecessarily verbose. The fact is very simply that you rely on the dealer's description of the vehicle and it failed to conform to its description. This was in breach of their obligations under the consumer rights act. Additionally, there is compelling evidence that the car has been clocked which adds to the breach of contract and I would certainly expect that a dealer with considerable experience would have a duty to ascertain that the mileage was correct in order to protect their customers.

I don't think you helped yourself by making such a complicated letter – you simply want a refund because the car is not of satisfactory quality and does not conform to its description.

I suggest that you begin a complaint to the FOS. The FOS are generally speaking extremely half-hearted and limp wristed about anything – but on this occasion, it might be a good way to go particularly as I sense that your losses are in excess of £10,000 which puts you above the small claims limit in case you have to start suing. However we will help you if necessary.

I suggest that you put together a letter of complaint to the FOS and put it up here on this forum before you send it off to them.

I suggest also that you send creation financial an SAR.

I would also suggest that you send creation financial a letter objecting to their findings – using the basic which I have set out above. Send the SAR anyway – but post up a draft letter of complaint to creation financial on this forum before you post off.
 

[BankFodder]

Do you mean that you have already asked for an SAR from Creation? When did you ask for it?

I think you're quite wrong about getting damages. You still haven't told us about any of the losses – and I have an impression that you are trying to avoid this question – but in principle, you should be going for a full refund. You raised the issues very shortly after purchasing it and you have been led around by the nose since then. I think that you should consider your position at the point that you first raised the issues with the dealer.

 

Quote

Dear Sir/Mdm

 

Thank you for your reply dated X X X.
As you are aware, under the rules contained in the FCA handbook, you have a duty to treat me fairly and in the event that you do not, I have a right of action against you in the County Court.

You are quite wrong that there is a duty on a customer to inspect the vehicle before they purchase it.
The rights contained in the consumer rights entitled me to rely on the description made by the dealer and also to be confident that I'm purchasing a vehicle or any other item which is in a satisfactory condition and which will remain in a satisfactory condition for a reasonable period of time.

It is the dealer who has a legal obligation to describe the vehicle accurately – and the intention of the dealer or their state of knowledge of the time is irrelevant – and as a professional company holding themselves out as having a professional level of expertise, they have a duty to ensure that all the claims that they make the vehicle are true.

Clearly they are in breach of their contractual obligations because the claims which they made in respect of the vehicle were not true – and it is clear from your response to me that you broadly accept that because you simply say that the only problem is that I did not inspect the vehicle.

Also, although it is irrelevant, I paid for the vehicle when I agreed to purchase it over the telephone. That means that a binding contract was in place before I travel to collect the vehicle and so even if it was relevant, there was no opportunity to inspect the vehicle until after the contract was made. As I have said, this is not relevant – because under the 2015 Act the vehicle must conform with the claims and description made in respect of it by the dealer.

You have sent me a final response giving me six months to complain to the FOS – and I fully intend to do that. However, I'm giving you a final opportunity to review your decision and to refund me the purchase price of the vehicle.
Once again I would remind you that you have a duty to treat me fairly and to communicate with me fairly – and you have not done so.

If you obliged me to go to the FOS – then I fully expect that the FOS will find in my favour and that they will point out that you have failed in your legal duty under the Consumer Credit Act. Once I have that decision from the FOS then I shall be proceeding against you under the COBS rules in the FCA handbook in order to obtain a county court judgement which I shall then pass to the FCA.

Please respond within 10 days or else I shall begin the complaint to the FOS.
 

Faithfully

 

 

[BankFodder]

I have already said that you should be looking at reimbursement of all of your losses.

This means, how much have you spent so far?

The purchase price of the car
any other losses which you incurred in respect of the vehicle?

In other words, if the vehicle was returned the dealers – which I see as the only sensible outcome – how much money which you expect to be refunded in order to put yourself in a zero position.

[BankFodder]

There could be a reduction for the use you have had from the vehicle. That would certainly be the normal applicable principle but as I understand from you that you raise the issues very shortly after you purchased it and since then they have led you around by the nose (although you seem to have been fairly complicit in this), I think there is a good argument for saying that they have created the delay and therefore they must be responsible for it.

In any event, I would let them raise the issue in court.

Also, you travel 200 miles to collect the vehicle and drove it back. How much did that cost you?

[BankFodder]

Okay then you have two courses of action in my view.

You can either make your complaint to the FOS – which is risk-free but which may take quite a long time because in addition to being limp wristed, the FOS moves very slowly with most things. The outcome is uncertain and I can certainly imagine that the FOS will start recommending an apportionment based on the amount of time that you have had the car – meaning a deduction for the amount of use you have enjoyed from it. I have already explained to you why I don't think that this should be an applicable principle in your case.
You wouldn't have to accept the FOS decision and there may be aspects of their decision which you could use in litigation – for instance if they found that creation financial were wrong in their decision and the things that they said.

The second thing you could do would be to begin an immediate legal action in the County Court against the dealer for their breach of contract – and in that event, I would also consider joining Creation Financial as a second defendant simply to confuse the issue and to cause division between them and the dealer.

I suppose there is just a remote possibility that a judge might say that there should be a reduction for the amount of time that you have been using the vehicle – but I think that your position that you tried right from the outset to return the vehicle and you are prevented from doing so by the dealer and also by the credit card issuer is very powerful and I don't really see a reduction being made.
How many miles do you think that you have done with the vehicle since you tried to raise the issue with the dealer?

If you did bring a legal action then I can scarcely imagine that it would get to court and I expect that creation financial would pay you out and then set about dealing with the dealer directly.

It is almost inconceivable that you would lose the legal action – but if you did, then you would lose your claim fee, a hearing fee and of course you would be left with the car. However your chances of success in the County Court are much higher than with the FOS. I expect that with the FOS you would succeed but I think there is a real risk of a reduction or some rather reduced recommendation.

In principle you could also claim for interest at 8% on the money that you spent. However, this risks raising the money that you would be claiming to something over the small claims limit – and so that is probably not worth the risk.

If you want to take legal action then we will help you draft the papers. It's very simple but you need to know the steps in advance and you should read around this forum about how to bring a small claim in the County Court

[BankFodder]

I would bring the action against both of them.

Are you saying that since you bought the car you've done 20,000 miles on it? 

 

That is certainly a substantial amount of mileage and there might be a better case for requiring a reduction on the purchase price. Despite that, it still seems to me that you have got a tainted vehicle which is been subject to an accident and which has been tampered with in terms of its mileage and so I see absolutely no basis for you wishing to keep it.

What people will ask is why you carried on using the vehicle. I understand course that you may not have had another one – but the usual principle would be that as soon as you realise that there is this kind of problem, you would take the vehicle off the road and make alternative arrangements – such as purchasing an alternative vehicle. Of course the important thing is that they have been aware of the issue right from the beginning and it is they who have caused the delay. This is your strong point.

Given that you have put 20,000 miles on it, I'm absolutely certain that the FOS will make a reduced recommendation or if the court is likely to be rather tougher in this regard.

Also, given the rather lamentable assessment of your legal position by creation financial, I think that they would rather that there denial did not come to light and so therefore they might think that discretion favours giving you an full refund or at least only with the minimal reduction

[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?

[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.

[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

[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

[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?

[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

[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

[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.

[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

[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

 

 

[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.

[BankFodder]

I wouldn't start getting hung up on CPUT.  There are enough issues with the breach of contract and the misrepresentation to get on with.

You don't need to have any knowledge about cobs at the moment. Simply that they have a duty to treat you fairly and to communicate with you fairly and it is clear that they haven't done by misleading you as to your legal obligations under the contract. I'm sure that they know the truth of the matter and if not then once again they are in a dominant position, holding out expertise and it is their obligation to communicate the correct advice to you – and they clearly have not. I would say that they are being as reckless as the dealers were in misrepresenting the mileage. Furthermore, if you have provided them with the video which clearly says that the car as immaculate and they are same to you that they have not noticed any evidence of that then they are also being unfair with you.

If you want to write a letter of claim then we will help you. However if you have decided to go with professional legal advice then I think that we have to stop

[BankFodder]

Thanks for the donation. We've received it.

Although you are suffering from nervousness, you will be better off doing the hearing yourself. As a litigant in person you have a lot more licence and as long as your papers are organised you will find it very easy. You should look at our guidance on organising a court familiarisation visit.

Also you should look at our advice on preparing your court bundle.

So I'm still asking the question about what decisions have you come to.

[BankFodder]

Don't attach the draft particulars. It's useless.

 

I suggest that you send something broadly like this: –
 

Quote

 

Dear Sir/Mdm

Letter of claim

As you know, on X X X date I purchased a vehicle from X X X dealers financed by your credit card.

I have already informed you that the car which was described as "immaculate" turned out to have accident damage which had been poorly repaired. More seriously, it also transpired that the car mileage was incorrectly recorded and that the previous MOT certificates showed that the recorded mileage was false.

Clearly the dealer has misrepresented the car.

I have already contacted you about this and you have tried to tell me that I had an obligation to inspect the car when I collected it. This is obviously untrue and I'm sure you must realise this. Firstly, I relied on the description given by the dealer and under the consumer rights act I'm entitled to do this.

Secondly, although it is not especially relevant, the contract had already been made before I visited the garage to collect the vehicle.

Thirdly, any inspection would not have revealed the false mileage and as this was a reckless misrepresentation by the dealer, this creates a liability in addition to the contractual breach.

As the company which financed the purchase, you are liable under section 75 of the Consumer Credit Act as if you were the seller. As you have declined to accept any responsibility so far I am proposing to sue you unless you provide me with a full reimbursement of the cost of the vehicle and also any losses which I have recently incurred, within 14 days.

I should also warn you that when I sue you in the County Court, I shall show the judge the explanations that you have given for declining liability and in particular your attempt to mislead me by telling me that I had a legal obligation to inspect the vehicle before I took it away.
I'm confident that I will obtain a judgement against you and I am also confident that the judge will remark in the summing up that you have misled me on this point. Once I have this, I shall then proceed to sue you separately for treating me unfairly contrary to the Conduct of Business regulations contained in the FCA handbook.

Believe me
 

 

 

[BankFodder]

 

12 hours ago, farmlama said:

Quick question, but from reading this, I get the impression that you have not had the body works carried out, is this correct?

 

if you have an estimate but not had the works carried out, then you have not yet sustained this loss yet and it may be questioned why you didn’t get it repaired in the last two years and that as so long has passed that it does not really need any repair. If the estimate is from a main dealer, it is likely that a local garage would also be able to repair for a much lower price too so if you was to get it repaired, your loss may be much less than previously thought.

 

Other than the point about competing quotes (which would have to be subject to equal quality of workmanship) I disagree completely with what has been written.

I don't see how you can say that no loss has been sustained. If you make a contract for a vehicle or anything for £10,000 based upon a description which turns out to be false and means that instead of your expected gain of the £10,000 vehicle, you come into possession of a £7000 vehicle then clearly you have suffered a £3000 expectation loss. I really don't see how you can say anything else about it.

Additionally, and in my view, the main point here is that the car was clocked. This is extremely serious and although the bodywork can be repaired to a proper standard – which may be the kind of thing that can only be undertaken by a main dealer – the fact that the vehicle is clocked cannot be repaired. I think any attempt to sell a vehicle where it was admitted that the mileage was not true and in fact nobody knew the true mileage because it had been deliberately interfered with, would make the vehicle pretty well unsaleable. It may well be that the vehicle has lost as much as 75% of its value. Not only because of the uncertain mileage but also because of the fact that the vehicle has been tampered with and it has lost its integrity.

As to the question as to why it was not repaired earlier and that this would in some way suggest that there was no need to have it repaired which I take to be a veiled suggestion that in that case they would be no cause of action. This would be an extraordinary position. This would in effect be saying that you can only sue the person who damaged your vehicle if you can show that you needed a vehicle in good condition!.

 

On 04/09/2020 at 20:35, sallyblackburn said:

Thansk so much for all the tips, I know I am being somewhat difficult. I have sent the LBA now.

Have you registered with Moneyclaim online and have you started preparing your case? Have you read around about the steps needed to bring a small claim?