Fast Motor Finance Ltd /Advantage - problems with car and now wish to VT

[just_jue]

 

Hi Dx, I have only just started helping them yesterday, all the complete so far has been done by my son in law.

I am just getting all the correspondence together and make a full list later

[BankFodder]

I'm trying to think in terms of tactics here.

 

Because the vehicle purchase has been made on hire purchase, that means that the finance company is the owner of the vehicle and strictly speaking your direct action is against them in breach of contract because they have all the obligations to you under the consumer rights act that they would have if they had been the dealer.

On the other hand I still like the idea of going against the dealer – which you could do on the basis that you enjoy third party rights of direct action under the Contracts (Rights of Third Parties) Act 1999. Of course you could sue the finance company and you could win – in fact you probably will win: there is clearly been some kind of misrepresentation at the very least – and maybe a deception. It's rather a coincidence isn't it that certain important information has been omitted from the documents supplied to you.

However, if you sue the finance company then I don't think it will provide a quick solution. From what you have told us so far it seems to me that there is a certain urgency. I think that the finance company will simply get into obstructive mode and simply try to cause you trouble – because they will instruct their usual solicitors – and I'm afraid to say that solicitors are incapable of taking a pragmatic view. The longer it goes on then the more they can charge the client. The more obstructive they can be then the more there client naïvely is impressed – and at the end of the day the more obstructive they become, the more likely they are to wear you down and to achieve some kind of negotiated settlement where you agree to sacrifice some of what you are entitled to – and the client – the finance company then sees that as some kind of – Win.

I think a quicker route to success is to sue the dealer – and at the same time you could bring an FOS complaint against the finance company.

Of course if you sue the dealer, they will start off by pleading that you don't have a contract with them. That's true – but you would be relying on the provisions of the 1999 act – and it is clear that you are an intended beneficiary of the contract and I scarcely imagine that they have expressly excluded your rights to bring an action against the dealer. I would expect they hadn't even thought about it.
One of the rules about bringing a complaint to the financial ombudsman service is that you are not allowed to do that if there is a legal action underway at the same time. I can imagine that if you brought a complaint against them to the FOS, that the finance company will plead that there is a legal action – but I think that you would have a good argument to say that the legal action is against the dealer and that the complaint to the FOS is clearly independent of that legal action.
The FOS is very cosy with finance companies – and they may accept the position of the finance company and refuse to be involved – but on the other hand they may side with you and continue with their investigation against the finance company. This would mean that you would have two irons in the fire at the same time.
You could simply bring a complaint against the finance company to the FOS – but as I've already suggested, this will take an awful long time and it may not be resolved before 12 months is up – meanwhile you have the problem of not having the vehicle.

So my favourite course of action at the moment is to threaten the dealer with a legal action on the basis of your third party rights – and separately to begin a complaint to the FOS about the finance company.

I think the dealer would be extremely surprised to find that they were subject to the legal action when they had thought that they are being protected by the hire purchase rules. However, I think that they would eventually be obliged to confront the reality that they were going to be a defendant in the court case. I think they are the weakest link and they are the route to getting the fastest result.

I see that the dealers describe themselves as some kind of finance company themselves. But I don't notice any FCA registration or any other signs that they are a finance company or that they have the kind of expertise behind them which you would expect the finance company. Have you any further ideas on that point?
 

[just_jue]

Thanks Bank Fodder for laying out the pro's and cons.

 

I think that because the missing paperwork on the 100k service was missing will help in our favour, as Ford say the automatic gearbox must be serviced at either 35k or 2 years which it wasn't, this was disclosed at the time of sale and only a very basic service was done and stamped in the book.

 

I am very surprised that the finance company closed the complaint so quickly.

 

At the moment the car is at an independent garage, luckily it is where I get my van serviced so I know the owner. Should we leave the car there as in one of the emails the finance company told him not to drive the car, or shall they drive it home which is around 3 miles?

[BankFodder]

The finance company are rejecting your complaint – because this is what they think they can get away with. There is no morality in finance companies. Not only that, they have prepared a final response so quickly and recommended a complaint to the FOS – because they prefer you to go to the FOS because as I've already said, the FOS is very cosy with these companies and I can imagine that eventually some compromise recommendation would be made – and it would be you making the compromise. Additionally, it would be a long time anyway and the finance company would hope that you would eventually suffer from fatigue.

The finance company has instructed you not to drive the car – and I think that you must obey their instruction and also the fact that they have put this in writing is justification. You say you know the owner of the garage – are they going to charge you storage? Would they allow you to leave the car there free of charge – but on the basis that you would attempt to claim a reasonable storage fee and paid over to them when this is all finished. Please find out. This would be one of the ancillary losses that you would reasonably incur as a result of the breach – and also as a result of the instruction for the finance company.

At some point, you can leverage this against the finance company by informing them as well as the garage that as they have instructed you not to drive the vehicle that you have been obliged to leave it in storage and that this is incurring a weekly storage fee and as they have refused to comply with their consumer obligations under the 2015 act, not only has this fee been reasonably incurred, but also you will be pursuing them to reimburse you for it.
This will add additional pressure.

Anyway, I think it has all been spelt out to you – and I think you need to make a decision. The more quickly react, the more assertive and confident you will appear to be. You need to keep the garage and the finance company on the back foot.

 

[just_jue]

Hi Bank Fodder,

 

I am going to see the garage owner where is being kept this afternoon so will speak to him about storage.

 

I now have the call logs, and my son in law has rung the finance company on 15 different times trying to get some help with the problem.

 

I will get a letter drafted for the garage later and will send a copy to the finance company.

[BankFodder]

And as your son-in-law is doing so much on the phone, has he had the benefit of our customer services guide? You've been here an awful long time and so you should be thoroughly familiar with the customer services guide and our very strong recommendation that calls are recorded. I hope that you have passed this information onto your son-in-law. If not – big fail. If you have passed the information on and he isn't taking any notice then big fail for him too

[just_jue]

So a SAR to the finance company asking for all details and all telephone conversation would be worth doing as well.

[BankFodder]

Yes, you may as well – why not – but obviously you are recording your calls. I think you should attend to this.

Send the SAR – but that takes 30 days, assuming that they comply and that they comply with the complete disclosure.

Frankly I think you need to move more quickly.

[just_jue]

Hi Bank Fodder,

 

I've been over to the garage where it is being kept and it is fine there at the moment.

 

I am drafting a letter at this moment to the garage, do you think I should mention about the missing receipt to the 100k service or leave that at the moment?

 

With regards to the finance company I will send them a copy and do a letter once we have their mechanics report.

 

Would it be a waste of money getting an RAC or AA vehicle inspection done to see what they say and if there is any other problems?

 

JJ 

[BankFodder]

Post the letter here before you send it off please. I certainly think that the missing documents should be referred to although probably in a rather more pointed fashion. Post the letter and will have a look and amended as necessary.

In terms of getting other inspections, is there any dispute as to the condition of the vehicle? Have the garage themselves agreed the condition of it?

Good news that it's fine at the garage for the moment – but you should ask them what storage fee would be if it went on too long – and in any event if you brought acclaim and won it. No point in giving up an opportunity to get a bit of extra money and if these people are doing you a favour then you may as well tell them that you are prepared to pay for storage if you win your case and if a claim for storage fees is met.

It will certainly be reasonable to claim for storage fees – although you would have to produce an invoice for them at some point. However, even a pro forma invoice stating what the tariff is will probably be good enough to begin with

[just_jue]

Here is my first draft:

 

 

Dear Sir or Madame;

 

With regards to the above vehicle that was purchased from you on the xxxx,

 

there are now some serious problems with the Automatic gearbox and for the last 3 weeks it has been at an independent garage who have diagnosed the problem but cannot guarantee this will cure the problem because the gearbox has not be serviced within Fords mileage guidelines.

 

I have the paperwork to show that the gearbox was indeed serviced at 35,000 & 70,000 miles well within the guidelines.

 

The service book has been stamped at 100k for a service but no paperwork was included which is very strange as everything that has been replaced or serviced with this car has been included.

 

After speaking with the garage that did the 100k service they can confirm that the minimum service was done which did not include the gearbox, so the gearbox has gone well over the specified guidelines.

 

I would like to point out that since the car has been collected, I have only done 1,500 miles so do not believe any fault would be down to ‘wear & tear’.

 

Under the Consumer Rights Act 2015 this car should be of satisfactory quality, fit for purpose and as described. My rights have been breached because the car you sold me is faulty. I would like you to put this right by repairing the car at your cost at an independent garage.

 

I expect a full response with 5 working days otherwise I will be taking the matter further.

[dx100uk]

On 24/11/2020 at 15:15, just_jue said:

After doing some investigating it seems that these gearboxes must be serviced every 35,000 miles.

It was done at 35 & 70 k but not for 105k and the car has now done over 110k

, if they are not serviced they nearly always fail needing a new gearbox

 

[just_jue]

1 minute ago, dx100uk said:

 

Yes that what I have been finding out

[just_jue]

Should of added to the draft:

 

The finance company have advised us not to drive the car until the fault has been rectified.

[BankFodder]

Have you found out what the storage fee might be?

Also, something crosses my mind. Although you are required by the consumer rights act to give them a single opportunity to address the defect, the defect actually is not only the fact that the gearbox has failed but also that it missed its service and it doesn't have a true service history.
Is this correct?

If this is the case, then of course it is possible to repair the gearbox but it is not possible to repair a defective service history or to set the clock back and carry out a service at the proper time. On that basis it seems to me that it would not be possible to remedy the defect and I think that that might give you an opportunity to reject the car completely.

So the question is – if the car was properly repaired would you prefer to hang onto it – or would you rather get free of this dealer completely and then start looking around for another vehicle.
 

[just_jue]

I've spoken to my son in law and because the gearbox can be very expensive to repair, he would prefer to reject the car.

 

The garage isn't going to charge storage at the moment.

 

I feel they have been mislead regarding the service history.

 

How difficult would it be to get the finance company on our side in rejecting the car and sending back to the dealer?

[just_jue]

I have now picked up all the paperwork that came with the car.

 

There is paperwork to show the gearbox was serviced at 77k with a standard service at 92k, in the book it is stamped at 106k but no paperwork, we do have a email from the service garage that say a basic service was carried on at 106k but the gearbox wasn't serviced.

 

Also have the quote from my garage for a service of the gearbox, it works out at £375 but is not a guarantee that this will rectify the problem

 

Still not received the report from the finance company regarding their mechanics findings.

 

If anyone could let me have feedback to my draft letter is #36 that would be helpful.

 

Thanks again

 

JJ

[BankFodder]

I wouldn't hold your breath about the report from the finance company. They will probably prefer to give you as little as possible.

Could you let us know little bit more about the 106000 mile service which was stamped into the book. If you look at the proper makers service recommendations, does it say that this service should normally include a gearbox service?

Do you have any official recommendation that the gearbox must be serviced every 35,000 miles?

We'll get onto your letter later but I'm afraid it needs a lot of work

[just_jue]

Hi, I've spoken to Ford and they say it must be changed around the 35k interval.

 

Annoyingly there is only a service book that says routine service every 12k.

 

I'm trying to find a service schedule for the car but don't seem to be able to find one online

[BankFodder]

Did you record your call with Ford?

[dx100uk]

21 hours ago, just_jue said:

I've spoken to my son in law and because the gearbox can be very expensive to repair, he would prefer to reject the car.

 

The garage isn't going to charge storage at the moment.

 

I feel they have been mislead regarding the service history.

 

How difficult would it be to get the finance company on our side in rejecting the car and sending back to the dealer?

 

you can't ....you have to allow one chance to repair ....you are outside of 30 days ..

IF then the car is not fit for purpose you can reject it .

 

pers i wouldn't be involving the garage /dealership or whomever you got the car from at all.

you go after advantage, it's their car, should it still be crap after the 'repair'. let them argue it out with the dealership.

 

i dont think it matters or not if the gearbox should be have been serviced every 35k and wasn't. 

 

dx

 

[just_jue]

8 minutes ago, BankFodder said:

Did you record your call with Ford?

No they have written it on headed paper for me

[BankFodder]

I agree that it doesn't especially matter whether it's been serviced – but it would certainly be a nice touch and I'm all for building the evidence against them so that all the Ts are crossed and the Is are dotted. That way it becomes a watertight case and the problem is beyond dispute.

You have just crossposted while I'm posting this and I see that in fact you have it in writing from them – which is much better than recording the call. However, I already pointed out to you that you should be recording calls

[BankFodder]

In terms of who to sue, I'm still in favour of suing the garage. I prefer an unconventional route and I think that it will put the garage in a position where they start putting pressure on the finance company and I can see that the garage and the finance company will become at loggerheads with each other and that suits us just fine. It's possible even that the garage would bring the finance company and is the second defendant – and I think that would be helpful as well.

I know full well that the direct right of action should be against the finance company, but I see some advantage in going for what I consider to be the weaker party – and as I say in an unconventional way. When the garage persuades you to purchase on hire purchase, presumably they recommend advantage finance – and that is because they are used to dealing with them and also they are used to being shielded by them if things go wrong.

[just_jue]

Doing some research online there seems to be a lot of problems with this gearbox and others of the Ford range across the world, with some legal action against Ford and their dealers so I would of thought that it would be common knowledge for a car dealer.

 

I didn't record speaking to an independent Ford garage about the gearbox