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

[BankFodder]

Don't tell them about a possible court action. Just get a report or more than one report that corroborates your position.

[just_jue]

I thought it might be better to be upfront.

 

Still nothing from the original garage

[BankFodder]

Yes, it's better to be upfront – but if it means that you can't get any kind report then some kind of report is better than nothing.

Nobody is telling you to be dishonest. Simply that there seems to be no particular need to volunteer this information – particularly if it is preventing you getting the reports that you need

[just_jue]

I have now spoken to three companies that doing independent engineer reports and all of them cannot do anything without the gearbox being removed from the car and cannot believe that the one done from the finance company was done without the removal of the gearbox.

 

So we are back to either paying for the repair and trying to get the inspection done at that time.

 

The garage haven't responded at all to the letter we send them.

[BankFodder]

Okay I'm just trying to get up to speed.

At some point we drafted a letter of claim – was this ever sent?

You had the full report from the finance company mechanic which says that it is a progressive age-related deterioration.
However, your suggestion is that the damage to the gearbox occurred as a result of neglect – in that the correct service schedule was not applied to it on its third 35,000 km service – is that correct?
Can you just go the the omissions from that service schedule please?

I think you have absolutely to begin some legal action now because you are going to make any headway at all.

There was a discussion as to whether or not to sue the dealer or the finance company. I still prefer the dealer because they are less well resourced than the finance company. My colleague prefers the finance company.
I really can't understand what is best although I lean towards suing the dealer on the basis that you enjoy third party rights. Of course they will try to say that you are suing the wrong party right then you would have to reissue against the finance company.
It would be unconventional to issue against the dealer – but I don't see why the Contracts (Rights of Third Parties) Act shouldn't apply

You will be suing for the refund of the vehicle and any other ancillary expenses which you have incurred. If you begin the claim online then it would cost you £410 to bring a claim of this value – and then there would be the hearing fee which which is about another £335. So you are looking at a fair chunk of money to bring this claim and I'm afraid that amounts to the most of your risk factor. If you lose, then you lose your claim fee of about £750. If you win then you get it all back. You would claim interest as well so that would be a little bit extra – at 8%.

Don't imagine it's going to be easy.

I think the basis of your claim would be that you are entitled to have a vehicle of satisfactory quality and to remain in that condition for a reasonable period of time – a satisfactory quality being measured according to the expectations of a reasonable consumer. Not the expectations of a reasonable mechanic or any other expert in the field
 

[BankFodder]

Incidentally, I find the comment that it would be impossible to examine this gearbox properly without removing it to be very useful.

I'm quite sure that their mechanic did not remove the gearbox. If you get one or two people to give you something in writing saying that the gearbox would need to be removed in order to carry out the inspection then I think it will be extremely easy to undermine the credibility of their witness and in fact you could give notice that you require that person to attend court in person to give evidence .

 

[just_jue]

Thank you BF,

 

We did speak about going after the garage first, we did send them a reject letter that they have had the letter for a month now.

 

I was going to ask you the same about their independent report, and if you remember you put a review on their trustpilot page as well as I did.

 

I am awaiting a call back from another company about a the report and will ask them to email over that they need the gearbox removed.

 

On their report company website it did state about cars over 100k mileage that they cannot responsible . And the inspection can only describe and/or identify actually found which are reasonable capable of being found upon a visual examination of the vehicle AT THE TIME OF INSPECTION.  This contradicts what they put on their report as saying the gearbox was fine a POS and was down to wear and tear as unless they inspected the gearbox on the purchase date they would not be able to tell this. 

[BankFodder]

So please can you remind me.

Ford say that if the service and carried out correctly that 35,000 miles then the gearbox failure which you have experience should be expected – correct?

Can you just remind me of what it was which should have been done which apparently has not been done and your evidence for this

[just_jue]

We have paperwork of the gearbox service on the 35k & 70k but the 100k service there is no paperwork just a stamp in the book, this was done by the previous owner.

Ford wont send over the list of the work done on the 100k service but have emailed to say that a basic engine service was done and not the gearbox service which Ford recommend done at the 100k point.

They car was collected with 107k on the clock and they have only done 1500 miles before the gearbox problems

[BankFodder]

Okay well this gives me a great deal of confidence. If you can get one – or better still, to – or even three people to say that the gearbox would be removed for the finance company mechanic to which the kind of conclusion which he did – then I think that destroys their evidence.

So now it's a question of who to sue – and do you have the money?

Please can you list out all the losses that you have incurred as a result of the loss of use of your car

[BankFodder]

I reflected a little and seeing that it is such an expensive business to bring the action – and although I think it is a mineral risk, there is a risk that they might successfully challenge your choice of defendant, it is probably prudent to sue the finance company. However, you might as well see both of them – first defendant and second defendant. It doesn't cost anything extra.

At least that means that you can then compel them both to disclose relevant documents whereas if you sued the finance company on their own, they would have access to the garages documents but you wouldn't necessarily have access to them. I think that suing them both puts you all on a more level playing field

[just_jue]

I will be helping my son in law with the money to start with the action. 

 

Will they also be able to try and claim for the insurance and tax they have to pay for but been unable to use? 

 

I agree with taking action against both of them. 

 

 

[BankFodder]

Please list it all out so we can have a look. I've already asked you to do that. We will have to see what is recoverable but we need to keep it less than £10,000 so it fits well within the small claims limit.

£9000 would be better

[just_jue]

Will we be going for the full amount of the car, or for the cost of a replacement gearbox? 

[BankFodder]

Frankly I would get rid of the car. You may as well get a quote for the replacement gearbox – but if you simply replace the gearbox then you still have a difficult relationship with the dealer and also the finance company and it seems to me that you need to wash your hands of the lot of them.

Also, don't forget the you have bought a vehicle of about hundred thousand kilometres this means that you wouldn't be entitled to a brand-new gearbox. You would be entitled to a proportionate value so you would have to consider what would be the expected life of the gearbox – properly serviced and then subtract 100,000 as a percentage of that. This might mean that you are only entitled to say, one third of the value if it is calculated that two thirds of the expected life of the gearbox had already been used up.
This would put you in a very disadvantageous position value -wise. So for instance, if it was correct that a gearbox, properly maintained, would only be expected to last for 150,000 km, you bought the car at 100,000 km and that means that you would be only entitled to expect 50,000 km. So if the cost of the replacement gearbox was say, £1200, you would only be entitled to an award of £400 which would represent the remaining value of the gearbox.
Please let me know if you don't understand this.

Therefore, I think that your argument should be that it was a catastrophic failure and therefore a fundamental breach of contract which means that you have been deprived of the entire benefit of the contract. This amounts to a termination of the contract by the dealer/finance company and you are accepting the termination and now you want your refund.

 

[just_jue]

Thank you for explaining to me about the gearbox it does make sense what you have said. 

 

I will speak to my son in law tonight and get him to list everything. 

[just_jue]

They have spent out for 5 months £395 insurance & £87.50 tax and well as keeping up their payments to the finance company.

 

After looking through all the paperwork again it seems the payment for the car was sent to a different company and not the company that sold it.

 

Sorry if I sound a bit confused but if we take action for the full amount is it to cancel the whole sale 

[BankFodder]

Yes – it will amount to cancelling the wholesale.

You will attend to enforce your rights under the consumer rights act – and also under contract law and demand an entire refund.

Once that happens, it will be straightforward to cancel the finance agreement.

It doesn't matter too much or the payment went to. However, please tell us what these various companies are because maybe we will uncover something else of interest.

[just_jue]

It seems the Credit Intermediary (Selling Dealer & Agent) is listed as Zuto Ltd Cheshire. This is the other end of the country to Crawley in West Sussex

[BankFodder]

Well it all seems rather convoluted – and I'm not sure how relevant it is.

As I suggested, I think should go against the finance company and the dealer and see what happens.

If you are happy to do this then draft a letter of claim and post it here and we'll have a look.
Also it might be an idea to draft a particulars claim. I think it can be pretty brief – enough to draw out their points of the defence and then you can come up with your responses. Don't give them too much information at the beginning
 

[just_jue]

Here is my first draft of a PAP letter:

 

Dear Sir or Madame.

 

As it has not been possible to resolve this matter amicably, and it is apparent that court action may be necessary, I write in compliance with the practice direction on pre action conduct.

 

On the 9^th September 2020 I entered into an HP agreement with Advantage Finance to purchase a Ford Kuga 2013 registration xxxxx.

Within less than 2 months and a total 1500 miles the car developed a gearbox problem.

After speaking to Ford regarding this matter they confirmed that the gearbox must be serviced every 35k, in the service receipts that were supplied with the car the first two have been done but there is no paperwork for the most recent, Ford have confirmed that the most recent service was only for the engine and not the gearbox as recommended by them.

 

From you I am claiming that under the Consumer Rights Act 2015 you have supplied a car that is not fit for purpose and is not of satisfactory quality. It was also sold as having a full service history where this now is no apparent

 

From you I am claiming: purchase price of £xxxx plus, 2 months of road tax and 2 months of insurance.

 

In accordance with the practice direction on Pre-action conduct I would request that you provide me with copies of the follow document:

 

A full breakdown of 100k service that was not included with all the receipts.

A full breakdown of all work carried out whilst you had taken ownership of the car.

 

 

 

I can confirm that I would be agreeable to mediation and would any other system of Alternative Dispute Resolution (ADR) in order the avoid the need for this matter to be resolved by the courts.

 

I would invite you to put forward any proposals in this regard.

 

In closing, I would draw your attention to paragraph 15 & 16 of the Practice Direction which gives the courts the power to impose sanctions on the parties if they fail to comply with the direction including failing to respond to this letter before claim.

 

I look forward to hearing from you within the next 28 days.

 

Should I not receive a response to my letter within this time frame, then I anticipate that court action will be commenced with no further reference to you.

 

[BankFodder]

58 minutes ago, just_jue said:

Here is my first draft of a PAP letter:

 

Dear Sir or Madam

 

As it has not been possible to resolve this matter amicably, and it is apparent that court action may be necessary, I am writing in compliance with the practice direction on pre action conduct.

 

On the 9^th September 2020 I entered into an HP agreement with Advantage Finance to purchase a Ford Kuga 2013 registration xxxxx.

Within less than 2 months and a total 1500 miles the car developed a gearbox problem.

The manufactures of the vehicle, Ford, have confirmed in writing that the gearbox must be serviced every 35k.

The service receipts that were supplied with the car show that the first two services have been correctly carried out but paperwork for the most recent service is missing.

Ford have confirmed that the most recent service was only for the engine and not the gearbox as recommended by them.

Ford have also confirmed that a failure to service the gearbox correctly at the required interval is like to produce exactly the kind of failure that we have experienced.

 

It is clear that the vehicle is it is clear that the vehicle is not a satisfactory quality and that you are in breach of your contractual obligations.

 

Your breach of contract has effectively despite was of the entire benefit of the contract and therefore is a fundamental breach the contract is terminated and we are released from our obligations under it.
 

Accordingly, I require that you make arrangements to collect the vehicle, to terminate the finance agreement and to refund all the monies that have been paid under that agreement.

Additionally, in reliance on the contract I have incurred additional losses – in particular the expenses associated with taxing and ensuring the vehicle and I require the reimbursement of these costs which are now wasted.

This

 

A full breakdown of 100k service that was not included with all the receipts.

A full breakdown of all work carried out whilst you had taken ownership of the car.

 

 

 

I can confirm that I would be agreeable to mediation and would any other system of Alternative Dispute Resolution (ADR) in order the avoid the need for this matter to be resolved by the courts.

 

I would invite you to put forward any proposals in this regard.

 

In closing, I would draw your attention to paragraph 15 & 16 of the Practice Direction which gives the courts the power to impose sanctions on the parties if they fail to comply with the direction including failing to respond to this letter before claim.

 

I look forward to hearing from you within the next 28 days.

 

Should I not receive a response to my letter within this time frame, then I anticipate that court action will be commenced with no further reference to you.

 

 

 

 

[BankFodder]

I started editing your proposed letter – but then as I went into it I realised that it was fundamentally flawed so I stopped.

You will see some of the edits in the post above which I would suggest that you assimilate into a another version of the letter.

However, I see that at the beginning of your letter you are alleging their breaches of contract – the problems of the vehicle and so forth and yet in the second part of the letter you go on to ask them to provide you with certain evidence.
This effectively is saying that you are making these allegations but you don't have the evidence to support them and you want the finance company to provide you with that additional evidence. This effectively signals that you are not yet ready to make the allegations which in fact you have gone ahead with in the first part of your letter.

Do you understand?

So if you feel that you still need some evidence then I think you should write a separate letter for that – although don't expect it to be forthcoming but of course it may well be a useful paper trail.

Maybe you can explain here what other evidence you believe you need because I thought that you had everything already.

Finally, you have gone on to suggest alternative dispute resolution as a possible way forward. I don't think that a letter like this is a place for these kind of suggestions.

I think your letter should be much more assertive – and I think that you will see that the style I have suggested in my amendments are a bit more to the point.

If they want to go to mediation then they can either suggest it – or after you have issued the claim, they can indicate that they would be prepared to go to mediation.

If you are prepared to bring the claim then I think that you should be unequivocal about it and you should leave it to them to ask for a way out. I don't think it's for you now to leave open doors.

[just_jue]

Thank you for input. 

 

I had read a couple of pap templates and thought that you had to outline the details you have and what details I need from them to take it further. 

 

I will redo it over the weekend 

[BankFodder]

Maybe you could link me to those templates please. You might be right – but I generally tend to launch pretty quickly into a letter of claim.

It concerns me that you are asking for more material – and this suggests that you aren't ready. Can you let me know what the status is please