People v On:line Finance aka GMAC **WON**

[Redmountie999]

Sent On:line Finance a pre lim letter on 28th December 2006 and today received the following

 

Dear Mr A N Another

 

Thank you for your letter dated 28th December 2006.

 

Firstly I would like to confirm that GMAC do not charge for unpaid Direct Debits or exceeding overdraft limits. These instances do not affect GMAC. These are bank charges as it is your bank that must respond when a Direct Debit cannot be paid and it is your arrangement with them that is affected when an overdraft is exceeded. I would suggest you address your concerns regarding these charges with your bank.

 

The charges you have incurred from GMAC were due to yuor breach of our contract.

 

You refer to recent commendations set by the OFT which I would like to clarify for you.

 

The new OFT regulations realte only to 1 £12.00 limit on default charges incurred by misuse of credit cards. The agreement you entered into with GMAC, was a conditional sale agreement regulated by the Consumer Credit Act 1974 which was inclusive of clauses whereby you agreed to indemnify us for any costs incurred.

 

A tariff of these cahrges would have been included within your 'welcome pack' at the beginning of your agreement and can be found in the Terms and Conditions of your contract.

 

We must therefore aver that you have agreed to pay these charges from the outset and thus do not accept your claim for re-imbursement.

 

Should you have any further quesries regarding this matter, please do not hesitate to forward any written correspondence for my attention.

 

Yours Sincerely

 

Mark Rowan

Customer Complaints Officer

 

Any suggestions as to how to deal with this letter guys? If I was to take them to court to try to get these charges re-imbursed would I be in a position to win?

 

Need help guys i'm not sure what to do next.

 

I wasn't aware that On:line Finance was a trading company under GMAC.

[Milo19]

Ok, firstly, have you a list of charges from Online finanace, and those charges total £735. However, be sure to look at the statement of charges carefully. I found it sometimes a little confusing, a the total on the right hand side is a running total.

 

With regards to their comments regarding the conditional sale bit, its crap! Its a letter designed to found you off. They are correct in someways, however, the fondlemental thing is this, they cannot charge more than it cost them when your late with a payment.

 

This was my second letter that I sent, which they ignored so I started a court claim. They ignored that, so i entered a judgement, they also have failed to pay, so yesterday I issued a warrant!

 

" Thank you for your letter dated Thursday 9th November 2006. I must say I am disappointed with your response.

I understand that the said charges are in all likelihood disproportionate to the costs that you would actually incur for sending a computer generated letter, returning a payment etc. As such, this penalty is unlawful at Common Law, Statute and recent consumer regulations and would constitute a penalty under the Unfair Terms in Consumer Contracts legislation.

Such disproportionate charges are considered to be unfair per se by the OFT who reported on 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

If you believe that the charges are proportionate to the costs you have incurred, could you please demonstrate this by providing a full breakdown of those costs or a pre-estimate of your losses. Please note that I do not require an explanation as to why these charges were made; I am fully aware of the terms and conditions of my finance agreement. What I require is a breakdown of your costs in order to reassure me that the charges are justified.

I calculate that you have taken £210.00

I enclose a schedule of the charges which I am claiming with this letter

Having taken legal advice on this matter it is very clear, as you will no doubt be aware, that English contract law requires such charges to be a genuine pre-estimate of your losses. In the case of Castaneda and Others v Clydebank Engineering and Shipbuilding Co Ltd., (1902) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract as opposed to a charge which represents a penalty. This was upheld in the case of Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.

In addition to this, your charges would represent an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SL. 1999/2083). Your charges would constitute an unfair penalty under Schedule 2 of the said regulations which provide an indicative and non-exhaustive list of terms which may be regarded as unfair.

Under paragraph 1(e) of schedule 2 this specifically includes terms which have the object of requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation.

I would also like to bring to your attention the following statement by the Office of Fair Trading: - The OFT now expects all credit card issuers to recalculate their default charges in line with the principles set out in a statement published today and to take urgent action where needed to reduce the level of credit card default fees. The industry has until 31 May to respond to the statement. These principles also apply to default charges in other consumer contracts such as those for bank overdrafts, store cards and mortgages.

The fact that I signed the finance agreement containing the tariff of charges does not make them enforceable; as I’m sure your legal department is fully aware.

I would also like to advise that if you do not accept my request then you will leave me with no alternative but to recover this money through the Courts.

I trust this can be sorted out quite amicably and I look forward to your earliest response.

You have 7 days remaining within the deadline I gave you in my previous letter to return this money that has been unlawfully taken. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments

After that, there will be no further communication from me and I shall issue a claim at the expiry of the second deadline.

Thank-you for your help and co-operation in this matter."

[MARTIN3030]

Dont be fobbed off.If you have the figures then the way forward is to send the priliminary letter asking for it back.

If you have already done this then after 14 days you can then send the letter before action.

If they have already responded saying they are making no refund Before your 14 day deadline then you are free to send the lba then .

Hope this is clearer.

[Redmountie999]

The latest on this saga i that I received a reply thir morning to my LBA

 

Dear Mr A N Another

 

Thank you for your letter dated 8th January 2007.

 

Further to your comments on charges you have paid over the duration of your agreement we do not accept our charges to be illegal unfair under any regulations buy the Office of Fair Trading. We also do not consider any charges extortionate when compared to those currently being made by our competitors.

 

Please refer to your agreement which allows for charges to be made. I must reiterate that a tariff of charges would have been included in your welcome pack. We must therefore aver you have agreed to pay these charges from the outset and thus do not accept your claim for reimbursement.

 

You refer to a recent statement set out of the OFT which again I would like to clairfy for you as this statement does not affect GMAC.

 

The new OFT regulations relate only to a £12.00 limit on default charges incurred by misuse of credit cards. The agreement you entered into with GMAC, was a Hire Purchase agreement by the Consumer Credit Act 1974 which was inclusive of clauses whereby you agreed to indemnify us for any costs incurred.

 

Please be aware that we are not obliged to provide you with a breakdown of charges and so I advise that you seek independent legal advice should you wish to proceed with this matter.

 

Now i'm sure you guys have all seen this standard fob off letter before, but being new to the world of CAG and taking on the big boys and girls I haven't.

 

I'm slightly worried about there repeated comments that the new OFT regulations don't relate to them as my agreement with them was for Hire Purchase regulated by the Consumer Credit Act 1974.

 

They also give me a slap in the face by saying they are not obliged to provide me with a breakdown of their true costs????????

 

I'm assuming after the negative response to my LBA I should now file POC at County Court. If this is the case could anyone help me with the actual POC with regards to setting it out for Online / GMAC

 

Your help and thoughts would be appreciated

[Milo19]

Personally, I write back with something like:

 

Many thanks for your letter dated ..........

Unfortuantely you have failed to return these illegal charges to me within the timespan I have allow, which i believe is ample time for an institution of your size.

Whilst the OFT statement was aimed at the misuse of credit cards, the fondlemental point is the same, if a charges are to be applied, then they MUST be a true representation of the cost incurred by the creditor.

I believe this is not the case, and I am happy to prove this in a court of law.

As a consequence, I have no interest in arguing the validity of my claim with you and I will not waste any more of my time in the pointless exercise of “postal ping-pong”, I will simply file a claim with the small claims court for the total sum of £...... plus interest and costs.

Yours

Redmountie999

[Redmountie999]

Milo, much appreciated mate. I'll do a letter to this effect later today.

 

Can you help with what to put on the POC!!! As it's a finance company the wording and content of the normal POC will be slightly different i'm guessing

[Milo19]

This is what I put in my POC, it was never acknowledged, so I entered judgement. That wasn't paid so I have now issued a warrant.

 

**EDITED**

Please use these http://www.consumeractiongroup.co.uk/forum/bank-templates-library/681-4-particulars-claim-n1.html

 

 

Remember, change the dates to when the first charge was applied to the date of issue on MCOL (2), enter the interest amount (3), and then the daily rate(4) - (total of charges(1) devided by 0.222)

 

 

Also, take out the numbers in blue. Post POC here first before issueing on MCOL!

[MARTIN3030]

Red,our bank template letter for both preliminary and letter before action are suitable for your use,since they specify the points that you want them to see in relation to statute law.

I would not pussyfoot about with them if they are staling and giving excuses,simply move to the next stage.

Change any parts that you need to.

The POC is the same although afain you may need to customise it by taking references to banks out and adding your own details.

[Milo19]

Red,

 

Have I mis-read, i thought you'd done the pre-lim and LBA?

 

Martin, could you take a look at my thread please???

http://www.consumeractiongroup.co.uk/forum/barclays-bank/57011-allocation-hearing-new-post.html

[Redmountie999]

Milo,

 

Sowi for any confusion caused.

 

I've done Pre-lim and LBA. The letter I received this morning was in response to the LBA.

 

I would like to have submitted poc - N1 this morning in court but I don't have time to complete it and I wasn't sure what to put on it.

 

Now i'm a little wiser courtesy of Milo i'll do it tommorrow ready for submitting my POC in county court Monday.

 

I'm assuming the courts are open today!!!!

[Milo19]

For some reason my post was changed??!! :confused:

Any prob's PM me.

[Redmountie999]

Agggggggggh

 

Took N1 - Poc to court and they were closed.So I rang the court and got through to a clerk working there. She told me to post the notice of claim through the letter box along with payment in an envelope do I did. Was I ok to do that. I've not got a receipt or copy of the N1???

[pandhandj]

Hi redmountie,

 

I am looking to send a SAR to on:line, but I binned my doc's a couple of years ago when I terminated my HP agreement with them! I have been trying to work out their new address at GMAC, which I think is -

 

on:line finance

GMAC UK PLC

Wesley House

19 Chapel St

Luton

LU1 2SE

 

can you let me know if this the address you used? and did you use a "cutomer relations dept" or something similar?

 

thanks in advance for your help

 

Paul

[Redmountie999]

Hi redmountie,

 

I am looking to send a S.A.R - (Subject Access Request) to on:line, but I binned my doc's a couple of years ago when I terminated my HP agreement with them! I have been trying to work out their new address at GMAC, which I think is -

 

on:line finance

GMAC UK PLC

Wesley House

19 Chapel St

Luton

LU1 2SE

 

can you let me know if this the address you used? and did you use a "cutomer relations dept" or something similar?

 

thanks in advance for your help

 

Paul

 

Paul I sent it to the following address:-

 

Mark Rowan

Customer Complaints Officer

General Motors Acceptance Corporation (UK) plc

Wesley House

19 Chapel Street

Luton

Bedfordshire

LU1 2SE

 

If you haven't already done so mate, start your own thread so that I and everyone else can keep progress on how u get on with them. If you need any help be sure to check my thread or pm or any of the thread mods.

[Milo19]

I used:-

Heol Gamlas

Parc Nantgarw,

Treforest Industrial Estate

Treforest

Cardiff

CF15 7QU

[Redmountie999]

Yeah that's fine paul.

 

I originally used that adrress to send my pre lim letter. The letter I had back was from Mark Rowan at the address I just posted. It appears that GMAC has taken over or On:Line Finance.

[pandhandj]

Redmountie,

 

thanks for the info - I'll get the SAR off on the morning, once I get the ball rolling, I'll give everyone an update.

 

thanks again,

 

Paul

[Redmountie999]

Received a letter from GMAC today.

 

Dear Mr A N Another

 

I would like to conclude that the charges you have incurred were due to your breach of our contract and that your comments regarding recent media coverage does not include your finance company.

 

I would like to apologise that I am unable to assist you further with this matter and if you feel the conclusion of the complaint is unsatisfactory I would ask that you seek independent legal advice.

 

Yours Sincerely

 

Mark Rowan

Customer Complaints Officer

[Redmountie999]

So in view of their failure to provide me with a breakdown of their costs and to reimburse the charges I'm issuing a particulars of claim tommorrow in my local court.

 

Here is the poc - Anyone take a look and see if it's ok please.

 

Money claim for return of penalty charges applied to the Claimants account by the Defendant

Charges £735

Interest pursuant to section 69 County Courts Act 1984 at the rate of 8% from (content removed) to (content removed) of £215.11 or at such rate and for such periods as the court deems just and also interest at the same rate up to the date of judgement or earlier payment at a daily rate

Court Fees

1. The Claimant had a Finance Agreement (content removed) with the Defendant which was opened on or around (content removed) and closed on or around (content removed).

2. During the period in which the Agreement was operating the Defendant applied numerous charges to the account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were applied in accordance with the terms of the contract between itself and the Claimant.

3. A list of the charges applied is attached to these particulars of claim.

4. The Claimant contends that:

a) The charges applied to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

5. Accordingly the Claimant claims:

a) the return of the amount of money in respect of charges in the sum of £735 and any interest charged thereon;

b) Court costs;

c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges of £215.11 or at such rate and for such periods as the court deems just and also interest at the same rate up to the date of judgement or earlier repayment at a daily rate.

6. Alternatively, if the charges are a fee for a service, then they must be reasonable under S.15 of the Supply of Goods and Services Act (1982).

[Milo19]

Looks ok to me, but I used the MCOL template!

[Redmountie999]

Milo,

 

N1- Particulars of claim and Schedule of Charges issued at county court as of 26th January 2006. Still awaiting an acknowledgement from On:Line aka GMAC.

[Redmountie999]

Okay On:Line had until the 14th February 2007 to reply. They failed to reply to my claim and on 14th February 2007 I requested that judgement be made by default. Because I thought that On:Line wouldn't pay up I also served them with a warrant of execution.

 

They today wrote out a cheque for the whole amount. I'm just waiting for it to clear now and then I will withdraw the warrant with the court baliff.

 

Thank yooooooooou to CAG and everyone that assisted me in this matter.

[Redmountie999]

Hi guys,

 

Good news On:line paid up in full. I have now had £1030.11 returned.

 

Thank you to ALL who helped and guided me in the right direction.