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  • FIRST POST
    • mc303
    • By mc303 15th Mar 17, 4:26 PM
    • 70Posts
    • 5Thanks
    mc303
    Yes it's The Car
    • #1
    • 15th Mar 17, 4:26 PM
    Yes it's The Car 15th Mar 17 at 4:26 PM
    hi, i have read up as much as i can... i will try to keep this short
    test drove second hand car, noticed fault, dealer said fault will be repaired before hand over, hand over day while driving home noticed fault still present, told dealer, returned car 3 times for repair, fault still present, asked dealer for refund, dealer said no, went to CC Company under section 75 breach of contract
    the consumer rights act 2015
    Under section 24
    sub section
    (5)A consumer who has the right to a price reduction and the final right to reject may only exercise one (not both), and may only do so in one of these situationsó

    (a)after one repair or one replacement, the goods do not conform to the contract

    CC refused section 75
    took case to TFO, TFO said no, reason being that dealer is offering repair, so here is my question, i was turned down because the dealer offered repair, i returned the car to them 3 times, i gave them 3 chances to repair, they denied the fault i complained about existed, i had 4 independent reports all clearly stating the fault is present, why oh why have i been rejected for this claim?? am i missing something?
    any advise truly appreciated.
    Thank you
Page 2
    • waamo
    • By waamo 15th Mar 17, 8:28 PM
    • 1,723 Posts
    • 2,041 Thanks
    waamo
    What is the fault?
    This space for hire.
    • wealdroam
    • By wealdroam 15th Mar 17, 10:42 PM
    • 18,640 Posts
    • 15,521 Thanks
    wealdroam
    yes told the FO i took the car back 3 times, dealer would not accept fault, dealer repaired other faults with the car would not accept the fault i was suggesting, i even got a report from the main dealer which cost £80 , they confirmed the fault, the FO said there was a new MOT on the car ?? yes i think i should up appeal the decision to the Ombudsman
    Originally posted by mc303
    What has an MOT got to do with it?

    If you can't write proper sentences then I'll have to leave you to it.

    You have been asked several times...
    1) did you use a credit card?
    2) was it a chargeback or a section75 claim that was rejected?

    You need to start answering questions.
    • mc303
    • By mc303 16th Mar 17, 10:35 AM
    • 70 Posts
    • 5 Thanks
    mc303
    sorry, half was paid by CC half by cash,
    the FO said there should not have been a fault as it had a new MOT on the car?
    The CC did a chargeback, which was later defended and reversed, i explained to both the CC and the FO i did not want a chargeback but a breach of contract under section 75
    • mc303
    • By mc303 17th Mar 17, 3:09 AM
    • 70 Posts
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    mc303
    Normally the Financial Ombudsman invites your comments on its proposed decision and allow you to appeal up the decision up to an Ombudsman if you are not happy?

    By the way, FOS decisions are public .ombudsman-decisions.org.uk so there are no issues giving us a link to the decision in your case.
    i did a search and found nothing
    • naedanger
    • By naedanger 17th Mar 17, 10:13 AM
    • 2,178 Posts
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    naedanger
    i did a search and found nothing
    Originally posted by mc303
    http://www.ombudsman-decisions.org.uk/

    I suggest you select the option for "upheld" and enter "section 75" in the search field and widen the date range.

    The website seems quite slow to update.
    • mc303
    • By mc303 17th Mar 17, 10:46 AM
    • 70 Posts
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    mc303
    [QUOTE naedanger

    I suggest you select the option for "upheld" and enter "section 75" in the search field and widen the date range.

    The website seems quite slow to update.[/QUOTE]

    I did try that
    • naedanger
    • By naedanger 17th Mar 17, 11:04 AM
    • 2,178 Posts
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    naedanger

    I did try that
    Originally posted by mc303
    It works for me. If you enter the search details, hit the search button and then scroll down there should be many links to pdfs of cases. It is quite slow. I am using a pc.
    • shaun from Africa
    • By shaun from Africa 17th Mar 17, 11:07 AM
    • 9,289 Posts
    • 10,444 Thanks
    shaun from Africa
    I did try that
    Originally posted by mc303
    When you open the link, type in "section 75" in the box that states "you can search by word or phrase".

    Tick the two boxes marked "for decisions that were - upheld" &
    "Within- banking, credit and mortgages"

    Then set the date ranged from 01/01/2016 to today and hit the search button.
    I just did this and it yielded 439 results.

    If you search through them, the majority are S75 claims that the FCO states were wrongly rejected and you may well find a case similar to yours.
    • mc303
    • By mc303 17th Mar 17, 11:10 AM
    • 70 Posts
    • 5 Thanks
    mc303
    ??? am i looking for my case or just looking for similar case?
    • naedanger
    • By naedanger 17th Mar 17, 11:14 AM
    • 2,178 Posts
    • 1,764 Thanks
    naedanger
    ??? am i looking for my case or just looking for similar case?
    Originally posted by mc303
    You are looking for similar cases. (Your case will not be there until it is completely finalised.)
    • mc303
    • By mc303 17th Mar 17, 11:18 AM
    • 70 Posts
    • 5 Thanks
    mc303
    ok, please enlighten me as to what i should find that will help my appeal by scrolling through hundreds of not upheld cases? i have been told why my case was not upheld. it's a little confusing asking for the search?
    • naedanger
    • By naedanger 17th Mar 17, 11:32 AM
    • 2,178 Posts
    • 1,764 Thanks
    naedanger
    ok, please enlighten me as to what i should find that will help my appeal by scrolling through hundreds of not upheld cases? i have been told why my case was not upheld. it's a little confusing asking for the search?
    Originally posted by mc303
    By searching for complaints with the wording "section 75" in them you are looking for cases similar to your own.

    By only looking for upheld cases you are only going to get cases where the customer won.

    Then open and read a few of the cases to see what they are about. There are likely to be cases where the financial company (e.g. a credit card company) is denying that they are liable. But the Ombudsman disagreed. Then you can speak to the adjudicator and ask why he is saying the cc company is not liable in your case.

    By the way I expect most cases will be bit more complicated than yours since it is surprising that the FO would say the cc is not jointly liable. (I would expect most FO staff to know otherwise.)
    • mc303
    • By mc303 17th Mar 17, 11:43 AM
    • 70 Posts
    • 5 Thanks
    mc303
    Thank you naedanger, i agree the case worker should now a little more, to me it was black and white under the sections we have talked about, i am reading through the case workers decision and i can see so many lies the dealer has told FO about the existing faults before hand over of the car.....
    • naedanger
    • By naedanger 17th Mar 17, 11:50 AM
    • 2,178 Posts
    • 1,764 Thanks
    naedanger
    yes told the FO i took the car back 3 times, dealer would not accept fault, dealer repaired other faults with the car would not accept the fault i was suggesting, i even got a report from the main dealer which cost £80 , they confirmed the fault, the FO said there was a new MOT on the car ?? yes i think i should up appeal the decision to the Ombudsman
    Originally posted by mc303
    It would help if you were certain of the reason your complaint was declined.

    I, and I think others, believe, from what you have said, that the FO adjudicator believes the cc are not jointly liable. And our suggested replies are based on that understanding.

    However if the FO adjudicator's decision is based on another reason (e.g. that he does believe there is a fault with the car) then the suggested responses will be irrelevant.
    • mc303
    • By mc303 17th Mar 17, 11:51 AM
    • 70 Posts
    • 5 Thanks
    mc303
    should i post FO declining statement?
    • naedanger
    • By naedanger 17th Mar 17, 11:53 AM
    • 2,178 Posts
    • 1,764 Thanks
    naedanger
    should i post FO declining statement?
    Originally posted by mc303
    Yes, provided you blank out all personal information and don't mind getting all sorts of replies here.
    • mc303
    • By mc303 17th Mar 17, 11:55 AM
    • 70 Posts
    • 5 Thanks
    mc303
    After you have read this please let me know so that i can post the response correcting the FO on important misleading issues.

    my view on Mr xxxx complaint about MBNA Limited (ďMBNAĒ)

    Iíve now got enough information to consider Mr xxx complaint about MBNA.

    After looking over all the evidence in this complaint, and taking into account everything all the parties have said, I havenít upheld Mr xxx complaint. This means that I donít think MBNA need to do anything more.

    chargebacks, section 75 and the business the complaint is set up against

    Before I explain my view in further detail, Iíd like to explain why this complaint is against MBNA:

    MBNA attempted both a chargeback and section 75 claim in Mr xxx complaint.

    A chargeback is a process whereby disputes are attempted to be resolved between card issuers (so in this case, MBNA) and merchants (in this complaint xxx), under the relevant card scheme. A card scheme will be a scheme such as Visa, MasterCard or American Express.

    As a result of section 75 of the Consumer Credit Act 1974, this states that consumers (Mr xxx) have an equal right to claim against the provider of the credit (so MBNA in this case), if thereís either a breach of contract, or misrepresentation.

    What these two actions mean, are that MBNA can be held jointly responsible for the actions of the merchant (xxx). Under the rules we follow, we can only look into businesses which carry out a regulated financial activity. We canít look at a complaint against a car dealership, because the activity they carry out Ė selling cars Ė isnít regulated. But, we can look at this complaint against MBNA, because they provide credit, which is a regulated financial activity.

    Mr xxx complaint

    On 15 August 2016 Mr xx test drove a second-hand Land Rover Freelander 2. Mr xxx said that he realised there were some faults with the car, which the dealership (xx xx xx) said would be fixed before he picked up his car. I called the dealership to clarify what these faults were and I was told there were faults identified with the key fobs, and noise coming from the rear of the car. An RAC employee who accompanied Mr xxx on the test drive assured him that the noise he could hear was usual for the type of car he was looking at (an SUV).

    On 19 August 2016 Mr xxx noticed there were still faults with the car. He paid the outstanding balance and took delivery of the car. It was arranged that the car would go back into a garage, recommended by the dealership (xxx autos Ltd). Mr xxx said that the fault (noise coming from the rear of the car) was still happening.

    Over the next month Mr xxx then took his car to four different garages. Mr xxx believed there was a problem with his rear differential, so he got quotes from the garages he visited to find out how much it would be to repair this part.

    During a health check visit (26 September 2016) with Stratstone Land Rover dealership, the vehicle was investigated and it was deemed necessary for the rear differential to be replaced.

    The dealership told Mr xxx that they would rectify any fault picked up through diagnosis. And they offered to replace the rear differential, and ordered the part in for him.

    Mr xxx didnít want to return his vehicle and said that heíd given the dealership enough opportunities to put things right for him. Mr xxx complained to us because he believes his car is not of satisfactory quality, is unfit for purpose, not roadworthy and said xx xx xx are in breach of contract. He wants a full refund.

    MBNA rejected Mr xxx complaint. They attempted a chargeback which was refused. Mr xxx then raised a complaint under Section 75 of the Consumer Credit Act 1974 (Section 75). MBNA rejected the claim as they didnít think there was a breach of contract or misrepresentation. They believed the car was roadworthy and they offered to repair and replace the rear differential

    what I think

    I have to consider whether I think MBNA has acted fairly in rejecting the chargeback and the Section 75 claim.

    chargeback

    MBNA attempted a chargeback in Mr xxx complaint. A chargeback isnít something a card provider has to do, itís at their discretion (choice) whether or not to do this. There are rules MBNA needed to follow when making their chargeback request to the merchant acquirer (so the dealershipís bank). Iíve checked these rules. One of the things needed to be shown was that Mr xxx had attempted to resolve the complaint with the merchant (so the dealership) and that heíd returned his Land Rover to them. Mr xxx didnít want to return the vehicle.

    Because of this, MBNA warned Mr xxx that he had a weak prospect of a successful chargeback claim, because the vehicle wasnít returned.

    MBNA attempted the chargeback but it was defended by the merchant acquirer (dealershipís bank). Itís not unusual for a card issuer not to a make a second attempt at a chargeback, once the first attempt has been refused. And because the first attempt had been defended, I donít think they did anything wrong by not attempting again. Especially when theyíd already warned Mr xxx there was a weak chance of success.

    MBNA didnít have to attempt this. I know that it wouldíve been disappointing for Mr xxx that it wasnít successful, but MBNA did manage his expectations around this

    Section 75

    Mr xxx believes thereís been a breach of contract.

    I understand that when Mr xxx took his car for a test drive he found there were faults with his car, which the dealership said would be fixed before he took delivery of the car. I spoke with the dealership and they confirmed that the faults agreed to be fixed were the key fob (one of the two supplied wasnít working) and the fixing of a parcel shelf. I understand that the key fob wasnít able to be fixed until a few days after Mr xxx took delivery. And a parcel shelf was fitted. Mr xxx said that he could hear noises coming from the rear of his vehicle during the test drive and an RAC supervisor told him the noises he heard were normal for his type of car.

    Mr xxx still took delivery of the Land Rover and paid the remaining balance on 19 August 2016. So this shows that he accepted the car in the condition it was.
    Mr xxx has said that the car was of unsatisfactory quality and un-roadworthy. I think the fact he decided to take the car away on the 19 August 2016 shows that he knew one of the key fobs hadnít been fixed at that time and made arrangements for this to be fixed at a later date. So because he took the car away, I canít say fairly that there had been any breach of contract. I also donít think the car was un-roadworthy. I say this because Iíve looked at the MOT from 16 August 2016. And it passed with no advisories. If a car wasnít safe then balance, I donít think it wouldíve passed an MOT. Also, he said he visited four different garages. It seems that he got quotes from these garages but itís not clear if any inspection was carried out. But, the fact he was allowed to drive the car away suggests his car was safe.

    Mr xxx supplied evidence from the four different garages he went to to get a quote for replacing the rear differential. But no diagnosis/investigative work about the noise coming from his car was carried out until after heíd taken delivery of the car, on 26 September 2016. This investigatory work was carried out by the Stratstone dealership. At this point, it was recommended that the rear differential needs repair/replacing. But, Iíve seen evidence that the dealership agreed to repair any fault which mightíve been diagnosed. And they ordered the rear differential part for Mr xxx, which is still available at their dealership.

    my conclusion

    Mr xxx purchased a second-hand Land Rover, which had a valid MOT, with no faults picked up. I think the fact the dealership were and still are prepared to replace the rear differential is a fair response to what has happened. Iíve seen nothing to make me think the car is un-roadworthy. And the noise Mr xxx has complained about can be fixed by replacing the rear differential. Iíve also checked the mileage covered over the month period of when Mr xxx took delivery of the car up to when the rear differential fault was discovered (using evidence from the vehicleís MOT and the figures provided on the quotes from the different garages Mr xxx visited. On average it looks like there was approximately 1,000 miles (roughly) covered during this time. This is suggest the car was being driven and used, covering the average mileage expected for a vehicle over one month. I donít think the car wouldíve been driven this much if it wasnít able to, or if it had been unsafe.

    Overall, Iím of the opinion there isnít enough evidence to make me satisfied there has been a breach of contract.

    Whilst I appreciate the time and effort Mr xxx went through in visiting different garages, as soon as a diagnosis was carried out identifying the rear differential fault, the dealership told him they would fix this for him and they ordered the relevant part.

    Iíve then considered whether or not thereís been any misrepresentation. As I explained above, Mr xxx purchased a second-hand vehicle and so some wear and tear is inevitable and the condition of a used car is going to be different to a brand new car.

    The car was advertised as being in ďexcellent conditionĒ. This is somewhat subjective. It was a vehicle which was six and half years old at the time of sale. And the fact it came with a MOT with no advisories, this indicates the car was of satisfactory quality. So Iím not able to suggest its been misrepresented.


    what happens next

    I think this is a fair outcome in the circumstances, for the reasons Iíve explained. If you decide that you donít accept my view, then an ombudsman here can look at everything again and make a final decision. Please let me know what you think by 9 March 2017.

    Please be aware that if I donít hear back from either party by 9 March 2017, Iíll assume that what Iíve said has been accepted and will close this complaint.

    Many Thanks
    • naedanger
    • By naedanger 17th Mar 17, 12:17 PM
    • 2,178 Posts
    • 1,764 Thanks
    naedanger
    After you have read this please let me know so that i can post the response correcting the FO on important misleading issues.

    ...

    I think this is a fair outcome in the circumstances, for the reasons I’ve explained. If you decide that you don’t accept my view, then an ombudsman here can look at everything again and make a final decision. Please let me know what you think by 9 March 2017.

    Please be aware that if I don’t hear back from either party by 9 March 2017, I’ll assume that what I’ve said has been accepted and will close this complaint.

    Many Thanks
    Originally posted by mc303
    OK.

    FO is not disputing that the cc are jointly liable. (So my earlier suggested responses are irrelevant.)

    They are disputing some of the facts as you see them. In particular they are disputing you gave the garage an opportunity to fix the problem. "But, I’ve seen evidence that the dealership agreed to repair any fault which might’ve been diagnosed. And they ordered the rear differential part for Mr xxx, which is still available at their dealership." (I am just the messenger. I am not saying they are right.)

    If the FO is basing their decision on information you have not seen then I would contact FO about that in writing. And state in the interests of fairness you need to be able to see and respond to any information they have been given by the garage or the cc company.
    Last edited by naedanger; 17-03-2017 at 12:55 PM.
    • mc303
    • By mc303 17th Mar 17, 12:22 PM
    • 70 Posts
    • 5 Thanks
    mc303
    "But, I’ve seen evidence that the dealership agreed to repair any fault which might’ve been diagnosed. And they ordered the rear differential part for Mr xxx, which is still available at their dealership."

    this was after they had 3 attempts to repair the vehicle, it was when i asked to reject the vehicle for a full refund
    • naedanger
    • By naedanger 17th Mar 17, 12:40 PM
    • 2,178 Posts
    • 1,764 Thanks
    naedanger
    "But, Iíve seen evidence that the dealership agreed to repair any fault which mightíve been diagnosed. And they ordered the rear differential part for Mr xxx, which is still available at their dealership."

    this was after they had 3 attempts to repair the vehicle, it was when i asked to reject the vehicle for a full refund
    Originally posted by mc303
    I think your best bet is to provide evidence (or highlight it again) showing that you have already given the garage a number of attempts at fixing the problems and these have failed.
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