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  • FIRST POST
    • mc303
    • By mc303 15th Mar 17, 4:26 PM
    • 41Posts
    • 1Thanks
    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 situations—

    (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 3
    • mc303
    • By mc303 17th Mar 17, 12:41 PM
    • 41 Posts
    • 1 Thanks
    mc303
    this was my reply to their decision:

    Hi xxxxx, please find attached the reports regarding the vehicle, I am waiting for one more from xxx Motors.

    I would also like to point out a few notes myself regarding your decision

    please note i never asked MBNA for a chargeback, my original emial to MBNA was 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 situations—

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

    you also state
    previous to this Mr xxx had attempted to resolve the complaint with the merchant (so the dealership) and that he’d returned his Land Rover to them. Mr xxx didn’t want to return the vehicle.
    i had returned the vehicle on 4 occasions, on the fourth attempt xxxx xxxx was unavailable

    Because of this, MBNA warned Mr xxx that he had a weak prospect of a successful chargeback claim, because the vehicle wasn’t returned

    Please see above

    Regarding the key fobs

    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.

    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 hadn’t 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 can’t say fairly that there had been any breach of contract
    .
    this is untrue because the failure of the key fobs was not brought to the attention of the dealer until the 22nd august which was 3 days later, and not before i took hold of the car (see diary of events)

    Regarding ownership
    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.
    I took the dealers word that everything had been repaired and was in good working order, it was after i took ownership of the car i noticed the faults were still there whilst i was driving home, and not before i took ownership of the car, the dealership assured me all the faults were repaired before i took the car away

    I’ve seen nothing to make me think the car is un-roadworthy.
    (at this point i sent in the four individual reports, see below)

    I have sent you a picture clearly showing that the vehicle is running at reduced engine performance

    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

    again this is untrue as they were never told of the diagnostics, i never spoke to them after the 4/10/17 other than to ask for a full refund via email on the 5/10/17 so how could they order the relevant part when they had not been informed about it? , they said in an email I think its best we have their professional inspection. Any work that needs to be carried out will be.
    i had already given them 3 opportunities to repair to repair the vehicle, they kept denying there was a fault

    they never once told me they would replace the rear diff, why would they order a part to replace when they would not accept there was a fault with it?

    please refer to 2015 consumer act, i have the right to reject the vehicle, the dealership refused my rejection and refused a refund

    Please confirm you have received 4 documents
    Thank you

    i may add the documents i sent were 4 independent reports each confirming the failure of the rear differential, one of them from the manufactures themselves Land Rover, confirming the fault, the very thing the dealer denies.
    • mc303
    • By mc303 17th Mar 17, 12:48 PM
    • 41 Posts
    • 1 Thanks
    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.
    i sent the FO 2 reports showing the car had been in for repair with the dealers recommended garage?
    • naedanger
    • By naedanger 17th Mar 17, 12:50 PM
    • 2,105 Posts
    • 1,658 Thanks
    naedanger
    Your reply seems reasonable to me.

    It might be worth speaking to the adjudicator as it looks like it is quite a saga. It might be helpful if the adjudicator can hear your version of events in person.

    But you want to avoid getting into an argument. Just explain you want to talk through the series of events as you see them so he understands your side of the saga.
    • mc303
    • By mc303 17th Mar 17, 12:53 PM
    • 41 Posts
    • 1 Thanks
    mc303
    i wish i could upload the final telephone conversation, where she explains, why my case is refused because the dealer has offered a repair, again i stress after 3/4 failed attempts
    • mc303
    • By mc303 17th Mar 17, 12:53 PM
    • 41 Posts
    • 1 Thanks
    mc303
    she also said that CRA doesnt come into it?
    • wealdroam
    • By wealdroam 17th Mar 17, 1:39 PM
    • 18,167 Posts
    • 14,967 Thanks
    wealdroam
    i wish i could upload the final telephone conversation...
    Originally posted by mc303
    Stick it on youtube and post a link to it.
    • mc303
    • By mc303 17th Mar 17, 2:10 PM
    • 41 Posts
    • 1 Thanks
    mc303
    i am not allowed to post links as a new user lol and there is no facility to pm this format besides i would only want a few of you to hear it. i have the original decline from MBNA and the FO both say the same, the dealer has offered a repair, after their failed repairs!

    the following txt is the voice of a CC employee
    the merchants defence at no stage they have not been willing you to offer a repair which they are supposed to do under the sale of goods act, they are still willing and in a position to replace the differential they also confirm with documentation there was a valid MOT at the time of the sale there were no advisories on there they also got a third party to fit a centre bearing (not the fault i was claiming for) you had an initial repair and they did a test drive and it was the tyres, so they are still in a position there , they are offering to replace the differential, and that it didnt fail, it was just a recommendation to change it ??? our legal team have reviewed this think that this is fair for them to replace that for you and the offer is still there on the cards for them to do that, thats the reason we are not looking to take this further for you
    • DoaM
    • By DoaM 17th Mar 17, 3:05 PM
    • 2,260 Posts
    • 2,241 Thanks
    DoaM
    If the transaction was made after July (?) 2015 then the Sale of Goods Act was superseded by the Consumer Rights Act 2015. So straight away the adjudicator has made a fundamental error in law.
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • mc303
    • By mc303 17th Mar 17, 3:07 PM
    • 41 Posts
    • 1 Thanks
    mc303
    Transaction was august 2016 , thank you for your reply
    • mc303
    • By mc303 17th Mar 17, 4:56 PM
    • 41 Posts
    • 1 Thanks
    mc303
    2 days ago:

    my view on Mr xxx complaint about MBNA Limited (“MBNA”)

    I sent out my first assessment of Mr xxx complaint on 23 February 2016.

    Mr xxx didn’t agree with what I said. Mr xx still wanted have a final right to reject his car under the Consumer Rights Act 2015.

    why we can’t look at a remedy for Mr xxx under the Consumer Rights Act 2015 against MBNA

    I explained to Mr xxx that a remedy under the Consumer Rights in his complaint against MBAN isn’t available. This is because the Consumer Rights Act applies to relationships between sellers and buyers. In Mr xxx complaint the seller is xxx xxx xxx (the dealership), and he is the buyer. Therefore he would need to pursue any remedy under the Consumer Rights Act against the dealership. But, we can’t look into complaints about car dealerships because they don’t carry out a regulated financial business.

    So, his complaint concerns a section 75 and chargeback attempt with MBNA.

    section 75 and breaches of contract

    When I spoke with Mr xxx he said that he wanted a refund of his goods, because of the breach of contract, but MBNA didn’t agree to giving a refund. I explained to Mr xx that a refund is one of the remedies available under section 75. The dealership have offered to repair the rear differential, and this is why MBNA didn’t agree to a refund, because they thought this offer (of repair) was fair and reasonable.

    I told Mr xxx that I also agreed with this.
    • naedanger
    • By naedanger 17th Mar 17, 5:48 PM
    • 2,105 Posts
    • 1,658 Thanks
    naedanger
    2 days ago:

    my view on Mr xxx complaint about MBNA Limited (“MBNA”)

    I sent out my first assessment of Mr xxx complaint on 23 February 2016.

    Mr xxx didn’t agree with what I said. Mr xx still wanted have a final right to reject his car under the Consumer Rights Act 2015.

    why we can’t look at a remedy for Mr xxx under the Consumer Rights Act 2015 against MBNA

    I explained to Mr xxx that a remedy under the Consumer Rights in his complaint against MBAN isn’t available. This is because the Consumer Rights Act applies to relationships between sellers and buyers. In Mr xxx complaint the seller is xxx xxx xxx (the dealership), and he is the buyer. Therefore he would need to pursue any remedy under the Consumer Rights Act against the dealership. But, we can’t look into complaints about car dealerships because they don’t carry out a regulated financial business.

    So, his complaint concerns a section 75 and chargeback attempt with MBNA.

    section 75 and breaches of contract

    When I spoke with Mr xxx he said that he wanted a refund of his goods, because of the breach of contract, but MBNA didn’t agree to giving a refund. I explained to Mr xx that a refund is one of the remedies available under section 75. The dealership have offered to repair the rear differential, and this is why MBNA didn’t agree to a refund, because they thought this offer (of repair) was fair and reasonable.

    I told Mr xxx that I also agreed with this.
    Originally posted by mc303
    My suggested draft:

    Thank your [letter/email] of xx/xx/xx but I wish to reject your assessment of my case, and would like it escalated to a Financial Ombudsman.

    From your assessment I think you are of the view that the seller is not obliged to offer me a refund and that a repair is an acceptable remedy. However that is not correct. Under section 24 of the Consumer Rights Act 2015 the consumer has a right to refund (rather than a repair) if the seller has previously attempted to repair the item and failed. As in my case the seller has failed to repair the car after three attempts they are now legally obliged to provide a refund. The offer of a further repair is not now sufficient remedy under section 24 of the CRA 2015.

    For the record I will summarise my complaint again. There are two points to it.

    Firstly that the seller (not MBAN) is in breach of contract because they have failed to honour my statutory rights under the contract. In particular they have failed to provide a refund for my car under Section 24 of the Consumer Rights Act 2015 (sometimes referred to as a consumer's “final right to reject”). As you know under that section I am entitled to insist on a refund, and am not obliged to accept a repair, as the seller has previously attempted and failed to repair the car.

    My second point is that MBAN under Section 75 of the Consumer Credit Act 1974 are jointly and severally liable for my claim against the seller . Therefore MBAN are liable to me for the refund of £xxx. My complaint against MBAN is that they are refusing to provide this refund.
    • mc303
    • By mc303 17th Mar 17, 5:51 PM
    • 41 Posts
    • 1 Thanks
    mc303
    Thank you so much
    • mc303
    • By mc303 17th Mar 17, 5:52 PM
    • 41 Posts
    • 1 Thanks
    mc303
    please can you give your view if i have a case?
    • naedanger
    • By naedanger 17th Mar 17, 6:00 PM
    • 2,105 Posts
    • 1,658 Thanks
    naedanger
    please can you give your view if i have a case?
    Originally posted by mc303
    My view is you have a strong case, but not nothing is guaranteed.

    Obviously it worth getting the views of others, especially to modify any argument. But in any event, I would escalate the case unless virtually everyone said it was hopeless (since you have little to lose by escalating it).
    • mc303
    • By mc303 17th Mar 17, 6:03 PM
    • 41 Posts
    • 1 Thanks
    mc303
    Thank you, i will see if anyone else gives a comment
    • shaun from Africa
    • By shaun from Africa 17th Mar 17, 6:30 PM
    • 9,153 Posts
    • 10,281 Thanks
    shaun from Africa
    I'm in agreement with naedanger.
    From what you have stated so far, the only reason I can see for the credit card company refusing your S75 claim is because they appear not to know that the Sale of goods act has been superseded by the Consumer rights act.
    The SOGA didn't have a limit on the number of repairs a retailer could carry out where as already mentioned, the CRA allows a consumer to reject goods after one failed repair attempt.
    • mc303
    • By mc303 17th Mar 17, 6:34 PM
    • 41 Posts
    • 1 Thanks
    mc303
    Thank you Shaun
    • mc303
    • By mc303 21st Mar 17, 7:01 AM
    • 41 Posts
    • 1 Thanks
    mc303
    Hi, the dealer has offered a repair lasting four days, oddly this falls into the time frame that the FO will auto close my case, should i accept?
    Thank you
    • naedanger
    • By naedanger 21st Mar 17, 9:12 AM
    • 2,105 Posts
    • 1,658 Thanks
    naedanger
    Hi, the dealer has offered a repair lasting four days, oddly this falls into the time frame that the FO will auto close my case, should i accept?
    Thank you
    Originally posted by mc303
    It is up to you. If I thought it would work then I would.

    If you do plan to accept the offer then you could write to the FO saying you are accepting one last repair attempt but will expect your case to either be kept open until it is successfully completed or reopened if it fails.

    I would also add a paragraph explaining that you still believe the FO has failed to recognise the new "final right to reject" consumer right (that did not exist under the SOGA but does under the CRA2015) where a consumer is entitled to a reject for refund (rather than another repair) if a repair attempt fails once (and perhaps link to the following article and quote the relevant lines):
    http://www.ukecc.net/consumer-topics/consumer-rights-act-2015-goods.cfm

    That way you are warming up for a final complaint to FO if the repair attempt fails.
    • mc303
    • By mc303 21st Mar 17, 9:26 AM
    • 41 Posts
    • 1 Thanks
    mc303
    ok, i did agree for the car to be fixed, i also unknowingly agreed to close the case by accepting the repair, as i said i thought i had till the 29th to close the case and this fell into the time frame of actually closing the case, so today i mailed the FO requesting not to close the case untill the car was returned and the fault repaired, she said,
    So your complaint was closed.
    However, if there is a particular reason why the complaint might need to be re-opened over the next week or so, I will consider this. But for the time being, I’m leaving the case closed as nothing has happened to warrant re-opening the case.
    i then mailed her what you wrote regarding MBNA and CRA
    the case worker's reply is below:

    If you’d like to call me to discuss your complaint further, please find my contact details listed below.

    We spoke at length last week about your complaint and you confirmed that you agreed for me to close your complaint if I spoke to the dealership and got confirmation they would be willing to repair your vehicle; which I did. I then called you after talking to the dealership and you agreed for your complaint to be closed.

    You confirmed that you agreed for your car to be repaired by the dealership, and from your last email I understand that you’ve made arrangements for the car to be repaired. So for the time being, as the car has not yet gone in for the repair, which was arranged last week, we don’t know whether or not the vehicle will be fixed, so I don’t think it’s right re-open the complaint just yet. As I explained in my last email, should you want it re-opened after today, you should let me know, with the reasons about way the complaint should be re-opened.

    When we spoke I also explained to you that the Consumer Rights Act doesn’t apply in your complaint against MBNA. The Consumer Rights Act applies to relationships between sellers and buyers, which in your complaint is xxx xxx (seller) and yourself (the buyer). I told you that we couldn’t look into complaints against car dealerships as they don’t carry out a financially regulated activity. However, if you wanted to pursue a complaint under the Consumer Rights Act 2015 against the dealership, you would need to go to the Consumer Ombudsman Service. So your complaint with us concerns a Section 75 complaint (under the Consumer Credit Act) and I also (in my first view) looked at MBNA’s attempts at a charge back.

    Please call me should you wish to discuss anything further. But when we spoke last week you did agree for the complaint to be closed and that you would have the car repaired at the dealership. So I think the best option is to wait until after your car has gone back to the dealership.

    Many Thanks
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