Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • mc303
    • By mc303 15th Mar 17, 4:26 PM
    • 74Posts
    • 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 5
    • mc303
    • By mc303 25th May 17, 10:57 AM
    • 74 Posts
    • 5 Thanks
    mc303
    Oddly enough the case worker phoned me yesterday, and asked me a few questions which i answered, i then asked how come it's still with the case worker and the reply was, the onmbudsan needed a little more info from both parties, i said i thought this case had been raised to the ombudsman, the reply was you still have this option but i was asked for more info...
    so at present it is still ongoing hope this helps
    • mc303
    • By mc303 25th May 17, 4:24 PM
    • 74 Posts
    • 5 Thanks
    mc303
    Dear xxxxx

    your complaint about MBNA Limited

    Attached is my review of your complaint, which Iíve also copied below.

    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 8 June 2017.

    Many Thanks

    xxxxxxx
    investigator
    Financial Ombudsman Service
    Phone: 020 3487 5990

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


    I sent my second view of Mr xxx complaint on 15 March 2017. I endorsed my first view, in which I said I wasnít upholding his complaint.

    Since then, Mr xxx has provided new evidence, which has caused me to review the case again.

    After thinking about everything thatís happened in Mr xxx complaint, and in light of the new evidence heís provided; I do think that there has been a breach of contract under section 75 of the Consumer Credit Act 1974. But, I donít think MBNA need to do anything more to put things right. This means that although Iím upholding his complaint, Iím not asking MBNA to give Mr xxx a refund.

    The facts of Mr xxx complaint were laid out in my first view (23 February 2017), so I wonít repeat them again. But I do think it would be helpful to outline the further evidence Mr xxx has sent us, as well as the reasons he has about why he wasnít happy with my previous investigations.

    the reasons why Mr xxx doesnít agree with my previous views

    Mr xxx requested that his complaint be re-opened because he didnít feel that the problems with his car had been fixed. So I re-opened his case. Mr xx isnít happy because he believes under section 24 of the Consumer Rights Act 2015 he has a right to a refund (rather than repair) if the seller has previously failed to repair faulty items. Mr xxx believes that the seller has failed to repair his car and would like a refund.

    Heíd like MBNA (who are jointly liable under section 75 of the Consumer Credit Act 1974) to refund him £9,550.

    new evidence that Mr xxx provided

    Mr xxx sent me copies of reports he obtained from four different garages between 1 September Ė 26 October 2016 (within two months of him purchasing and taking delivery of his Freelander). These reports showed that four independent garages believed his vehicle had a fault with the rear differential. Mr xxxx believed these reports showed that the rear differential was faulty at the time he purchased and took delivery of the car.

    Mr xxx also provided an invoice (dated 4 April 2017 Ė so after the seller had taken his car in for the rear differential to be repaired), from another garage Ė xxxx 4x4.

    This invoice showed that since his Freelander was taken in for repair of the rear differential, heís had to have an oil leak investigated, as well as the unblocking, repair and re-connection of a haldex vent pipe.
    This was because when the car was returned "after the so called fix"

    Mr xxx believed this evidence shows the car hasnít been repaired properly, so heís entitled to a refund. He said heís taken his car to be repaired a number of times and the faults still havenít been fixed.

    what MBNA has said

    MBNA donít believe thereís been a breach of contract between the seller and Mr xxx. Theyíve said that Mr xxx purchased a vehicle he knew had a potential fault with the rear differential and it was agreed the seller would fix this. Which has now been done.
    i did not know of the rear differential before purchase, the seller refused to believe the diff was faulty, it has not been fixed

    what I think

    was there a breach of contract

    Thereís disagreement about whether or not a breach of contract has happened at the time of sale. When Iíve spoken with the dealership it was confirmed that at the time of sale that there were issues with the key fobs and parcel shelf. And it was these items which were agreed to be fixed.
    and more

    When Mr xxx took the vehicle for a test drive, an employee from the RAC went with him. Mr xxx noticed noises coming from the rear of the car, but was told these noises were ďnormalĒ for an SUV. Mr xxx then continued with the purchase.
    the rac employee did not come into play until i had returned 3 times to point out the rear diff, probably a month after purchasing

    I think Mr xxx took in good faith what he was told during the test drive Ė that the noises were ďnormalĒ. And I donít think he knew before he took delivery of the car and completed payment, that there was a fault with a rear differential. But as the noise continued and got worse, this prompted Mr xxx to look further into it and it was only then, that he discovered there could be faults with the rear differential.

    So having looked at all the reports Mr xxx has sent us, as well as the fact the dealership agreed to repair the rear differential; I think this proves there was an inherent fault with his car (the rear differential), which was present at the time of sale. So I think there was a breach of contract.

    But even if MBNA donít accept this, I donít think this matters, because it doesnítí affect their liability in terms of should now happen. I say this because I think the fault with rear differential, which I believe is substantial, has been fixed.
    it has not

    why Iím not recommending Mr xxx receives a refund

    Iíve spoken with the seller and have been told that Mr xx car was sent to a Land Rover Specialist in Wiltshire. Whilst here, the rear differential was re-built.
    there is no invoices to prove this

    I appreciate that Mr xxx hasnít received any paperwork to show this. But the seller has explained they paid for this work; so Mr xxx hasnít suffered any financial loss. Iíve no reason to believe that what theyíve told me isnít the truth.

    I think this shows that the inherent and substantial fault (the rear differential) on the vehicle was sent in for repair and this was done. Meaning that the breach of contract has been remedied (fixed.)
    it has not

    the problems that followed with Mr xxx car

    From the further evidence Mr xxx sent to us, his car went into another garage for further inspection and work on 4 April 2017. This work was to do with oil leakage and the blockage and disconnection of a haldex pipe unit.

    I think these are separate problems with the car. And I donít think these things were present (so I donít think they were inherent) at the time Mr xxx purchased the Freelander. These problems occurred eight months after he purchased the car. And I donít think these make the vehicle of unsatisfactory quality.
    land rover rear diff without the hadex connect properly is a death trap, these faukts came to light when they returned the car

    The reason I say this is because Mr xxx purchased a second car, which at the time was 10 years old. Allowances have to be made for the general wear and tear that happens in second hand cars, especially ones which are 10 years old. And I think the oil leak and haldex pipe problems came about as part of this general wear and tear, when I take into account the age and mileage of the car. I think these are fairly normal problems that a 10 year old Freelander might encounter.
    the faults appeared when they returned the car, the car was 9 years old
    Iíve checked with the seller to see if the haldex pipe unit is in anyway linked to the rear differential; because if it is, this might suggest the rear differential was still faulty, and therefore the repair wasnít successful. But Iíve been told that the rear differential is a standalone, separate unit, not attached to any pipes etc.
    god help us if this was true

    So this causes me to believe that the problems which have followed since the rear differential has been rebuilt, are separate and not inherent on the car. And I think these problems are part and parcel of a what might be expected on a second had car; like Mr xxx.

    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 8 June 2017.

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

    Yours sincerely
    • gycraig
    • By gycraig 25th May 17, 11:50 PM
    • 372 Posts
    • 262 Thanks
    gycraig
    What a joke the whole thing has been it goes slap against all the rules
    • naedanger
    • By naedanger 26th May 17, 9:54 AM
    • 2,184 Posts
    • 1,768 Thanks
    naedanger
    Dear xxxxx

    your complaint about MBNA Limited

    Attached is my review of your complaint, which Iíve also copied below.

    ...
    Originally posted by mc303
    While the case worker has not given the answer you were wanting you have made a little progress as they now agree the car dealer breached the contract by supplying a car with a faulty differential. It seems to me that you now only need to convince them that the car has not been repaired despite some attempts to do so.

    I suggest you reply along the following lines:

    1) Thank them for recognising that when the car was supplied it was inherently faulty (it had a faulty differential).

    2) State that you are disappointed that they have concluded that the fault was repaired based only on the word of the dealer. Then repeat all the evidence you have that shows this fault is still present. (If the haldex pipe is part of the differential then I would start with that point.) If you can prove with evidence that the dealer has previously lied then I would state that fact and include the evidence to prove the dealer has lied previously. Then highlight that given the dealer had previously lied you think the case worker is wrong to take their word now that the case is fixed when you are saying otherwise.

    3) I would also state that the case worker's latest response still has a number of other factual errors and list those errors in a separate schedule, and for each error state the actual position and the evidence to confirm that.

    4) End by asking the caseworker, if they remain of the view the car was successfully repaired, to escalate your case to an Ombudsman.
    • mc303
    • By mc303 26th May 17, 10:20 AM
    • 74 Posts
    • 5 Thanks
    mc303
    Thank you so much naedanger, where would i be without your guys should i also state that i requested my case to be escalated 6 weeks ago? it seems to me the case worker has spent all this time going over her report to cover her a**
    thank you so much
    • naedanger
    • By naedanger 26th May 17, 10:48 AM
    • 2,184 Posts
    • 1,768 Thanks
    naedanger
    Thank you so much naedanger, where would i be without your guys should i also state that i requested my case to be escalated 6 weeks ago? it seems to me the case worker has spent all this time going over her report to cover her a**
    thank you so much
    Originally posted by mc303
    Personally, although I would be tempted, I would try to resist criticising the case worker at this stage.

    The more chances you get with the case worker the better, since there is a chance they might change their mind. Indeed they seem to hint that if you can show the haldex pipe fault was connected to the differential fault they probably will change their view.
    • mc303
    • By mc303 26th May 17, 11:05 AM
    • 74 Posts
    • 5 Thanks
    mc303
    this has been revised, will post later
    Last edited by mc303; 28-05-2017 at 9:24 AM.
    • mc303
    • By mc303 26th May 17, 5:15 PM
    • 74 Posts
    • 5 Thanks
    mc303
    are you still there @naedanger
    • naedanger
    • By naedanger 26th May 17, 5:47 PM
    • 2,184 Posts
    • 1,768 Thanks
    naedanger
    are you still there @naedanger
    Originally posted by mc303
    Ultimately it is you that needs to be happy with your response.

    If your above wording is all that you are planning to put to convince the caseworker that the problem was not fixed then I am not sure it will be sufficient. Basically you are asking them to believe your word on the technical position (i.e. the relevance of the haldex pipe problem) against that of a mechanic who works on cars for a living. Personally I would have thought you should try to get someone else (e.g. the RAC) to say that the haldex pipe problem is likely to have arisen from a failure during the attempt to repair the differential.

    Also are there not more arguments you can put e.g. your own testimony on how the car is currently driving? Obviously if you have documentation from others that the problem still exists (despite a number of repair attempts) then that would be better.

    Also I would not raise the problems you have had with the caseworker when speaking to the Ombudsman unless it is necessary to do so to support your case e.g. you may need to correct factual misunderstandings - which I think you would be better doing at this stage but in a manner that won't confuse your current arguments (which is why I suggested a separate schedule).
    • mc303
    • By mc303 26th May 17, 5:56 PM
    • 74 Posts
    • 5 Thanks
    mc303
    (which is why I suggested a separate schedule).
    this is the only part i dont understand?
    • naedanger
    • By naedanger 26th May 17, 6:17 PM
    • 2,184 Posts
    • 1,768 Thanks
    naedanger
    this is the only part i dont understand?
    Originally posted by mc303

    Basically you say that there have been a number of factual errors made and you have set those out in date order in a separate schedule.

    "Schedule of errors"

    1) Error - Mr xxx was made aware there was a problem with the differential prior to purchasing the car.

    Actual position - I was not told about the problem prior to purchase. It is clear that the problem with the differential was not made known from the following [give any documentation that highlights this problem was not admitted until a later date]

    2) Error - When Mr xxx took the vehicle for a test drive, an employee from the RAC went with him.

    Actual position - the rac employee did not come into play until after i had returned 3 times to point out the rear diff, probably a month after purchasing. This can be seen from ... [supply evidence].

    and so on
    • mc303
    • By mc303 26th May 17, 6:21 PM
    • 74 Posts
    • 5 Thanks
    mc303
    please check your messages
    thank you
    • mc303
    • By mc303 27th May 17, 7:36 AM
    • 74 Posts
    • 5 Thanks
    mc303
    this has been revised, will post later
    Last edited by mc303; 28-05-2017 at 9:23 AM.
    • MothballsWallet
    • By MothballsWallet 27th May 17, 8:58 AM
    • 11,230 Posts
    • 14,755 Thanks
    MothballsWallet
    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.
    Originally posted by naedanger
    Probably because it looks like it was designed on a budget of £10 and by someone in love with the newer blue & white MSE layout...
    Always ask yourself one question: What would Gibbs do?
    Married to an immigrant.
    • Cloth of Gold
    • By Cloth of Gold 28th May 17, 2:14 AM
    • 158 Posts
    • 692 Thanks
    Cloth of Gold
    Let us know how you get on mc303. I hope you finally get justice - you deserve it for perseverance alone!

    A very minor issue but since when was it acceptable to use contractions ('it's', 'i've', 'didn't', etc.) in formal correspondence? At least the letter didn't start 'hello', which seems to be common practice now.
    • mc303
    • By mc303 12th Jun 17, 12:40 PM
    • 74 Posts
    • 5 Thanks
    mc303
    hi, after the car was returned april 10 i knew the fault had not been repaired, so on the 15th i took it to a 4x4 specialist for a report which confirmed the work had not resolved the issue and that it had caused further damage when returned, i forwarded this invoice to the case worker and also pointed out some of her faults, this was her reply today

    Thanks for your patience whilst youíve waiting for me to get back to you. I understand that youíd like an ombudsman to now review your complaint, so Iím arranging for this to be done.

    In the meantime, I also wanted to respond to the points you raised in your email (31 May 2017), because I donít want you to feel these have been ignored.

    When I sent my first view (23 February 2017) I referred to what was decided at the point of sale regarding the faults with your car; this was based on testimony I received from the dealership. Itís difficult for me to know what was/wasnít agreed at the time of your sale (in so far as what faults were pointed out and where, and missing parts etc), so I donít want to comment anymore at this time (taken from point 1 from your email (31 May 2017).

    I believed that a breach of contract had taken place, but, I concluded that MBNA donít need to do anything more to put things right on your complaint. Youíve said (points 2 and 3) that you took your car back to the seller for a second time. However, I havenít seen from any of the evidence (both you, MBNA and the dealership has sent me) (i sent her a report from the garage) that you tried to take your Land Rover back, and the dealership refused/failed to repair the rear differential. As Iíve previously explained, you sent me in an email dated 5 October, which shows xxx from the dealership wasnít able to hear a noise in your car at the time. (xxx has never been involved at any time to make an opinion?) They agreed to try and see if a fault with the rear differential could be diagnosed, and if it was, they would ďrectify it straight awayĒ. So Iím canít fairly say that the dealership failed in the previous attempts to repair, when faults with the rear differential werenít picked up at the beginning stages (just after youíd taken delivery) of the events of your complaint. ( i provided her with 4 independent reports showing the diff had failed less than a month after purchase? the dealer refused to accept the diff had failed their mechanic said the diff had failed but instead changed the centre bearing?)

    As I stated in my third review of your complaint (25 May 2017), the dealership has refused to send you an invoice for the work carried out on your rear differential, because this was an arrangements between them and the specialist they instructed. Iím not prepared to comment further on this, as I donít think thereís anything more I can say about this. I understand that you didnít have to pay for anything for this re-build.

    I checked the original registration of your vehicle on the government website and discovered that the age of your car was 10 years at the point of sale; because it was 10 years since the car was first registered. (wrong again)

    The ďproblemsĒ which you refer to in your last paragraph, which have happened over 8 months after the sale: This would mean that it is up to you to show that it was more probably than not that these faults were inherent with the car at the time of sale.

    Please could you send into me any further information you want the ombudsman to consider by 26 June 2017. If I donít hear back from you Iíll assume that youíve sent into use everything already.

    Many Thanks

    my response:

    Hi, the car was 9 years of age at purchase date of registration Jan 2007, date of purchase Aug 2016, i have showed you a report clearly stating the faults have not been repaired after the sellers 4th attempt, dated after their claim of repair, the seller refused to accept the rear diff was at fault even tho i have shown you 4 reports less than a month after the sale, the seller has not provided you with any evidence that they attempted to repair the faults yet you accept their word over written independent reports, because of these faults that were present at the time of purchase i would be lucky if the vehicle would sell for £xxxx that is a loss of £xxxx (50%) in less of a month of purchase,
    please refer my case to the ombudsman
    thank you
    • mc303
    • By mc303 13th Jun 17, 4:16 PM
    • 74 Posts
    • 5 Thanks
    mc303
    Just spoke to the case worker who said she was happy to refuse my claim on a telephone conversation made by the seller that the car had been repaired, i said your happy to make that judgement without any evidence of proof that the vehicle had been worked on, her reply was yes, i said, even tho i have provided evidence that the attempted repair had failed after they told you it was repaired? she replied, yes it's my opinion..... the case is now being submitted to an ombudsman, to be one step ahead in case my claim is rejected, who can i take to court for breach of contract? the seller or MBNA?

    thank you
    • naedanger
    • By naedanger 13th Jun 17, 4:20 PM
    • 2,184 Posts
    • 1,768 Thanks
    naedanger
    ... who can i take to court for breach of contract? the seller or MBNA?
    Originally posted by mc303
    Either at your choice as they are jointly and severally liable.

    However I would suggest you take MBNA to court, because if you win you should have no difficulty getting paid.
    • mc303
    • By mc303 13th Jun 17, 4:24 PM
    • 74 Posts
    • 5 Thanks
    mc303
    as always, thank you naedanger
    • waamo
    • By waamo 13th Jun 17, 4:44 PM
    • 2,019 Posts
    • 2,440 Thanks
    waamo
    You can name them both on a claim form. As they have joint liability of one doesn't pay then the other is 100% in the frame.
    This space for hire.
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

4,689Posts Today

5,628Users online

Martin's Twitter
  • RT @iiSteveJonesii: @MartinSLewis After watching you talk this morning about me burning £300 I got on a comparison site tonight & sure enou?

  • In or near York? This Wed the @itvmlshow Roadshow" will be at the York Food & Drink Festival - do come and say hi; St Sampsons Square 11-4.

  • It's the subtle poetry and lyricism of tweets like this that I find so endearing https://t.co/XhSKBCGyXe

  • Follow Martin