Yes it's The Car

mc303

Dear xxxxx

your complaint about MBNA Limited

Attached is my review of your complaint, which I’ve also copied below.

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 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 wasn’t upholding his complaint.

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

After thinking about everything that’s happened in Mr xxx complaint, and in light of the new evidence he’s provided; I do think that there has been a breach of contract under section 75 of the Consumer Credit Act 1974. But, I don’t think MBNA need to do anything more to put things right. This means that although I’m upholding his complaint, I’m 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 won’t 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 wasn’t happy with my previous investigations.

the reasons why Mr xxx doesn’t agree with my previous views

Mr xxx requested that his complaint be re-opened because he didn’t feel that the problems with his car had been fixed. So I re-opened his case. Mr xx isn’t 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.

He’d 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 – 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 – so after the seller had taken his car in for the rear differential to be repaired), from another garage – xxxx 4x4.

This invoice showed that since his Freelander was taken in for repair of the rear differential, he’s 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 hasn’t been repaired properly, so he’s entitled to a refund. He said he’s taken his car to be repaired a number of times and the faults still haven’t been fixed.

what MBNA has said

MBNA don’t believe there’s been a breach of contract between the seller and Mr xxx. They’ve 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

There’s disagreement about whether or not a breach of contract has happened at the time of sale. When I’ve 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 “normal” 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 – that the noises were “normal”. And I don’t 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 don’t accept this, I don’t think this matters, because it doesn’t’ 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 I’m not recommending Mr xxx receives a refund

I’ve 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 hasn’t received any paperwork to show this. But the seller has explained they paid for this work; so Mr xxx hasn’t suffered any financial loss. I’ve no reason to believe that what they’ve told me isn’t 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 don’t think these things were present (so I don’t think they were inherent) at the time Mr xxx purchased the Freelander. These problems occurred eight months after he purchased the car. And I don’t 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
I’ve 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 wasn’t successful. But I’ve 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 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 8 June 2017.

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

Yours sincerely

gycraig_2

What a joke the whole thing has been it goes slap against all the rules

naedanger

mc303 wrote: »

Dear xxxxx

your complaint about MBNA Limited

Attached is my review of your complaint, which I’ve also copied below.

...

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

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

mc303 wrote: »

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

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

this has been revised, will post later

mc303

are you still there @naedanger

naedanger

mc303 wrote: »

are you still there @naedanger

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

(which is why I suggested a separate schedule).

this is the only part i dont understand?

naedanger

mc303 wrote: »

this is the only part i dont understand?

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