Section 75 Asking me to sell car & refund difference

CycladesQueen

Dealership had 3 chances to fix car and I dont trust to take it back and want full refund. I asked Tesco to action section 75. They have come back after one month and said collect car from dealer and sell it. They will refund difference. Is this normal or should card provider not still refund me 100? Thanks

Keep_pedalling

How long have you had the car, and how many miles have you done in it?

molerat

Under s75 the card is as equally liable as the seller.  Tesco should be refunding the full amount - there could be some reduction for use the same as if the seller was refunding - and take control of the goods if they so wish.  If they are not willing to do this then raise a complaint..

CycladesQueen

Keep_pedalling said:

How long have you had the car, and how many miles have you done in it?

7 months
3 returns to dealership at 1 mth, 4 mths and 6 mths. Each time doing cheap fix and ignoring bigger issue.
We had independent report done
Car has been at dealership a month
Credit card asking us to collect, sell and they will pay us difference. But could take ages and already had no car for a month.
Many thanks 

Keep_pedalling

Assuming they have been providing a loan car for all this down time I don’t think you you are entitled to a full refund as you have had 7 months of usage ( although not all of it in your car)

What the CC company are proposing is very odd, and as you don’t seem to have asked the dealer for a refund before resorting to the CC company I am surprised they have not told you to go that route first.

born_again

molerat said:

Under s75 the card is as equally liable as the seller.  Tesco should be refunding the full amount - there could be some reduction for use the same as if the seller was refunding - and take control of the goods if they so wish.  If they are not willing to do this then raise a complaint..

Actually a fair & sensible outcome. Clearly someone has actually thought about how to solve many of the issues involved.
As means Tesco are putting Op gets back exactly where they were before purchasing the car. So OP is fully refunded 👍

As this solves the age old issue of what happens to the car. No one actually comes out better off. Bank is never going to take & sell a car or any other item refunded under S75. As they are not geared up to do so.

400ixl

Asking the customer to sell a vehicle with a known fault, surely not an acceptable approach from the credit card provider?

A_Geordie

molerat said:

Under s75 the card is as equally liable as the seller.  Tesco should be refunding the full amount - there could be some reduction for use the same as if the seller was refunding - and take control of the goods if they so wish.  If they are not willing to do this then raise a complaint..

There was a similar debate I had with other posters on another thread if I recall about vouchers and whether they had the legal right to take possession of the vouchers having paid out. My opinion was that the CC company was only entitled to be reimbursed the sums paid to the consumer as s75 was not designed to take the retailer's property in lieu of payment as the language of s75 says to be indemnified only against costs or expenses.

There is a difference in this thread because the CC company appears to be suggesting that the OP should sell the car before reimbursing them and I would urge the OP to take caution in doing that. It's one thing arguing ownership rights if a CC company has reimbursed the OP already, and it's another where (in this case) the CC company has yet to reimburse the OP but appears to be acting as if they they already own rights to the car.

Until the CC company has reimbursed the OP, s75 is not triggered and there is no doubt ownership of the car absolutely belongs to the dealership. Selling the car could open the OP up to civil claims for trespass to goods/conversion.

Personally, I avoid going down the complaints/ombudsman when the arguments are primarily focused on legal rights since the Ombudsman will not always look at the letter of the law and instead what's fair and reasonable. I have found their decisions to be inconsistent on same/similar facts. Highly frustrating if your 6/12 months down the line only to realise you have to now issue legal proceedings and then wait another 6/12 months for a hearing date when you could have done that in the first place. In short, I would skip the complaint/ombudsman route and consider going down the legal proceedings route if no success - I'm sure that will spring the CC company into action. 

Ergates

The customer/OP needs to transfer ownership of the car to *someone* - they can't have a full refund and keep the car (even if the car has a fault).

Options seem to be:  
Give it back to the dealership for free.  But then the dealership get a free car
Sell it back go the dealership.  But the dealership would have to agree to that, and I don't think the CC company can make them
Sell it to someone else who is informed of the fault (so at a reduced rate) and the CC repay the difference.

The middle option is the best - but requires the dealership to be cooperative, and an S75 request usually happens when the retailer isn't being cooperative.

So, whilst it might seem odd at first glance the 3rd option may be the simplest way to resolve this.

saajan_12

This does seem like the best option, and if you have it in writing, what's the issue?

Asking the dealership to keep or sell the car means more money in their pocket, when they are presumably already not returning the purchase price.. so the OP  or card company would have that much more to chase the dealer for. 

The bank is not going to be practically set up to take control of and sell a car. 

OP selling it means they immediately get some cash, with a smaller amount at risk from the card company (though if its in writing hopefully that's not a big risk). Plus the card company only has to pay part meaning they have a smaller amount at risk to battle out with the dealer. 

Alderbank

Ergates said:

The customer/OP needs to transfer ownership of the car to *someone* - they can't have a full refund and keep the car (even if the car has a fault).

Options seem to be:  
Give it back to the dealership for free.  But then the dealership get a free car
Sell it back go the dealership.  But the dealership would have to agree to that, and I don't think the CC company can make them
Sell it to someone else who is informed of the fault (so at a reduced rate) and the CC repay the difference.

The middle option is the best - but requires the dealership to be cooperative, and an S75 request usually happens when the retailer isn't being cooperative.

So, whilst it might seem odd at first glance the 3rd option may be the simplest way to resolve this.

I'm not sure about your reading of s20 Right to Refund:

s20 7(b) says the consumer has a duty to make the goods available for collection by the trader or (if there is an agreement for the consumer to return rejected goods) to return them as agreed and whether or not the consumer has a duty to return the rejected goods, the trader must bear any reasonable costs of returning them. 

To me that falls short of saying that the trader must take the goods back, it just says if they want them back they must pay for doing so. They can tell the consumer they can have a refund and keep the car.

By contrast the trader's duty to refund is clear:
s20 7(a) onwards says the trader has a duty to give the consumer a refund...to the extent that the consumer paid money under the contract, the consumer is entitled to receive back the same amount of money.


We don't know whether the OP traded-in a different car as part-ex.

s20(12) says that to the extent that the consumer transferred under the contract something for which the same amount of the same thing cannot be substituted, the consumer is entitled to receive back in its original state whatever the consumer transferred.

If so, the trader/finance house is entitled to give him his old car back if the dealer still has it plus the balance of the purchase price paid.

Is that what is actually being proposed and there is just some confusion?