CPA and Section 75 Dilemma

Okell

1.  Your son would only be entitled to an automatic refund if he were exercising his short term right to reject -  ie within 30 days of delivery.  And that would be a full refund

2.  After 30 days your son is not automatically entitled to any refund.  Rather the seller is entitled to one attempt either to repair or to replace.  If that attempt failed only then would your son be entitled to a refund - one that can be reduced to reflect his use of the car while he's had untroubled use of it (if any).

3.  So, assuming the fault arose after 30 days, it is legally correct that the bank is intially looking at repairing the car.  Whether you think that fair or not is irrelevant.

4.  However, for the reasons I've given in previous posts, I'd say that if the bank want to repair the car rather than pay a refund, then they need to be organising the repair themselves and/or finding out how much it will cost.  It's their responsibility under the CRA and CCA.  


HAVING SAID ALL THAT... it might be easier, quicker and more prudent to go along with what the bank is asking rather than trying to get them to stick to the letter of the law.  If they dug their heels in and basically dared you to sue them under s75 it might take many months - perhaps over a year - to resolve and your son might be no better off than if he did what they were asking for now.

And there is never a guarantee that a court case will be won...

Okell

the_lunatic_is_in_my_head said:

Happyprof1950 said:

. If the Bank simply offer to repair the car my son is left in a worse position than would have been the case under a refund option. How can this be fair?

Bank could offer to repair the car (fair or otherwise other 30 days repair/replace is first step in CRA) but the bank are unlikely to repair the car....

As I read the OP's last post, I think the bank do want to pay for repair rather than refund(?).

My view is that if the bank are wanting to repair, it should be their responsibility to organise and pay for that repair rather than asking the OP's son for a quote and then paying him to get the repair done.

the_lunatic_is_in_my_head

Okell said:

the_lunatic_is_in_my_head said:

Happyprof1950 said:

. If the Bank simply offer to repair the car my son is left in a worse position than would have been the case under a refund option. How can this be fair?

Bank could offer to repair the car (fair or otherwise other 30 days repair/replace is first step in CRA) but the bank are unlikely to repair the car....

As I read the OP's last post, I think the bank do want to pay for repair rather than refund(?).

My view is that if the bank are wanting to repair, it should be their responsibility to organise and pay for that repair rather than asking the OP's son for a quote and then paying him to get the repair done.

Yes, misread

Sticking point seems to be the "proof", if the bank won't progress without out it OP moves on to final right to reject due to repair/replace not being carried out within a reasonable time and without significant inconvenience.

born_again

Okell said:

born_again said:

Bank need something to prove the fault. They are not car experts, or expecting you to bring the car to them to check it. Which is why a 3rd party report is asked for.

So the report from Audi dealership should be enough. 

Bank is paying S75 out of their own pocket, as such they need proof of the fault. Any costs are refunded if you win. 

Or any tom, !!!!!! or harry rather then hiring a car. Could simply buy one & then claim there is a fault, dealer is not dealing. Get a refund & walk away laughing..

Not criticising you, but aren't the credit providers looking at that the wrong way round?

If the OP's son were actually to make a proper s75 claim (ie sue the bank under s75 CCA as being jointly liable with the supplier of the car) then - because the fault arose within 6 months - it would be down to the bank to prove that there was nothing wrong with the car when it was sold and not down to the OP's son to prove that there was soemthing wrong with it.

I take your point that the bank are not car experts, but if they want to do all they can to protect their position against a s75 claim, shouldn't they be going to the supplier of the car and asking them to prove that the car was OK when it was sold, rather than asking the OP to prove that it wasn't?

If it went to court, the OP's son would need to prove nothing.  The burden of proof would be on the bank andor the supplier.

The point I'm trying to make - probably not very well - is that the bank seems to me to be acting at best disingenuously in asking the OP's son for evidence rather than asking the car supplier.  They ought to know that the legal burden of proof is on the supplier, not the consumer.

Hope that makes sense...

Point taken.
The reason the person is asked to get a report. Is they are in a far better position to get this done & also it is about proving they have a legitimate claim.

Remember they get refunded for the report is won.

Okell

born_again said:

Okell said:

born_again said:

Bank need something to prove the fault. They are not car experts, or expecting you to bring the car to them to check it. Which is why a 3rd party report is asked for.

So the report from Audi dealership should be enough. 

Bank is paying S75 out of their own pocket, as such they need proof of the fault. Any costs are refunded if you win. 

Or any tom, !!!!!! or harry rather then hiring a car. Could simply buy one & then claim there is a fault, dealer is not dealing. Get a refund & walk away laughing..

Not criticising you, but aren't the credit providers looking at that the wrong way round?

If the OP's son were actually to make a proper s75 claim (ie sue the bank under s75 CCA as being jointly liable with the supplier of the car) then - because the fault arose within 6 months - it would be down to the bank to prove that there was nothing wrong with the car when it was sold and not down to the OP's son to prove that there was soemthing wrong with it.

I take your point that the bank are not car experts, but if they want to do all they can to protect their position against a s75 claim, shouldn't they be going to the supplier of the car and asking them to prove that the car was OK when it was sold, rather than asking the OP to prove that it wasn't?

If it went to court, the OP's son would need to prove nothing.  The burden of proof would be on the bank andor the supplier.

The point I'm trying to make - probably not very well - is that the bank seems to me to be acting at best disingenuously in asking the OP's son for evidence rather than asking the car supplier.  They ought to know that the legal burden of proof is on the supplier, not the consumer.

Hope that makes sense...

Point taken.
The reason the person is asked to get a report. Is they are in a far better position to get this done & also it is about proving they have a legitimate claim.

Remember they get refunded for the report is won.

Yes and again sorry - I wasn't getting at you!

I think the problem is the relatively widespread use of the phrase "made a s75 claim with my card provider".

My view is you only make a s75 claim in court, and that what the card provider is (or in my view should) be doing in these circumstances is trying to head off a s75 claim "at the pass" by following the same procedure and assessing whether a court claim against them would succeed.

I wouldn't disagree that - depending on the circumstances - it might be quicker to do what the bank asks.

Here, however, I think if the bank wants to repair rather than refund, the bank should do the legwork

eskbanker

Okell said:

I think the problem is the relatively widespread use of the phrase "made a s75 claim with my card provider".

My view is you only make a s75 claim in court, and that what the card provider is (or in my view should) be doing in these circumstances is trying to head off a s75 claim "at the pass" by following the same procedure and assessing whether a court claim against them would succeed.

I agree that 'with' potentially misrepresents the situation, which is closer to 'against', but perhaps 'from' is more appropriate?

Not convinced about such claims only being made in court though - surely [CCA] s75 is simply being cited as the legislation holding the card provider liable, in the same way that a dispute can be raised against a retailer under CRA?  In either case it can ultimately end up in court but the starting point is to claim from the responsible party and it only goes legal if escalation is needed....

born_again

Okell said:

born_again said:

Okell said:

born_again said:

Bank need something to prove the fault. They are not car experts, or expecting you to bring the car to them to check it. Which is why a 3rd party report is asked for.

So the report from Audi dealership should be enough. 

Bank is paying S75 out of their own pocket, as such they need proof of the fault. Any costs are refunded if you win. 

Or any tom, !!!!!! or harry rather then hiring a car. Could simply buy one & then claim there is a fault, dealer is not dealing. Get a refund & walk away laughing..

Not criticising you, but aren't the credit providers looking at that the wrong way round?

If the OP's son were actually to make a proper s75 claim (ie sue the bank under s75 CCA as being jointly liable with the supplier of the car) then - because the fault arose within 6 months - it would be down to the bank to prove that there was nothing wrong with the car when it was sold and not down to the OP's son to prove that there was soemthing wrong with it.

I take your point that the bank are not car experts, but if they want to do all they can to protect their position against a s75 claim, shouldn't they be going to the supplier of the car and asking them to prove that the car was OK when it was sold, rather than asking the OP to prove that it wasn't?

If it went to court, the OP's son would need to prove nothing.  The burden of proof would be on the bank andor the supplier.

The point I'm trying to make - probably not very well - is that the bank seems to me to be acting at best disingenuously in asking the OP's son for evidence rather than asking the car supplier.  They ought to know that the legal burden of proof is on the supplier, not the consumer.

Hope that makes sense...

Point taken.
The reason the person is asked to get a report. Is they are in a far better position to get this done & also it is about proving they have a legitimate claim.

Remember they get refunded for the report is won.

Yes and again sorry - I wasn't getting at you!

I think the problem is the relatively widespread use of the phrase "made a s75 claim with my card provider".

My view is you only make a s75 claim in court, and that what the card provider is (or in my view should) be doing in these circumstances is trying to head off a s75 claim "at the pass" by following the same procedure and assessing whether a court claim against them would succeed.

I wouldn't disagree that - depending on the circumstances - it might be quicker to do what the bank asks.

Here, however, I think if the bank wants to repair rather than refund, the bank should do the legwork

I know your not getting at me. 👍

This is a forum & discussion area, so alternative points are aired. Which is good. Might make a difference going forward, as can be raised as to why.

Thought at moment is if bank pays, then they have to try & reclaim cost, if customer loses, as well as customer may not like report result, so still complain & get t heir own.

Asking customer to get one, negates removes the issue.


This is where S75 needs a major reform. It is no longer fit for purpose, as this is not what it was designed for.