My Battle with The Trade Centre

eskbanker

https://forums.moneysavingexpert.com/discussion/comment/81976124#Comment_81976124

S75 holds the creditor liable for the breach of contract, and thereby on the hook for remedying it - if the purchaser is exercising their CRA right to reject, rather than repair, then that remedy should entail a refund to the value of the faulty one (if it hadn't been faulty), so it effectively includes the value of the part ex, unless by some chance the seller still has the old car, in which case it could theoretically be returned as part of the settlement.

Grumpy_chap

https://forums.moneysavingexpert.com/discussion/comment/81976124#Comment_81976124

No. .

Yes.

Okell

@Fake_Tofu - "… I am unable to purchase a new car until this issue is resolved as if it is found I don't have the right to reject I am stuck with the car. If I am successful with the charge backs (£10,000) but not S75 (£3,200), am I better off returning the charge back money and keeping the car? I guess this is my fall back position. I'm still the legal owner of the vehicle and it might be better to take a chance on a dodgy car than the definitely loose more than £3k???…"

Assuming you are exercising the short-term right to reject I think the consensus here seems to be that a successful s75 claim would get you a full refund* (ie £13,200 including trade in value) whereas a chargeback would only refund you what you paid on the debit and credit cards and exclude the trade in value.

You would also need to raise two chargeback claims - one for each card.

Have M&S told you this? Do they know you used two cards?

*If outside the short-term window the trader could reduce any refund to reflect whatever use you have had of the car

Fake_Tofu

To answer some of the questions and give some further info since my last post. My comments below any questions/quotes are in bold.

I have escalated my complaint to the FOS and they have accepted it, and I will be assigned an investigator in a few weeks. They have contacted M&S bank to hear their side of the story.

There was a £5000 debit card, £500 debit card, £5000 credit card and £3200 part ex. (total £13,200).

The car was retained when I told them I had started a S75, I have a key and paperwork. Citizens Advice have told me the car is legally mine until I get a full refund. Wouldn’t I need to sign something to let someone else buy the car from me? I did offer to return the other key and sign it back over etc. but they didn’t want me to “we will be in touch with you”.

“FOS often overturn banks' rejections of s75 claims, not on procedural aspects but on the merits of the claim itself.” – FOS state this on their information pages.

“"… My timeline means I am pursuing the short time right to reject…"

I'm not contradicting you, but what is your timeline? Bearing in mind you agreed to at least one (possibly two) repairs are you sure you are within the extended short-term right to reject window?” – Yes, especially as the clock is paused whilst it is undergoing repairs. Car purchased end of Jan and formally rejected end of Feb.

“The CC is processing a chargeback. This will only be for that proportion. The OP will need to raise a separate chargeback claim for the amount paid by the debit card. Even if it is the same financial institution that holds both cards I suspect that the chargebacks will need to be raised separately. @born_again  might know?”

I have started charge back with the debit cards, these were submitted shortly after the S75 at the CC request. They did not send me the paper work/ forms to start the chargeback for the actual credit card payment, they have acknowledged this was there error in writing and offered me £75 apology.

They have told me that they won’t consider my S75 until all chargebacks are completed but as it takes 60 days to settle a chargeback (it is only a temporary credit until then, that can be reversed). If I submit the chargeback on Monday, this would mean waiting until the end of June for confirmation of the outcome. I have been advised that only at that point would consideration of a Section 75 claim for the £3,200 will commence, which could take a further period (potentially up to eight weeks, extending into late August).

I understand that cancelling my chargeback requests would allow M&S Bank to consider my Section 75 claim for the full £13,200 immediately as all chargeback options have been exhausted (you are only allowed 1 attempt). While this is not ideal — as it would place the full liability with M&S Bank rather than allowing recovery from the retailer — it would nonetheless provide greater certainty than awaiting the completion of the chargeback process and subsequent delays.

My complaint is currently with the Financial Ombudsman Service. The Ombudsman may determine that I do not have a valid claim, in which case I would not be entitled to a refund and would be expected to recover the vehicle (I’m not sure what happens if the Trade Centre have sold it on again?). Alternatively, they may determine that I am entitled to a full refund and potentially associated costs. I have sought advice from Citizens Advice and other legal advisors, who had the opinion that I was within my rights to reject the vehicle and that I have a valid legal basis for my claim.

The banks obviously want to look after their own interests, but I need to look after mine and my families. Why would I put myself through a longer process of uncertainty just to save the credit card company money?

What I have done is to contact the bank to say if they consider my S75 in parallel with the chargebacks then I will ensure all paperwork, evidence etc. is all submitted with appropriate banks (most of this has already been done) to reduce the amount paid back to my by S75. If I know the claim will be successful, I can go and buy a new car. If they say it isn’t (and FOS agrees) then I guess I have to keep the car. Either way, I will have a car of some description sooner than starting a chargeback for the credit card now. For the record I don’t think they will accept this but I thought it was a fair offer – again I checked with citizens advice before contacting the bank.

born_again

I take it that you had complained to bank & gone through their complaints process & reached either a deadlock letter or 8 weeks limit.

Simply raising a S75 claim is not a complaint.

Do not expect a fast decision from FOS, can be months before they even look at it.