Yes it's The Car

Thank you naedanger, i agree the case worker should now a little more, to me it was black and white under the sections we have talked about, i am reading through the case workers decision and i can see so many lies the dealer has told FO about the existing faults before hand over of the car.....

should i post FO declining statement?

After you have read this please let me know so that i can post the response correcting the FO on important misleading issues.

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

I’ve now got enough information to consider Mr xxx complaint about MBNA.

After looking over all the evidence in this complaint, and taking into account everything all the parties have said, I haven’t upheld Mr xxx complaint. This means that I don’t think MBNA need to do anything more.

chargebacks, section 75 and the business the complaint is set up against

Before I explain my view in further detail, I’d like to explain why this complaint is against MBNA:

MBNA attempted both a chargeback and section 75 claim in Mr xxx complaint.

A chargeback is a process whereby disputes are attempted to be resolved between card issuers (so in this case, MBNA) and merchants (in this complaint xxx), under the relevant card scheme. A card scheme will be a scheme such as Visa, MasterCard or American Express.

As a result of section 75 of the Consumer Credit Act 1974, this states that consumers (Mr xxx) have an equal right to claim against the provider of the credit (so MBNA in this case), if there’s either a breach of contract, or misrepresentation.

What these two actions mean, are that MBNA can be held jointly responsible for the actions of the merchant (xxx). Under the rules we follow, we can only look into businesses which carry out a regulated financial activity. We can’t look at a complaint against a car dealership, because the activity they carry out – selling cars – isn’t regulated. But, we can look at this complaint against MBNA, because they provide credit, which is a regulated financial activity.

Mr xxx complaint

On 15 August 2016 Mr xx test drove a second-hand Land Rover Freelander 2. Mr xxx said that he realised there were some faults with the car, which the dealership (xx xx xx) said would be fixed before he picked up his car. I called the dealership to clarify what these faults were and I was told there were faults identified with the key fobs, and noise coming from the rear of the car. An RAC employee who accompanied Mr xxx on the test drive assured him that the noise he could hear was usual for the type of car he was looking at (an SUV).

On 19 August 2016 Mr xxx noticed there were still faults with the car. He paid the outstanding balance and took delivery of the car. It was arranged that the car would go back into a garage, recommended by the dealership (xxx autos Ltd). Mr xxx said that the fault (noise coming from the rear of the car) was still happening.

Over the next month Mr xxx then took his car to four different garages. Mr xxx believed there was a problem with his rear differential, so he got quotes from the garages he visited to find out how much it would be to repair this part.

During a health check visit (26 September 2016) with Stratstone Land Rover dealership, the vehicle was investigated and it was deemed necessary for the rear differential to be replaced.

The dealership told Mr xxx that they would rectify any fault picked up through diagnosis. And they offered to replace the rear differential, and ordered the part in for him.

Mr xxx didn’t want to return his vehicle and said that he’d given the dealership enough opportunities to put things right for him. Mr xxx complained to us because he believes his car is not of satisfactory quality, is unfit for purpose, not roadworthy and said xx xx xx are in breach of contract. He wants a full refund.

MBNA rejected Mr xxx complaint. They attempted a chargeback which was refused. Mr xxx then raised a complaint under Section 75 of the Consumer Credit Act 1974 (Section 75). MBNA rejected the claim as they didn’t think there was a breach of contract or misrepresentation. They believed the car was roadworthy and they offered to repair and replace the rear differential

what I think

I have to consider whether I think MBNA has acted fairly in rejecting the chargeback and the Section 75 claim.

chargeback

MBNA attempted a chargeback in Mr xxx complaint. A chargeback isn’t something a card provider has to do, it’s at their discretion (choice) whether or not to do this. There are rules MBNA needed to follow when making their chargeback request to the merchant acquirer (so the dealership’s bank). I’ve checked these rules. One of the things needed to be shown was that Mr xxx had attempted to resolve the complaint with the merchant (so the dealership) and that he’d returned his Land Rover to them. Mr xxx didn’t want to return the vehicle.

Because of this, MBNA warned Mr xxx that he had a weak prospect of a successful chargeback claim, because the vehicle wasn’t returned.

MBNA attempted the chargeback but it was defended by the merchant acquirer (dealership’s bank). It’s not unusual for a card issuer not to a make a second attempt at a chargeback, once the first attempt has been refused. And because the first attempt had been defended, I don’t think they did anything wrong by not attempting again. Especially when they’d already warned Mr xxx there was a weak chance of success.

MBNA didn’t have to attempt this. I know that it would’ve been disappointing for Mr xxx that it wasn’t successful, but MBNA did manage his expectations around this

Section 75

Mr xxx believes there’s been a breach of contract.

I understand that when Mr xxx took his car for a test drive he found there were faults with his car, which the dealership said would be fixed before he took delivery of the car. I spoke with the dealership and they confirmed that the faults agreed to be fixed were the key fob (one of the two supplied wasn’t working) and the fixing of a parcel shelf. I understand that the key fob wasn’t able to be fixed until a few days after Mr xxx took delivery. And a parcel shelf was fitted. Mr xxx said that he could hear noises coming from the rear of his vehicle during the test drive and an RAC supervisor told him the noises he heard were normal for his type of car.

Mr xxx still took delivery of the Land Rover and paid the remaining balance on 19 August 2016. So this shows that he accepted the car in the condition it was.
Mr xxx has said that the car was of unsatisfactory quality and un-roadworthy. I think the fact he decided to take the car away on the 19 August 2016 shows that he knew one of the key fobs hadn’t been fixed at that time and made arrangements for this to be fixed at a later date. So because he took the car away, I can’t say fairly that there had been any breach of contract. I also don’t think the car was un-roadworthy. I say this because I’ve looked at the MOT from 16 August 2016. And it passed with no advisories. If a car wasn’t safe then balance, I don’t think it would’ve passed an MOT. Also, he said he visited four different garages. It seems that he got quotes from these garages but it’s not clear if any inspection was carried out. But, the fact he was allowed to drive the car away suggests his car was safe.

Mr xxx supplied evidence from the four different garages he went to to get a quote for replacing the rear differential. But no diagnosis/investigative work about the noise coming from his car was carried out until after he’d taken delivery of the car, on 26 September 2016. This investigatory work was carried out by the Stratstone dealership. At this point, it was recommended that the rear differential needs repair/replacing. But, I’ve seen evidence that the dealership agreed to repair any fault which might’ve been diagnosed. And they ordered the rear differential part for Mr xxx, which is still available at their dealership.

my conclusion

Mr xxx purchased a second-hand Land Rover, which had a valid MOT, with no faults picked up. I think the fact the dealership were and still are prepared to replace the rear differential is a fair response to what has happened. I’ve seen nothing to make me think the car is un-roadworthy. And the noise Mr xxx has complained about can be fixed by replacing the rear differential. I’ve also checked the mileage covered over the month period of when Mr xxx took delivery of the car up to when the rear differential fault was discovered (using evidence from the vehicle’s MOT and the figures provided on the quotes from the different garages Mr xxx visited. On average it looks like there was approximately 1,000 miles (roughly) covered during this time. This is suggest the car was being driven and used, covering the average mileage expected for a vehicle over one month. I don’t think the car would’ve been driven this much if it wasn’t able to, or if it had been unsafe.

Overall, I’m of the opinion there isn’t enough evidence to make me satisfied there has been a breach of contract.

Whilst I appreciate the time and effort Mr xxx went through in visiting different garages, as soon as a diagnosis was carried out identifying the rear differential fault, the dealership told him they would fix this for him and they ordered the relevant part.

I’ve then considered whether or not there’s been any misrepresentation. As I explained above, Mr xxx purchased a second-hand vehicle and so some wear and tear is inevitable and the condition of a used car is going to be different to a brand new car.

The car was advertised as being in “excellent condition”. This is somewhat subjective. It was a vehicle which was six and half years old at the time of sale. And the fact it came with a MOT with no advisories, this indicates the car was of satisfactory quality. So I’m not able to suggest its been misrepresented.


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 9 March 2017.

Please be aware that if I don’t hear back from either party by 9 March 2017, I’ll assume that what I’ve said has been accepted and will close this complaint.

Many Thanks

"But, I’ve seen evidence that the dealership agreed to repair any fault which might’ve been diagnosed. And they ordered the rear differential part for Mr xxx, which is still available at their dealership."

this was after they had 3 attempts to repair the vehicle, it was when i asked to reject the vehicle for a full refund

this was my reply to their decision:

Hi xxxxx, please find attached the reports regarding the vehicle, I am waiting for one more from xxx Motors.

I would also like to point out a few notes myself regarding your decision

please note i never asked MBNA for a chargeback, my original emial to MBNA was 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 situations—

(a)after one repair or one replacement, the goods do not conform to the contract

you also state
previous to this Mr xxx had attempted to resolve the complaint with the merchant (so the dealership) and that he’d returned his Land Rover to them. Mr xxx didn’t want to return the vehicle.
i had returned the vehicle on 4 occasions, on the fourth attempt xxxx xxxx was unavailable

Because of this, MBNA warned Mr xxx that he had a weak prospect of a successful chargeback claim, because the vehicle wasn’t returned

Please see above

Regarding the key fobs

Mr xxx still took delivery of the Land Rover and paid the remaining balance on 19 August 2016. So this shows that he accepted the car in the condition it was.

I think the fact he decided to take the car away on the 19 August 2016 shows that he knew one of the key fobs hadn’t been fixed at that time and made arrangements for this to be fixed at a later date. So because he took the car away, I can’t say fairly that there had been any breach of contract
.
this is untrue because the failure of the key fobs was not brought to the attention of the dealer until the 22nd august which was 3 days later, and not before i took hold of the car (see diary of events)

Regarding ownership
Mr xxx still took delivery of the Land Rover and paid the remaining balance on 19 August 2016. So this shows that he accepted the car in the condition it was.
I took the dealers word that everything had been repaired and was in good working order, it was after i took ownership of the car i noticed the faults were still there whilst i was driving home, and not before i took ownership of the car, the dealership assured me all the faults were repaired before i took the car away

I’ve seen nothing to make me think the car is un-roadworthy.
(at this point i sent in the four individual reports, see below)

I have sent you a picture clearly showing that the vehicle is running at reduced engine performance

as soon as a diagnosis was carried out identifying the rear differential fault, the dealership told him they would fix this for him and they ordered the relevant part

again this is untrue as they were never told of the diagnostics, i never spoke to them after the 4/10/17 other than to ask for a full refund via email on the 5/10/17 so how could they order the relevant part when they had not been informed about it? , they said in an email I think its best we have their professional inspection. Any work that needs to be carried out will be.
i had already given them 3 opportunities to repair to repair the vehicle, they kept denying there was a fault
they never once told me they would replace the rear diff, why would they order a part to replace when they would not accept there was a fault with it?

please refer to 2015 consumer act, i have the right to reject the vehicle, the dealership refused my rejection and refused a refund

Please confirm you have received 4 documents
Thank you

i may add the documents i sent were 4 independent reports each confirming the failure of the rear differential, one of them from the manufactures themselves Land Rover, confirming the fault, the very thing the dealer denies.