Blackhorse Antics - Court action threatened

[heliosfa]

Don't ya love it when one department says another department is doing something when they are not?

 

This morning I called (yes, I was recording...) their collections department, who eventually said that the letter we send rescinding contract had been passed to their "Compliance and Administration" department and that I should phone them in the afternoon.

 

So, I called that department (again recorded) who had no record of the call. Instantly, when I mentioned commissions, the bloke asked if I was relying in the Wilson/Hustanger which I responded yes, and Panama.

 

He then went on to try and say the following:

 

• The dealer wasn't a broker (yes they were, dealt with lots of different finanace co.s)
  
• Suzuki wasn't responsible - it is the dealer (i said Dealer gone bust and pointed him towards Panama judgement, and that Suzuki paid the commission)
  

I love it when these companies try tofob you off and mislead you...

 

Ah well, back to the fight!

H

[heliosfa]

OK, Update time (Sorry i've been away!)

 

Blackhorse, like MBNA, ignored our 1st letter re. secret commission that was sent on the 12th of June so they got an LBA on the 16th.

 

This prompted a response which arrived yesterday stating:

 

• If there was a fiduciary relationship, the car co. could not have made a profit on the car.
  
• So no fiducciary relationship
  
• Quoting Bristol and West Building Society v. Mothew [1998] Ch 1
  

I've had a brief read of the case they quoted, but can anyone with a bit more know give me some advice please?

 

 

Thanks in advance,

H

[heliosfa]

Bump!

[heliosfa]

**bumpy**

[1970]

Interesting thread. Any developments?

[steven4064]

This prompted a response which arrived yesterday stating:

 

• If there was a fiduciary relationship, the car co. could not have made a profit on the car.
  
• So no fiducciary relationship
  
• Quoting Bristol and West Building Society v. Mothew [1998] Ch 1
  

That is bizarre logic

 

The fiduciary relationship has nothing to do with the car - there is no quetsion of them acting as fiduciary in relation to selling the car. The fiduciary relationship arises because they acted as agent in getting you finance for the car. Accepting (or giving) commission and not telling you is a breach of that fiduciary relationship. As an agent, they had a duty of care to get the best deal for you. A commission means they potentially (and that is all that matters - potentially) got the best deal for them - that is not allowed.

[heliosfa]

Interesting thread. Any developments?

Hi 1970, i'm afraid not. Suzuki/Blackhorse are probably waiting for me to respond...

 

That is bizarre logic

 

The fiduciary relationship has nothing to do with the car - there is no quetsion of them acting as fiduciary in relation to selling the car. The fiduciary relationship arises because they acted as agent in getting you finance for the car. Accepting (or giving) commission and not telling you is a breach of that fiduciary relationship. As an agent, they had a duty of care to get the best deal for you. A commission means they potentially (and that is all that matters - potentially) got the best deal for them - that is not allowed.

Thanks Steven,

 

that is what I thought. The sale of the car and providing of finance are two seperate acts. e.g. she could have got the car without the finance.

 

Now just to put this in a letter back to them...

 

Or is there any case law re. selling goods and providing finanace/waranty/insurance and there being a fiduciary relationship being formed?

 

Thanks,

H

[steven4064]

I don't know of any case law but I bet there is. Certainly there is case law about conflicts of interest and fiduciary duty (ie that it mustn't exist)

[pt2537]

I don't know of any case law but I bet there is. Certainly there is case law about conflicts of interest and fiduciary duty (ie that it mustn't exist)

Image View vs Kelvin Jack is the leading case on commissions

 

its on Bailli too, it involved counsel who we use, Mr Steven Turner;)

[steven4064]

Is the Image View v Kelvin Jack case online - I can find reports but not the case itself?

[pt2537]

Imageview Management Ltd v Jack [2009] EWCA Civ 63 (13 February 2009)

[steven4064]

Thanks pt - saved that somewhere safe

[summerbreeze]

This thread is very interesting to me .

 

Is the Car Dealer obliged to find the best deal for the car buyer ? I am not sure he is .

 

I am sure he will suggest to the buyer a deal that will benefit himself though.

 

Is he the agent of the buyer if he is not retained by the buyer to find a car with associated finance ?

 

If he says to the buyer for example ' The best deal I can get for you on finance is with blah blah ..... ' is he establishing a fiduciary relationship with the buyer ?

 

However if there is or is not a fiduciary relationship should the amount of any commission paid to the car dealer by the finance company be disclosed to the car buyer or be on the paperwork given to the buyer ?

[steven4064]

The car dealer is not obliged to find the best deal for the car buyer normally but he sure is if he gets finance, insurance, etc and accepts a commission or it

 

If he finds or supplies finanace for the buyer, then he is the buyer's agent

 

"If he says..." - yes

 

The dealer can accept commission but it needs to be shown on the agreement and taken into account in calculating the cost of credit. Same applies if he gives commission.

[summerbreeze]

Thank you Steven

 

I sent a Sar to a Car Dealer and asked the specific question .

 

'Please tell me the amount of any commission you received for placing the finance contract and if you did not receive any commission or other payment please state this in writing.'

 

All I got back was a copy of the agreement and handover details and told to refer to the finance company.

 

I sent sar to the finance company and again asked the specific question about comission paid

 

It was ignored in the response I got and I did not get the underwriting sheet.

 

I think there is a huge business in secret commission paid to car dealers and to be honest I think they generate the majority of their income that way.

 

In my agreement there is absolutely no reference to commission .

[heliosfa]

Imageview Management Ltd v Jack [2009] EWCA Civ 63 (13 February 2009)

Ta PT, I think I already have that squirrelled away for future ref

 

I don't know of any case law but I bet there is. Certainly there is case law about conflicts of interest and fiduciary duty (ie that it mustn't exist)

I hope there is, I guess i'll have to have a stumble through Balli and Google to see if I can find anything about a fiduciary relationship being formed for the act of a "dealer" selling insurance/finance/etc. with the sale of goods owned by the "dealer" that would not be subject to a fiduciary relationship.

 

Thank you Steven

 

I sent a Sar to a Car Dealer and asked the specific question .

 

'Please tell me the amount of any commission you received for placing the finance contract and if you did not receive any commission or other payment please state this in writing.'

 

All I got back was a copy of the agreement and handover details and told to refer to the finance company.

 

I sent sar to the finance company and again asked the specific question about comission paid

 

It was ignored in the response I got and I did not get the underwriting sheet.

 

I think there is a huge business in secret commission paid to car dealers and to be honest I think they generate the majority of their income that way.

 

In my agreement there is absolutely no reference to commission .

IF your beef is with Blackhorse, then what you want is the "Dealer Proposal" (If I recall correctly). This came in my SAR from them with no prroblem.

 

 

 

The crazy thing is, the case law they quoted seems to help my case...

 

 

H

[Josie8]

SSu

[heliosfa]

SSu

 

 

:S ??

 

sorry, i'm lost - what does SSu mean?

[supasnooper]

:S ??

 

sorry, i'm lost - what does SSu mean?

 

Think it means subbing

[heliosfa]

Think it means subbing

 

Tis what I thought at first, but hey, never know

 

Well, BH have a letter winging it's way to them refuting their stance.

 

Now, do we take them to court, or wait and hit them will the defence?

 

H

[heliosfa]

Hi All,

 

So, I have spent a large chunk of my day trying to find a solicitor who would

a) Take on the case (Quite a few in MK don't do "Consumer" matters)

b) Do a free initial consultation

c) Offer a CFA with ATE insurance.

Eventually, I found one and my OH and I are going to see them on Thursday afternoon to see if the Sol wants to take on the case and sue the pants off of BH

 

H

[summerbreeze]

Wishing you luck

[heliosfa]

Wishing you luck

 

Thanks Summer,

 

I've been having a think about your issue and I'll try and post something up tonight

 

Thanks,

H

[heliosfa]

OK, update time.

 

We went to see the solicitor on Thursday and I seem to have come away with more questions than answers. She has all of our docs for 2 weeks to go over them and come up with a "Plan".

 

She agrees with BH (it seems) on the fiduciary duty aspect, but seems to think the commission could cause problems as the finance co. are meant to disclose it on the agreement?

 

She also thinks that the agreement is missing prescribed terms? (Agreement HERE)

And her first thoughts were "It's Hire Purchase" or that they should not have taken the car.

 

So all in all, a bit confused!

 

I don't suppose someone in the know could comment? is this sol right or does she not have consumer credit experience?

 

H

[heliosfa]

bump