Chris2023

Described below are Items 20 and 29 about "Total Vehicle Loss/GAP Waiver" and "Refundable Security Deposit". MBFS did not say that a leasee would lose his/her MSD deposit due to a collision. Especially, my security deposit was $20,500 lost in 7 months!

Mercedes Benz Financial Services even refused my request to issue me an account settlement report showing taking my $20,500.00 deposit. Is this ridiculous?
---------------------------------------------------------------------------------------------------------------------------20. Total Vehicle Loss/Gap Waiver. If the vehicle is subject to a total loss due to collision, destruction or theft, you will pay us the Gap Amount which is the difference between the Early Termination Liability and the insurance proceeds we receive based on the total loss. We agree to waive the Gap Amount if you had the vehicle insurance required by this lease at the time of total loss, in which case you will pay to us the sum of: (a) all unpaid amounts that are due or past due under this lease; plus (b) the amount of your insurance deductible; plus (c) any other amounts that were subtracted from the vehicle's actual cash value to determine the insurance proceeds we received for the total loss. If this is a single payment lease, you will receive a refund equal to your lease payment divided by your Lease Term (as shown on page 1 of this lease) times the number of months left in this lease at the time of the loss of the vehicle. If you do not have insurance on the vehicle or your insurance company denies part or all of your claim, you will be in default and will pay us the early termination liability set forth in section 23.

This subsection will not apply and you will be in default if you accept a cash-value settlement from your insurance company without first receiving our consent and forwarding any such settlement to us

……

29. Refundable Security Deposit. The Refundable Security Deposit may be used to pay all amounts that you fail to pay under this lease or to satisfy any remedy for Default. Any portion of the Refundable Security Deposit not applied to amounts that you owe will be returned to you after termination of this lease and our determination that the amounts you owed at the end of this lease have been paid. Even if we have refunded to you all or any portion of the Security Deposit, you are still responsible for amounts due and owing after termination of this lease, such as personal property tax. You may not apply any portion of the Security Deposit to a Monthly Payment. You will not earn interest on the Security Deposit. Any interest or monetary benefit to us which may accrue as a result of our retention of the Security Deposit will neither be paid to you nor applied to reduce your obligations under this lease.

……

Chris2023

I don't understand why Mercedes Benz Financial Services put the item title "Total Vehicle Loss/Gap Waiver" there. From what happened in my case, "GAP Waiver" what?

FYI. Even after my EQS totaled, the MB dealership manager still said that based on Item 20 of the lease agreement I should get back my MSD deposit. Now, he has been proved to be totally wrong also about this funny "Total Vehicle Loss/Gap Waiver" clause! Come on, he is a manager dealing with Mercedes vehicle leases every day. If even he misunderstood, how could MBFS expect its customers can understand correctly?

Frenetic

So, to summarize, when you say it got settled for $110k, is that the remaining payoff on the lease and residual?

Your insurance company agreed to a cash value of: $92k, leaving a gap of $18k?

But, MBFS deducted your SD of $22.5k and demanded the remainder of the payment ($89.5k) from you or from your insurance? If that was the case, shouldn’t insurance refund you the difference of $2.5k?

Yeah, I can certainly see your point about the gap waiver statement. Mercedes will probably argue that the first sentence of the security deposit agreement applies to this situation and that is essentially what they did. (a) all unpaid amounts that are due or past due under this lease: I assume this is the $110k? plus (b) the amount of your insurance deductible; plus (c) any other amounts that were subtracted from the vehicle's actual cash value to determine the insurance proceeds we received for the total loss this is the security deposit deduction they took back.

Yeah, like I said, it’s not clear as both statements essentially apply to the same scenario and yet they don’t reference each other at all.

Chris2023

MBFS asked my insurance company to pay it $87,000+ only (based on the fact of taking away my $20,500 MSD deposit first!). My insurance paid that amount, then mailed me a check for the remaining $4,000+.

A few days later after settlement insurance, MBFS contacted me again and said that I still owed it one-month lease payment plus $400+ fees. I paid that and now have $2,000 left from the insurance company check. A MBFS agent (during one of my phone calls to 800-654-6222) even told me that I need to contact my dealership to get back my $20,500 MSD deposit. MBFS holds all leasees' deposits, not its dealerships. How could its agent misguide me to contact my dealership for a deposit it did not hold?!

SW20S

I don’t think you’re going to be successful, but I truly wish you the best of luck and hope I’m wrong…

Frenetic

Yeah, they’re being cagey and simply do want to lose that waiver, which, under normal circumstances (and without your security deposit), they would have been forced to eat because of Total Vehicle Loss/Gap Waiver. If the vehicle is subject to a total loss due to collision, destruction or theft, you will pay us the Gap Amount which is the difference between the Early Termination Liability and the insurance proceeds we receive based on the total loss.

But, they don’t have to because of the security deposit. I think the reason you aren’t getting a straight answer is because of the way the contract is written. They realize it’s murky at best.

Take them to court.

Also, this is a good lesson: if they waive the security despot, and offer the gap protection, don’t offer any additional security deposit even if it lowers the money factor.

superswiss

The key is in section 29.

Insurance pays the bulk. MSDs pay the difference and whatever is left is covered by the GAP waiver. The only chance to get the MSDs back is to increase the insurance payout. Sounds like the insurance did pay out more than owed, hence the $4000 check you got. That's the part of your MSDs that you got back essentially. The rest went toward covering your obligations. You may need to fight the insurance if you think they undervalued the car.

Dima

Here is what I think; if you cannot find a good lawyer where you are, (if you were in Boston you'd have your money back tomorrow) you need to aim higher. Do not listen to what some people are saying here.
MBFS is using MSD to earn money on you by investing your deposit at 4% interest and giving you a 1% break on loan. This is very good for them and they would not want that to stop.
You need to write a letter and email to CEO of MBFS Peter Henn and tell him about what had happened and that you're going to take it further unless it's rectified.

ygmn

Another reason to purchase and not lease - less mess and legalese jargon

SW20S

Leasing is great you just have to follow the rules. No money down, EVER. No MSDs...no downpayments, pay the first payment and drive off.

With leasing you don't have to worry about resale value, which in an EV is huge. I would not buy an EV yet because the resale situation 3,4,5+ years down the road is a huge question mark. If you have an accident and its repaired, you don't have to worry about diminished value. If you want to keep the car, you have a set price where you can buy it out and keep it. Sometimes that value is a good deal (such as with my S560, I could flip it and make $10,000) and some times its not, and if its not you just give it back to them and wish them good luck. And if you have a business, writing lease payments off your taxes is way more straightforward.

If the OP hadn't put the MSDs down he'd be off scott free and looking for his next car.

Dima

That's just it. And the contract language doesn't change regardless of MSD. He just needs to talk to the real manager not the phone operators.

SW20S

I get it, the MSDs are attractive and it seems like a decent return for that money but the risk is that exactly this would happen.

Chris2023

"Fight the insurance", what was your point? An insurance company will only pay the fair market value of a totaled vehicle, right? The original MRSP of my ESQ SUV 450+ was $117,000. My insurance paid $92,000+ for this 7-month-old vehicle, which is fair value. For now, I can even buy a brand-new EQS SUV 450+ with the same options for $90k+.

Unfortunately, based on my contract with MBFS the totaled EQS still value was $110,000. To get my lease settled, MBFS simply took every penny of my $20,500 to fill the "GAP" while it totally ignored its "GAP Waiver" clause.

Understand MBFS and its supporters will defend its rights of taking my $20,500 MSD deposits, but no one can deny the fact that MBFS's "GAP Waiver" clause is confusing and arguable. Understand it will be hard to find a lawyer fighting with a huge company like MBFS, but I will insist to MBFS to the court no matter what will be the result. It is not a money issue only. I just felt I was cheated and unfairly treated by MBFS.

Chris2023

Thanks for your suggestion.

For now, MBFS ignores any of my requests including a lease settlement report with payment amount breakdowns. My case with MBFS is not over yet, I will definitely fight for my legal rights.

superswiss

So this is probably the most useful information you've provided so far with actual numbers. So, let me break it down for you. You owed MBFS $110,000 at the time the car was destroyed, however, it was only worth $92,000 based on the market value, so you were upside down by $18,000. Now your interpretation of the lease agreement is that those $18k should be covered by the Gap Waiver, however, you are ignoring section 29 of the lease agreement where it clearly says that the MSDs may be used to cover any outstanding obligation. So that's what they did. You gave them $20,500 in MSD, which they were in their right to use to cover the remaining $18k, leaving a gap of $0, so nothing left for the Gap Waiver to cover, but there was some money left over which sounds like you got a check for it. This is all above board. You can twist and turn this how you want and listen to others who seem to share your opinion, but opinion isn't what the lease agreement says. Your lawyer you consulted is clearly angling for a technicality and you may win in small claims court if MBFS finds it's not worth for them to fight you on your incorrect interpretation of the lease agreement. You may have a case based on the sales people at the dealership etc. misguiding you, and making you believe that you'll get your MSDs back in this situation, but let's be honest for a moment. You signed a contract that you didn't read or didn't understand and relied on what sales people told you. Usually, that's not a defense in front of a judge.

SW20S

Thats the issue. The issue really is the insurance payout was too low, but you cannot fight the payout because you aren't the beneficiary of the policy, MBFS is...and they are whole so they don't care. Really MBFS should fight to get enough out of the insurance payout to get you your MSDs back...but they don't want to.

Chris2023

@superswiss, I provided all the numbers in my earlier messages, not until until my last message.

You have been trying to defend MBFS, and convince me its rights to take away my $20,500.00 MSD deposits. So far, none of what you have posted here to support that.

superswiss

Just to be clear, I couldn't care less about MBFS. If you think I'm defending them that's fine, and if you think I can't understand a legal contract, that's fine, too. I'm not out $20k, because I didn't understand how MSDs work. If you don't get it, you don't get it. There's nothing I can do about it. I wish you good luck. Shooting the messenger isn't gonna get you your $20k back.

juanmor40

I am not to defend/support anyone. What we must take from this discussion is:
1 - A lease agreement must be read and understood when "meaningful amounts" are in play (that depends on each individual)
2 - Contracts are not to be interpreted by either side of the parties involved since that is subjective, i.e. conflict of interest. Either both parties agree, both disagree or a third party decides. No other combination is possible.
3 - Whenever a contract interpretation is in dispute you need a third party, a judge is best.

From this conversation I take it is not about who is right, or wrong, but the possible interpretations that can be on the table when the 3rd party makes the decision. It is important to know as many angles as possible.

Finally, we are all here to help each other.

SW20S

Nobody is trying to defend MBFS, we're explaining why this happened and why MBFS is not in violation of the terms of the lease.

MBFS SHOULD care about you enough to negotiate the insurance payout so you get your MSDs back, but they don't because they don't have any skin in that game. Unfortunately like all banks they don't care about us.

The title of the thread is "Is it legal for MBFS to take away my MSDs" and my answer to that question is unfortunately yes. You need to be willing to listen to viewpoints that don't tell you what you want to hear but also what you need to hear. Attorneys will tell you all day long they can win and run up a big tab.

superswiss

Indeed and might wanna add that MBFS has been doing leases for much longer than any of us here have driven MBs, so if anything in their lease agreement is against the law, it'd have been challenged a long time ago. This is not their first rodeo.

Frenetic

He doesn’t need a lawyer for small claims court. It’s just a matter of filing the paperwork and paying the court fee. It’s pretty cut and dry and you can make your case from your own contract, asking the judge to interpret and decide.

SW20S

But in small claims court MBFS's lawyers will beat him into the ground. If it makes him feel better he should do that, but its just an exercise. If MBFS does lose, they will appeal and he will need a lawyer.

Presumably he has some sort of good job/career to make him able to afford one of these cars. I know I don't have anywhere near the time or energy to devote to something like then when loss is almost guaranteed. One person with no lawyer is not going to beat a corporation with a legal team in house in small claims court lol

Frenetic

There’s not much to get beaten up over. It’s in the contract and when I read it, it’s unclear if the security deposit supersedes the waiver because it’s not stated anywhere. I would argue that there’s nothing in the contract that says the security deposit nullifies the gap waiver.

superswiss

It is clear, because a gap waiver is a debt cancellation agreement and not an insurance. It kicks in if there's still a balance left after all securities have been liquidated.