Buyback Eligible Lessee vs Eligible Owner

I’m experiencing issue with my 2013 VW Passat buyback. I’m the 3rd owner of this car and was the only owner who filed claim and VW approved my buyback. I purchased this car in Oct 2017. This car was leased by the 1st Owner during Sep 2015. On Feb 2018 VW had all of my documents complete and been reviewing my case till they sent me an offer for buyback or fix in April, 2018. After I notarized my offer and uploaded to my portal they sent me to the next step to schedule an appointment with our local dealer to bring car, title and keys. My appointment was scheduled on July 12, 2018 and since I selected EFT (Electronic Funds Transfer) they emailed me receipt and said within 3 banking days to expect email from Chase to finish money transaction. I been waiting for that email from Chase since then but instead of instruction I got another email from VW on July 24, 2018 stating that buyback letter was erroneously mailed to me on May 9, 2018 and that I’m not eligible for buyback and have to complete my claim as a Lessee and not as an owner which denies buyback option and leave only modification option for lessee. I called VW and was trying to explain to them that according original court final approval order my status for this vehicle describes as an eligible owner and no lessee but VW told me that in their system shows that this VIN was under lease during Sep 2015 and lease follows VIN but not the current owner, so no matter who will claim for this car either original owner or any owners after they have to file claim as a lessee and not the owner. I told them that if I have to resubmit my claim again I can’t answer ”Yes” that question which asks if I have active lease during Sep 2015 because I didn’t have lease during that time since I’m the 3rd owner and if I answer “no” the system automatically make me an eligible owner which is correct in my situation. I asked them if they are forcing me to lie to that question in order to meet their wish and make me ineligible owner? And they said we can’t give you a legal advice how to answer this question but you have to contact attorney and have them to help you with this question. So after I downloaded a copy of original “final approval Order” and studied myself I found that according court order settlement terms I’m an eligible owner and not the lessee. According Court definition of an eligible owner I fall in this category because I acquired my car in Oct 2017 (which falls in the time frame after June 28, 2016, but before the end of the claim portal which is Dec, 2018. Then it says except that the owner of an Eligible Vehicle who had an active lease issued by VW Credit, Inc. as of September 18, 2015, and purchased an Eligible Vehicle previously leased by that owner after June 28, 2016 shall be an Eligible Lessee. So VW telling me that lease term in this sentence applies to car and not the owner, but I clearly see that an active lease issued by VW Credit, Inc. as of September 18, 2015 applies specifically to the original owner who had active lease and doesn’t apply to any other owners after original which wouldn’t make sense by judge to rule that way. So now my car at the local dealer, I signed title to VW on my appointment day and VW wants me to go back and pick up my car and continue my claim as a lessee. It’s very unusual situation and I’m not sure what to do next as I clearly see that VW violates court order. Any thoughts or experience in that matter?
Below is the copy of Settlement terms taking from Final approval Order by Judge Breyer on Oct 25, 2016.
Case 3:15-md-02672-CRB Document 2102 Filed 10/25/16 Page 5 of 48
II. SETTLEMENT TERMS
The key provisions of the Settlement are as follows. The Settlement Class is defined as all persons (including individuals and entities) who, on September 18, 2015, were registered owners or lessees of, or, in the case of Non-Volkswagen Dealers, held title to or held by bill of sale dated on or before September 18, 2015, a Volkswagen or Audi 2.0-liter TDI vehicle in the United States or its territories (an “Eligible Vehicle”), or who, between September 18, 2015, and the end of the Claim Period, become a registered owner of, or, in the case of Non-Volkswagen Dealers, hold title to or hold by bill of sale dated after September 18, 2015, but before the end of the Claims Period, an Eligible Vehicle in the United States or its territories.
(Dkt. No. 1685 ¶ 2.6.) Eligible Vehicles are
Model Year 2009 through 2015 Volkswagen and Audi light-duty vehicles equipped with 2.0-liter TDI engines that (1) are covered, or purported to be covered, by the EPA Test Groups in the table [in paragraph 2.33]; (2) are, at any point during the period September 18, 2015 to June 28, 2016, registered with a state Department of Motor Vehicles or equivalent agency or owned by a Non-Volkswagen Dealer in the United States or its territories that (a) holds title to the vehicle or (b) holds the vehicle by bill of sale; (3) for an Eligible Owner, are currently Operable or cease to be Operable only after the Opt-Out Deadline; and (4) have not been modified pursuant to an Approved Emissions Modification. Eligible Vehicle also excludes any Volkswagen or Audi vehicle that was never sold in the United States or its territories.
Class Members are categorized as Eligible Owners, Eligible Lessees, or Eligible Sellers.
An Eligible Owner is
the registered owner or owners of an Eligible Vehicle on June 28, 2016, or the registered owner or owners who acquire an Eligible Vehicle after June 28, 2016, but before the end of the Claim Period, except that the owner of an Eligible Vehicle who had an active lease issued by VW Credit, Inc. as of September 18, 2015, and purchased an Eligible Vehicle previously leased by that owner after June 28, 2016 shall be an Eligible Lessee. A Non-Volkswagen Dealer who, on or after June 28, 2016, holds title to or holds by bill of sale an Eligible Vehicle in the United States or its territories shall qualify as an Eligible Owner regardless of whether that Non-Volkswagen Dealer is registered as the owner of the Eligible Vehicle, provided that the Non-Volkswagen Dealer otherwise meets the definition of Eligible Owner.
(Id. ¶ 2.30.) An Eligible Lessee is
(1) the current lessee or lessees of an Eligible Vehicle with a lease issued by VW Credit, Inc.; (2) the former lessee or lessees of an Eligible Vehicle who had an active lease issued by VW Credit, Inc. as of September 18, 2015 and who surrendered or surrenders the leased Eligible Vehicle to Volkswagen; or (3) the owner of an Eligible Vehicle who had an active lease issued by VW Credit, Inc. as of September 18, 2015, and who acquired ownership of the previously leased Eligible Vehicle at the conclusion of the lease after June 28, 2016. For avoidance of doubt, no person shall be considered an Eligible Lessee by virtue of holding a lease issued by a lessor other than VW Credit, Inc.

This is the 2nd report of this happening.

So did VW say that you have to go get the car back and they will send you the title back?

Yes that's exactly what they said...

I decided to write an email to the Class Counsel today and this is what they emailed me back:
My name is Xxxx Xxxxxx, and I am a Paralegal at Keller Rohrback. The managing partner at my firm has been named to the Plaintiff Steering Committee, and we represent TDI Class Members.
I understand that it’s frustrating that VW did not catch their error earlier, but per the definitions in the Settlement Agreement, you are indeed an Eligible Lessee – here are the definitions of Eligible Lessee and Eligble Owner, and I’ve bolded the sections that apply to you:
Paragraph 2.29 of the Settlement Agreement:
“Eligible Lessee” means (1) the current lessee or lessees of an Eligible Vehicle
with a lease issued by VW Credit, Inc.; (2) the former lessee or lessees of an Eligible Vehicle who had an active lease issued by VW Credit, Inc. as of September 18, 2015 and who surrendered or surrenders the leased Eligible Vehicle to Volkswagen; or (3) the owner of an Eligible Vehicle who had an active lease issued by VW Credit, Inc. as of September 18, 2015, and who acquired ownership of the previously leased Eligible Vehicle at the conclusion of the lease after June 28, 2016. For avoidance of doubt, no person shall be considered an Eligible Lessee by virtue of holding a lease issued by a lessor other than VW Credit, Inc.

Paragraph 2.30:
“Eligible Owner” means the registered owner or owners of an Eligible Vehicle on
June 28, 2016, or the registered owner or owners who acquire an Eligible Vehicle after June 28, 2016, but before the end of the Claim Period, except that the owner of an Eligible Vehicle who had an active lease issued by VW Credit, Inc. as of September 18, 2015, and purchased an Eligible Vehicle previously leased by that owner after June 28, 2016, shall be an Eligible Lessee.
A Non-Volkswagen Dealer who, on or after June 28, 2016, holds title to or holds by bill of sale
an Eligible Vehicle in the United States or its territories shall qualify as an Eligible Owner
regardless of whether that Non-Volkswagen Dealer is registered as the owner of the Eligible
Vehicle, provided that the Non-Volkswagen Dealer otherwise meets the definition of Eligible
Owner….(the rest of this section discusses dealerships and does not apply to your situation).

Essentially – if the vehicle was leased on 09/18/2015, the vehicle is eligible for Eligible Lessee restitution, not Owner Restitution. It does not matter if you held the lease on 09/18/2015 or a previous owner did.

And this is what I replied back to them:

Hi Xxxxxx, it looks like we both read the same definitions and have a different understanding… this is my understanding of this definition:

except that the owner (not A OWNER or ANY other parties because its says the owner which means the only and original owner) of an Eligible Vehicle who had an active lease (refers to that same original owner who leased their car during Sep 2015) issued by VW Credit, Inc. as of September 18, 2015, and purchased an Eligible Vehicle previously leased by that owner (again refers to the same original owner) after June 28, 2016, shall be an Eligible Lessee.

Eligible Lessee is: or (3) the owner (not A OWNER or ANY other parties because its says the owner which means the only and original owner) of an Eligible Vehicle who (refers to that same original owner) had an active lease issued by VW Credit, Inc. as of September 18, 2015, and who (again refers to the same original owner) acquired ownership of the previously leased Eligible Vehicle at the conclusion of the lease (again refers to that same owner who bought the same car that he or she leased from VW Credit, Inc.) after June 28, 2018. So this sentence talks only about original owner who had an active lease with VW Credit, Inc. and after their lease ended they decided to buy the same car and keep for themselves… It doesn’t mean or apply to any future owners who buy this car that was leased during Sep 2015 by any other parties…

Essentially – if the vehicle was leased on 09/18/2015, the vehicle is eligible for Eligible Lessee restitution, not Owner Restitution. It does not matter if you held the lease on 09/18/2015 or a previous owner did. Again it does matter if that car was leased by original owner during 09/18/2015 because it does not talk about any other parties accept the owner which is original…

Both of these paragraphs refer to the original and only one owner who leased their car during Sep 2015 and knowing that this car has a scandal issue decided to purchase the same car they leased because they had full disclosure of what’s going on, but it doesn’t refer to the next owner who acquired the same car which was sold by VW Group after Sep 2015 when any sale of unmodified cars by VW Group was prohibited (which is another legal issue in my case). I want you again to study and read carefully what court ordered VW Group to do and follow its order and not how VW defines in their own understanding… This is a HUGE issue because I can only imagine how may eligible owners VW Group converted to eligible lessees because of their definition of these paragraphs and denied buyback. If this matter will not be reviewed carefully by Class Counsel I would have to team up with all eligible owners who were forced to change their status to eligible lessees and file another law suit against VW Group of America. I hope you can really take this as a serious violation from VW Group, study these paragraphs well again and get back to me soon so we can discuss. Thank you!

Here is another reply I just got from Class Counsel:
[Message from VW Class Counsel Lawyers at https://vwclasscounsel.com/]

Xxxxx,

The definition of “Eligible Owner” is clear on this issue, and VW and the PSC have been consistent throughout the settlement – if a vehicle was leased on 09/18/2015, the settlement benefit for that vehicle is an AEM and Lessee Restitution Payment.

Look again at Section 2.30: “Eligible Owner” means the registered owner or owners of an Eligible Vehicle on June 28, 2016, or the registered owner or owners who acquire an Eligible Vehicle after June 28, 2016, but before the end of the Claim Period, except that the owner of an Eligible Vehicle who had an active lease issued by VW Credit, Inc. as of September 18, 2015, and purchased an Eligible Vehicle previously leased by that owner after June 28, 2016, shall be an Eligible Lessee.

This clearly states that an Eligible Lessee is someone who purchased a vehicle that was leased on 09/18/2015. The fact that the vehicle changed hands two times (Lessee, a third party, you) does not alter the fact the vehicle was leased on 09/18/2015. If you disagree (and it appears you do), you can appeal this decision to the Claims Review Committee.

To submit an appeal to the Claims Review Committee, you must send a written request to appeal to the Claims Review Committee, P.O. Box 214500, Auburn Hills, MI 48321 or crc@vwcourtsettlement.com.
Your request must include the following information:
• Claimant’s name, address, telephone number, VIN of the affected vehicle and Claim Reference Number.
• A brief statement explaining why you believe your vehicle should be treated as a non-lessee vehicle.
After your claim is received and reviewed by the Claims Review Committee, you will receive a final determination. These claims are reviewed as they come in, and class counsel cannot know when you will receive a response or handicap your chances of success.
-Xxxxxxx

Seriously??? you can't stay focused on these definitions and have to mix apples and bananas? This time he refers to Section 2.30 which again talks about THE OWNER who had active lease during Sep 2015 and purchased their own lease. Wow I'm very surprised how legal team can give wrong explanation of what original court document ordered and meant to be... just preparing to the next level as we have no time to agree with their wrong game...

Just a side question. Why do you want to sell the car back to VW? You purchased it a few months ago and you were aware of this whole diesel drama.

marmur99 said:

Just a side question. Why do you want to sell the car back to VW? You purchased it a few months ago and you were aware of this whole diesel drama.

Click to expand...

Does my answer to your question will change the status from Eligible Lessee to Eligible Owner in my case? if it will, I have no problem to answer )))

avalongar, unfortunately lawyers cannot do anything about it. I have been fighting to figure out similar issue. You need to appeal to CRC and hope for the best

If I recall correctly, in the first months of the settlement lessees were selling the car to their cousin for a cut of the buyback. VW took their concerns to the judge and the practice was stopped. On the 3.0 vehicles, a vehicle that was leased at the time of the settlement is always leased. That makes sense to me. I don’t see why they would have responsibilities for a car whose ownership type changed after the fact of dieselgate.

I don’t think you are going to get anywhere by parsing words and phrases from the settlement language. As stated above, try your luck with the CRC. In my opinion, based on your story above, you are lucky to get lessee compensation out of this.

Sounds like you took your chance and lost. Appeal to the CRC and see what you can get. Considering class counsel says you are not eligible chances are good you will lose. There are some who have started their own group considering/pursuing their own law suit. You may want to try that kind of thing.

Your answer has to be you bought the car to profit from the situation at hand knowing full well of the problem. VW, the class counsel, the CRC, and the Judge have seemed to take a dim view of those who are trying to do this, and are actively working to stop this from happening now when they can. Not judging whether it is right or wrong, just the way it is. Good luck with your appeal.

avalongar said:

Seriously??? you can't stay focused on these definitions and have to mix apples and bananas? This time he refers to Section 2.30 which again talks about THE OWNER who had active lease during Sep 2015 and purchased their own lease. Wow I'm very surprised how legal team can give wrong explanation of what original court document ordered and meant to be... just preparing to the next level as we have no time to agree with their wrong game...

Click to expand...

I would tend to agree that the wording under both the Eligible Owner (2.33) and Eligible Lessee (2.30) sections seem to indicate that someone who acquired a car that was previously leased is treated as an Eligible Owner unless they were the ones that actually held the lease.

The following two sections are pulled from the Final Approval Order – Class Action Agreement

(Page 5/48) (Id. ¶ 2.33.) An Eligible Owner […] or the registered owner or owners who acquire an Eligible Vehicle after June 28, 2016, but before the end of the Claim Period, except that the owner of an Eligible Vehicle who had an active lease issued by VW Credit, Inc. as of September 18, 2015, and purchased an Eligible Vehicle previously leased by that owner after June 28, 2016 shall be an Eligible Lessee.

This seems to be saying two things: 1) you are an Eligible Owner if you buy an Eligible vehicle after June 28, 2016 and before the end of the Claim Period, 2) you are an Eligible Lessee if you purchased the vehicle from an “owner” who had an active lease with VW Credit as of September 18, 2015. There does not seem to be anything that clarifies the two-hop scenario where someone purchases a car from someone that purchased a car from a lessee, at that point you are no longer “purchasing an Eligible Vehicle previously leased by that owner.”

(Page 6/48) (Id. ¶ 2.30.) An Eligible Lessee […] (3) the owner of an Eligible Vehicle who had an active lease issued by VW Credit, Inc. as of September 18, 2015, and who acquired ownership of the previously leased Eligible Vehicle at the conclusion of the lease after June 28, 2016.

This seems to be saying that you are an Eligible Lessee if you were the lessor of a vehicle with an active lease issued by VW Credit as of September 18, 2015 and you (the lessor) acquire ownership of the vehicle at the conclusion of the lease after June 28, 2016. I am interpreting this the same way that avalongar is, that this is explicitly discussing a lessee who bought out their own lease.

Similar definitions are provided in the Approved Class Action Settlement Agreement


(Page 8/52) 2.29. “Eligible Lessee” means […] (3) the owner of an Eligible Vehicle who had an active lease issued by VW Credit, Inc. as of September 18, 2015, and who acquired ownership of the previously leased Eligible Vehicle at the conclusion of the lease after June 28, 2016.

(Page 8/52) 2.30. “Eligible Owner” means […] except that the owner of an Eligible Vehicle who had an active lease issued by VW Credit, Inc. as of September 18, 2015, and purchased an Eligible Vehicle previously leased by that owner after June 28, 2016, shall be an Eligible Lessee.

This same interpretation is provided in the Class Membership Questions of Exhibit 3 Long Form Notice

13. I bought my car after September 18, 2015. Am I a class member? What are my benefits?

If you bought your vehicle after September 18, 2015 and still own it, you are a class member, and you are entitled to make a claim for a Buyback or an Approved Emissions Modification, and to receive Owner Restitution as described in Question 19.

14. How am I included in the Class Action Settlement if I leased and then purchased my car?

If you had an active lease on September 18, 2015, and purchased the Eligible Vehicle on or after June 28, 2016, you are considered an “Eligible Lessee.” If you had an active lease on September 18, 2015, and purchased the Eligible Vehicle before June 28, 2016, you are an Eligible Owner.
Neither of these Class Membership Questions or the two sections identified from the Final Approval Order seem to indicate that a leased car is always considered a leased car and that lease status will follow the car and not just the original lessee.

The wording of these sections seems to be quite different from what is used in the 3.0 settlement:

Amended Exhibit 3 (Page 23) of the 3.0 settlement shows a category for “Eligible Lessees (now owns car)” and provides the definition as “At the time of Reduced Emissions Modification, owns an Eligible Vehicle that had a lease issued by VW Credit, Inc. (including Audi Financial Services) or Porsche Financial Services, Inc. and that was purchased off lease after January 31, 2017”

Whereas the 2.0 settlement Amended Exhibit 3 (Page 9) shows a category for “Eligible Lessee (now owns car)” and provides the definition as “Lessee of an Eligible Vehicle, with a lease issued by VW Credit, Inc., who purchased the Eligible Vehicle after June 28, 2016.”

If class counsel tells you you are not eligible you are probably done, no matter how anyone else interprets the wording. CRC or another law suit with different counsel who sees your side of things will be the only other possible solution to getting payment. Remember though, the Judge isn't on your side either. No use arguing it all again here. Post again if you get satisfaction so others may learn. You aren't fighting a steep up hill battle here you are facing a sheer vertical cliff.

You speculated and lost. Time to put your big boy pants on.

File an appeal with CRC. You have a good chance, seems like CRC sides with us a bit more. If they rule in your favor, you’ll need to open a new account with new email. Keep in mind cut off date is Sept 1. Even you don’t hear back soon enough still open an new account and start all over with submitting your documents.