Consent Order

[Enom]

Hello,

If a consent order is breached, but, the company did not act upon the breach and continued taking further payments automatically, does the company have a right to:

1. Demand possession of the vehicle based on the default that occurred, despite the account being restored back to good standing and kept up-to-date since 2 months previous.
2. Demand that I agree to additional costs beyond that was agreed in the consent order for such default, and unless agreed, demand possession of the vehicle.
3. In order to uplift a vehicle due to a breach of the consent order, does the company require going back to court to report such breach and request an order to repossess the vehicle, or is no further court action required to legally repossess the vehicle?

Thank you,

[Amethyst]

Re: Consent Order

The consent order was breached by missing one payment? When was the payment missed and when was the missed payment made up?

Would also really need to read the consent order.

[Enom]

Re: Consent Order

The consent order was breached by missing one payment? When was the payment missed and when was the missed payment made up?

Would also really need to read the consent order.

The recurring payment had failed on three occasions, first time on August 2013, but then September 2013 went through fine, then October 2013 and November 2013 failed. In December 2013 it went through fine again. The reasons for the payment failures are in slight part their fault, but mostly mine given its my responsibility to make sure payments are successful and I was naive enough to take the word of someone on phone on behalf of the claimant would occur regarding my billing, I got caught out and hold my hands up to that.

I was contacted by a repo firm mid December 2013 regarding the outstanding amounts, and promptly made payment for the outstanding amounts. Then January 2014 to date there have been no issues and payments have continued without a problem. Company wanted to impose a £250 charge for instructing this firm back in December, I advised this wasn't agreed in the consent order and that if they wanted to take the vehicle they should have stopped taking payments also but they continued to automatically charge my account through to 7 days prior to this repo firm contacting me. I also said they did not make any efforts to reach out to me about the potential issue except via an SMS mid August. After making the outstanding balance payment swiftly after being reached out by the repo firm via email, the claimant advised me that even though my payments are up to date, unless I agree to the charge to be added to my payment plan within 14 days they will collect my vehicle with a court bailiff. This was advised to me in April 2014 when the account was already up to date and 4 payment cycles had passed since the incident.

I decided at that stage to refer the case to the FOS and the claimant has agreed during the FOS investigation to hold off on any actions or require a response from me, so far the FOS have said it is not unreasonable for them to pass on the cost to me despite there not being an agreement for such charges. I advised the consent order states that each party does bear their own costs, but FOS states this only applies to the court case directly.

With regard to the consent order, in summary it states:

1. The claimaint recovers the vehicle from defendant subject to an HP wrongfully detained.
2. Return of goods be suspended on payment of sum £XXXX via 49 payments.
3. The amount is full and final settlement and satisfaction of claim against defendant.
4. In event of default the defendant do return the goods to the claimant.
5. There be no order as to costs save that each party do bear their own
6. This agreement should be confidential.

I've summarized the consent order, but if you would like the full version I will private message it so it doesn't get tracked down in google etc.

I've kept up to date on payments to this date and only 19 payments remain (+ the extra for the charges), and whilst the FOS are saying one thing, the debt advice line are telling me another and that I shouldn't be liable. I figured at this stage I'd ask the forum, because maybe I am barking up the wrong tree and I should simply take this as a harsh lesson learned.

Thanks in advance,

[Amethyst]

Re: Consent Order

The part in the consent order will refer to court costs only. They engaged the company before you made up the missed payments. Therefore I believe a court would find in their favour if this was forced back to court. Have you discussed with them spreading this charge over the remaining period of the payments? That might be one way of suiting both parties. After all the hassle you've been through and amount of money you have paid on this HP agreement it seems a shame to lose the car now. They could have just repossessed in September last year

I am assuming the consent order gave an approx. monthly date for the 49 payments

[Enom]

Re: Consent Order

Oh wow, I didn't even realize how serious it was. I was told something completely different by the debt advice line and have simply gone along under that assumption which is why I went through the FOS under their recommendation, I was about to submit an appeal but this may not be wise it seems. I may just reach out to the claimant and see if I can close out the account, I've saved up enough now and don't want to risk loosing the car. Is this possible to do under a monthly consent order to close it out early, is there a specific process I should do to protect myself?

The claimant has already agreed to spread this payment in the monthly payments should I accept the charge, but I don't want them holding this default over my head.

Thanks again for the information.

[Amethyst]

Re: Consent Order

Maybe you should send me the full consent order so I can check it. Admin@legalbeagles.info . As presumably debtline saw the full order?

[Amethyst]

Re: Consent Order

Also if you have the fos decision in writing that would be of use pls.

[Enom]

Re: Consent Order

Thank you - I've emailed both across now.

[Enom]

Re: Consent Order

Sorry I missed your question, no I didn't send them the documents, I spoke over the phone and read out the terms written in the consent order. They said that it would also be dependent on the credit agreement terms as well, and that you can appeal the consent order being enforced proving payments have since been kept up to date and being accepted by the firm (this was with regard to taking the vehicle even though payments are now up to date).

[Amethyst]

Re: Consent Order

Thanks for sending those over , the consent order is as I expected so that's all fine. I also completely agree with FOS's decision, although I may have been inclined to give the customer service operator you spoke to a smack on the wrist, as I can see why you got into that position. Sorry to disagree with Debt Advice Line. I do agree about the terms in the agreement and there will be a term about reasonable expenses incurred for recovery in case of default or repossession, inch legal action and recovery. So overall I think they have acted quite reasonably, in doing the consent order in the first place as they could have taken the car at that point under court order and charged you the difference in the ridiculously lo auction price ad the HP agreement, and you'd have had no car..... so I reckon you should take the offer to spread the costs over the remaining period of payment.

[Enom]

Re: Consent Order

Thanks so much for the input! I really appreciate it, next time (hopefully I won't face anything like this again for a very long time mind!) I'll come straight to the forums instead. I will reach out to the claimant on Monday and will accept the FOS' decision.

[Amethyst]

Re: Consent Order

Please let us know how you get on. And if you have any problems we're always about xx

[Tools]

Re: Consent Order

Hi Enom, Amethyst has asked me for a second opinion on her guidance to you just as a safeguard.

Having looked at the consent order and the FOS decision my own opinion is as follows.

You seem to have done very well to get the original consent order, good work on your part.

Due to your financial circumstances at the time you missed 3 payments relating to that order, because of which the firm (within their rights) attempted repossession of the vehicle but were unsuccessful, incurring costs (hire of uplift vehicle & operator fee) which are actually around the going rate and not disproportionate.

You contested these fees based on the wording in the consent order.

FOS has reviewed your complaint and in my opinion has been thorough in their investigation, although not the outcome you wanted, I do agree with their decision.

I agree with what Amethyst has advised, speak with the firm and offer to make payment of the additional fee. If, as you say you are able to repay the outstanding amount in full, I would suggest you first speak with the firm and ask for a written full and final settlement figure to satisfy the account along with an expiration date of that amount just in case.

Once you have received the amount and if you are willing to settle in full, contact them again and ask for written assurance that once paid no further repossession action or additional amounts will be due and that they will mark the account as settled (on your credit file as well)

[Tools]

Re: Consent Order

Also, as a courtesy, I would write to the FOS and thank them for their time investigating your complaint, noting that you agree with their decision and your intentions to settle with the firm. You never know when you may need them again and it is nice to get positive feedback once in a while.

[Enom]

Re: Consent Order

Thanks Tools for your feedback also - I feel assured this is the correct path and I will reach out to the firm on Monday asking for awritten full and final settlement figure to satisfy the account along with an expiration date of that amount.

I will also reach out to the FOS also to let them know the route I'm taking, I had originally reached out to them with the intention to appeal given what I had been advised previously, but I will revoke that and let them know I accept their decision.

Thanks so much to you both for your time this evening, it's truly appreciated.