Repossession of Vehicle - Urgent advice needed please

[fightinghard]

We purchased a van through GMAC finance. As we had paid over a third before we defaulted, they had to take us to court for an order for repossession.

We came to an agreement in court but unfortunately due to the demise of our small business have been unable to stick to it (the van is in our personal names)

We have now had a visit from Close Assistance asking us to hand it over or they will clamp it and then tow it. We have decided just to let them take it.

However, as always with these things we have concerns that they will sell it for less at auction than is left on the finance & come after us for the balance.

I have just got the court order out - it states that GMAC can recover the van in default of the agreement made at court. However, it doesnt give them judgment for the balance owed - on that basis do they have any legal right to recover any other sums?

It also clearly says no sum except the instalments shall be payable by us during the suspension of the order - I am assuming on that basis they cant charge us admin fees etc

Sorry that was a bit long - they are coming back on Monday so any assistance would be appreciated

Thanx

[surfaceagentx20]

This sounds like terms of a consent order were agreed. Can you scan the consent order or put the main text up so it can be considered?

 

x20

[fightinghard]

It was a consent order:

 

"By consent:

It is adjudged that the defendant having failed to comply with the terms of a regulated hp agreement dated etc, the claimant do recover against the defendant the following goods, namely vehicle etc and do recover against the defendant the sum of £335 for costs to be added to the outstanding balance to be paid by the above instalments.

 

It is ordered that unless the defendant fulfil the conditions of the suspension the defendant do return the goods by 26th October 2007

 

And the operation of this order be suspended on condition that the unpaid balance of the hire purchase namely £6373.30 is paid to the claimant by one payment of £2137.87 by 5/10/07 & thereafter by instalments of £235.48 for every calendar month

 

And that the terms of the above mentioned agreement be modified in the following respects:

no sum except the above mentioned instalments shall be payable to the claimant in respect of the agreement during the suspension"

 

We paid the first big payment and 3 other monthly payments but havent paid anything since about March this year. We do now owe less than half the original loan.

 

thanx in anticipation

[fightinghard]

oh just as an aside - we called GMAC yesterday - there is about £3800 o/s on the vehicle - we offered to give them £2500 in full and final and they told us to get lost!

[surfaceagentx20]

It's a heck of a poor order.

 

In paragraph 1 of the order it does not define the outstanding balance as a sum of money. Nor is there mention of one or more instalments which might link to the phrase 'to be paid by the above instalments'. It would only make sense if use of the phrase 'the above instalments' was modified to read 'the below instalments' because the only reference to a defined instalment appears in paragraph 3.

 

Paragraph 3 of the order operates as a suspension of the order at paragraph 1 on the terms set out at paragraph 3. That would be a suspension of the obligation to [1] deliver up the van [2] pay £335.00 for costs and [3] pay the unidentified outstanding balance. For so long as these suspension terms are complied with the order remains unenforceable.

 

Paragrah 4 makes clear that no other sum is payable to the Claimant during the currency of a suspension.

 

So what to make of paragraph 2? Paragraph 2 says that if there is a breach of the suspension terms the van is to be returned. It makes no reference to an obligation to pay a sum of money in addition. It could easily have done so and the failure to do so coupled with the absenxce of a definition of the outstanding balance makes this somewhat unworkable as a money judgment from the Claimant's point of view.

 

Consent orders, whilst approved by the court, invariably embody terms upon which the parties have agreed. To that extent therefore, the order reflects their agreement. The cardinal starting point is that the parties intended what their words impart and their agreement should be construed accordingly.

 

If the parties have made an agreement which on its face is unworkable, vague, ambiguous and does not truly reflect the intentions of the parties, the court may construe it by looking at the background to it and its purpose in order to give it efficacy.

 

This order is absurd for the reasons I have stated. The question which then arises is: How does the court resolve the absurdity (assuming the Claimant wishes it to) and further by what method does the Claimasnt go about aquiring the court's determination of the question?

 

Consent orders determine the issue the subject of the case. Where a second issue arises consequent upon that determination (in this case the intention of the parties at the point they resolved the issue in the case) that issue can only be determined by the court.

 

Often, to enable any issue subsequently arising concerned with whether there has been compliance with the terms of the consent order, the parties will agree a proviso enabling the parties to return to court for the purpose of carrying the terms into effect.

 

No such proviso exists in this order. Accordingly the court will not be empowered to determine the issue within the context of the action which has now beed determined. Even if the order had enabled the parties to return to give effect to the order, in my view the court would still be helpless because it would be impossible to give effect in the terms which the Claimant would undoubtedly seek (ie define the outstanding balance) where to define the outstanding balance would require a trial if the parties were in disagreement as to what was intended.

 

Of course any case based upon an intention differing from the intention expressed by the Claimant will have to be a reasoned one. If the intention advanced in opposition to that promoted by the Claimant is itself absurd or not in keeping with the background and commercial purpose of the agremeent, the objection may be struck down early.

 

It's all a question of doing justice between the parties. Turning your offer down as flatly as appears to be the case may be treated as a little hasty were they to consider the ambiguity I percieveexists in the consent order.

For an insight on the question and the court's approach to ambiguity in consent orders and subsequent proceedings to decide the intention of the parties in reaching terms which disposed of an earlier action, see Scammell v Dicker [2005].

 

I haven't a clue if this is helpful at all because it leaves unresolved questions at this point in time. That's where the court comes in. In a practical sense you might use some or all of it to beat the oponent up into accepting less favourble terms and avoid more litigation.

 

x20

[fightinghard]

Thank you for that.

I do have some legal training and had seen an order before for repossession that clearly also gave judgment for the amount outstanding on the agreement - our one doesnt.

We just went into the court and said please suspend the order on the basis of one payment of £2137.87 and then £235.48 thereafter.

I am assuming that they can seize the van as we have not kept up the payments but they cant come after us for any balance as the court order doesnt say that?

Personally think they are a bit daft not accepting our offer because they will be unlikely to get the full value at auction and then they are left with a balance anyway plus the costs of the guy to come and collect it.

Thanks again

[cat100]

I'm no legal person,but what does it say as regards the credit agreement you signed for purchase of van.Couldn't GMAC use that to recover any balance owing?.Also on the agreement once you have paid a certain amount you can hand the vehicle back without GMAC coming back to you for more cash.

[darrenone439]

Thank you for that.

I do have some legal training and had seen an order before for repossession that clearly also gave judgment for the amount outstanding on the agreement - our one doesnt.

We just went into the court and said please suspend the order on the basis of one payment of £2137.87 and then £235.48 thereafter.

I am assuming that they can seize the van as we have not kept up the payments but they cant come after us for any balance as the court order doesnt say that?

Personally think they are a bit daft not accepting our offer because they will be unlikely to get the full value at auction and then they are left with a balance anyway plus the costs of the guy to come and collect it.

Thanks again

 

I have recently found out you can ask the court to make a veriation on the amount you pay against the suppened order (let them know things ahve changed and you cannot afford £235.48) it would then be upto the judge to acept this but it would be worth a try