Expert: Regan Shinski - 7/13/2010

Question
QUESTION: what can I do if my fourwheeler was paid off by my cosigner and he won't work out arrangements for me to pay to him back. I have been paying on this four wheeler for 4 plus years and still owed $3800.00 on it when the finance company raised the payments and I had no way of knowing because we had paperless billing and only got an email notification when it was due to be paid. I fell behind by 2 payments after the website wouldn't allow me to sign into pay it in May 2010 and my payments were not meeting the minimum payment due amount. The finance company went to my cosigner to repo the four wheeler and he wrote them a check for the amount owed on the four wheeler so that it would not go on his credit and he has the four wheeler in his possession. He wants the whole amount he paid out at once or nothing and he will just keep the four wheeler, I am willing to do what is necessary to keep the four wheeler instead of the cosigner keeping the four wheeler but there is no way I can come up with the whole amount at once but I can pay him in installments. My name is on the title too and we are in Missouri if that means anything.

ANSWER: Hi Amy:

I'm afraid you will likely not be pleased with my answer.  You have little recourse short of working something out (i.e. entering into a new contract) with the co-signer or suing.  This is strictly a civil matter.  It will come down to what your original terms were and your contract with the co-signer to pay.  This could be based on a verbal contract or what information you had access to.

Your best shot at winning would be if the co-signer limited your access to the account itself and a "reasonable" person would not think they are behind.  I will add that many courts may be a little sympathetic to your cause if you can show you have made the payments on time each month for four years prior to this incident.

However, a court may be alarmed at your statement that you fell behind two payments after the website wouldn't allow you to sign in.  Again, a "reasonable" person would know that a payment is due whether or not you can sign into a website.  So you have to be able to prove what efforts you made in this time period to make a payment or get hold of the finance company and/or co-signer.  If you cannot prove you did more than "oh well, I can't sign in so I didn't pay" you will likely lose.

It is an uphill battle but not impossible.  Your previous payment history will help if it is excellent but most courts will rule the co-signer had every right to take the unit back due to risk of his credit and now him being out $3800.  It may be best to get some new contract agreement with him/her if at all possible.

Good luck,
Regan

---------- FOLLOW-UP ----------

QUESTION: The problem with website to pay the payment was it would not let me sign in to pay it so I attempted to call the customer service center and they would not talk to me because the account was in his name and they said he had to give consent to them to allow me access.  This is something he has not done and will not do, why I am not sure since we have had no issues with this agreement until now after four years. I have proof that I have made the payments consistently for the last 4 plus years because I used my checking account to pay them online through debit card transactions and also by check, so I have the returned checks from the payments made by check. The main problem is he is not willing to work out another agreement and I don't blame him he now owns a four wheeler that someone else had almost paid off. Sorry, anyway I only have one other question, what difference does it make that my name is on the title or not? It is but it obviously does not help my case any.  Do you think I have a case and in your opinion is it worth pursuing further? I suppose that is two question and the last question is, is there anything I can do to make him let me have access to the account so that I can try to find out what happened to make them repossess the four wheeler and what our balance to pay off is because I don't believe a word my cosigner says, he is sad to say not trustworthy at all and I never should have gotten into this agreement with him but at the time it seemed like a good idea.

Thank you,
Amy

Answer
Hi Amy:

There is nothing you can do to "make" him give you access to the account short of a subpoena.  It's difficult for me to say if you have a solid case or not without knowing the entire evidence, which is not possible in this forum.  You may want to consult an attorney.  I do think it is looking into, assuming the unit is still valued at significantly more than the $3800.

The reality on this case is what was your contract?  Verbal contracts are allowed but written is better.  Again, the key will be payment history.  I think it reasonable to establish/backup you claim to a verbal contract that:

a.) The title is jointly in your name.
b.) You made payments online for four years.
c.) At some point you were not able to access the account.
d.) HE controlled the account access.  To make the change?
e.) You could not speak to creditor about other payment options.
f.) He repo'd shortly thereafter.

Now it would also be better if you can show efforts to contact him or pay him in this interim period.

The bottom line is you have to decide if you want to sue or drop it.  It appears you are not confident in any other options.  If you sue and lose, you are really only out court fees and any attorney fees you use.  I would strongly consider it if the unit is significantly valued at more than what is owed.

Good luck.  Please keep me advised at how it turns out.  Although obviously not a pleasant situation for you, it is interesting and I am hopeful it works out for you.

Regan