Guest Editorial
Yes that this correct, “NO HOLD HARMLESS” !
Back in early March of this year Primeritus introduced a new contract to this industry that wasn’t even worth using for toilet paper. It contained language that posed great security concerns to an agent, allowing anyone to forcefully enter your yard, $250 cleaning fee for not removing trash from a car, charges for audits, and the list goes on….
FLACARS published a 16 question survey to agents nationwide and the response was overwhelming with 90% of those responding stated they would NOT sign the contract as presented.
On the Repoindustry.com website there was also a poll where 99% of those who responded also indicated they would NOT sign the contract as presented.
Well at the RSIG/Allied conference held in Fort Lauderdale this year the board members at FLACARS sat down with Keith Bagget (as of 08/21/2013 Keith is no longer with Primeritus) and Chris Oskiera, Senior management with Primeritus and discussed each and every point of contention with the new contract. Both gentleman were interested in hearing what we had to say and made the commitment to address all these issues as presented within the survey.
As time passed, several more discussions were held with the final outcome being that it was the position of Primeritus to NOT change the contract globally for all agents but to only address the contract of those persons who would stand up and demand a change. So in other words, if you did not stand up and demand a change, if you signed the BAD contract as it was presented, then you might have put yourself in harms way in a big way.
As a board memeber for FLACARS, we were successful in getting several provisions removed from our contract because we continued dialogue and persisited for change but again the response from Primeritus was that these changes would only be for OUR contract and not the industry as a whole. They clearly refused to make global changes!
We were able to have the entire section 3 which allowed access to your yard at any time by any person the Primeritus would send removed entirely from the contract.
The $75 charge for the audit was also removed along with the need for background checks for FLorida Licensed Recovery Agents. This was because they agreed that since the State of Florida already performed a background check a second check would not be necessary. There were also some other minor changes made to the contract.
In the end, the straw that broke the camel’s back, is the fact that Primeritus has clearly refused to include ANY type of language that offers an agent any type of Hold Harmless or Indemnification in the contract that provides for any type of contractual responsibility on the part of Primeritus to respond to and provide for any loss, damage or legal liability suffered by an agent as a result of an omission or act caused by, intentional or not, by Primeritus, its employees, agents or clients.
What is a hold harmless you might ask?
A provision in an agreement under which one or both parties agree not to hold the other party responsible for any loss, damage, or legal liability.
In short, if Primeritus makes a mistake on an order and you suffer damages or loss because of this mistake then they would be contractually obligated to respond. Primeritus said NO, we will not do this in our contract!
What is an Indemnity clause?
A provision in a contract under which one party (or both parties) commit to compensate the other (or each other) for any harm, liability, or loss arising out of the contract.
Primeritus said “NO, we will not do this in our contract”!
If you read their contract you will see that you will agree to do this for them, if you make a mistake then you will be contractually obligated to respond and compensate them for any loss. These losses can include their attorney fees, monies paid out to debtors, Lienholders legal fees, monies lost by lienholder or Primeritus on wages paid to employees involved in defending a claim, court fines or sanctions no matter the cost…you name it , and you agreed to indemnify them, if you signed the contract that is.
Well the question is then raised, why am I the agent also not protected? Why does Primeritus REFUSE to provide me with any sort of protection. Must I first suffer a loss and then hire an attorney and then sue Primeritus and / or the lienholder in order to invoke indemnification?
What if I receive a bad order from Primeritus and I get sued, is there any legal requirement for them to pick up the tab?
What happens if I hire an attorney? Is Primeritus contractually bound to fully reimburse me for my losses or can they argue against me that I did it wrong or paid too much and then take a position of fighting against me?
The bottom line is this, if you refuse to protect me for actions taken based on your wrongful instructions or direction then why should I even consider working for you?
I urge you all to re-read your contract with Primeritus and ask yourself two questions.
Can I afford the risk of NOT being protected?
Is Primeritus contractually obligated to protect me?
If you answered NO to both questions then I urge you to put them on notice and consider cancelling your contract with them. Send them a clear message that as a professional agent providing services we without question require to be held harmless from your wrongful actions and expect indemnification if we suffer loss because of your mistakes.
The time is long overdue to regain control of this industry folks, stand up and do what is right not only for your business but also this industry!
If you would like to reach me my contact info is on the FLACARS website.
Respectfully,
Ed Wolmers
Board Member
FLACARS
I am glad to see I’m not alone in this. The only work I’ve done for Primeritus was DRN LPR2.0 accounts and that was actually through USA Recovery (Recently bought out by Primeritus). When they sent the contract, I saw several problems with it and spoke to a vendor relations person who basically just told me why the provisions were there and finally said that I should change what I didn’t agree with and send it in. I altered the hold harmless section, deleted the fines section and one other section, changed the LPR rate to the rate I had negotiated with USA Recovery and sent it in stating I was not interested in doing any other work for them than the LPR 2.0 accounts I ran across.
1 month and 6 phone calls later where I was told in each that “someone would be calling me back very shortly,” I have received no response. Their contract as written was a joke. I’m sure they are counting on agents not reading the contract but just signing away in order to get the work. I would also never work LPR accounts for the fees they offer not to mention regular accounts.
WHO? I repeat WHO? in their right mind would sign a contract that basically says ” IF I MAKE A MISTAKE YOU HAVE TO PAY FOR IT”. No one with something to lose, anyone with nothing to lose. That is who will be working for Primeritus under this type of contract. Untrained, unlicensed, non bonded and noncompliant Repo Rangers who operate out of their trucks with nothing to lose. If a lawsuit is filed they will just pack up instead of stand up and move on changing their name and assuming no liability. Who gets stuck in that scenario, the CONSUMER. I do not think the Consumer Financial Protection Bureau would smile on this practice.