zhanzhibar vs Amex/AIC/Newman/ Brachers Solicitors

[angel_1]

hello zhanzhibar

 

i was referred to this thread from another thread where creditcardmug gave your thread,

 

wishing you lots of luck, and going to read the read in full,, im in battle with alliance and leicester got something with a tick, but it does not look like a clear copy of what may have been done online, i know the tick box is possibly correct by other threads mentions, but im still thinking surely terms and conditions and the company should be able to demostrate further online activity, how and when done to what ip address etc, sorry if already on your thread but have to go and pick up family now but will read in full laters

 

good luck

 

angel x

 

ps thanks again CCM

[steven4064]

After the electronic communication act 2000, CCA 1974 E-comm Order 2004, CCA 1974 E-agreement order 2004, for on-line credit, what should an executable and enforceable agreement be like?

There is an example at the bottom of this post http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html#post1894949

[angel_1]

many thanks again for refreshing me - of course its on this thread, got so many getting dizzy,,,lol

 

righto so something that looks like in parts as a cut and paste of the possible sections may not be fully executed?? am awaiting on the sars info now so will then compare again

 

hope this is of help to you too zhanzhibar

 

laters angel x

[1mansquest]

zhanzhibar, I have an identical agreement which I'm currently challenging.

 

In a recent letter sent to me, they state ..."the original terms and conditions are no longer maintained on our system, but the set provided is substantively the same as the original and should be suitable for your purposes".

 

These tend to be generic letters, so if you have the same wording, I would consider raising the fact that without the original terms and conditions the contract is unenforceable, despite an electronic signature being identifiable to you.

[zhanzhibar]

Hi all,

 

I have drafted my witness stament based on 4 key things:

1) default notice not being 14 days and not following Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983

2) copy of default notice from Claimant not the same as my original

3) My ip address is not the same as stated by them

4) signature and prescribed terms not in the same document therefore not compliance to CCA 1974.

 

I would really appreciate it if any of you would give some advice on this extract of my WS:

 

1. After nearly 9 months since my letter requesting information under section 78 of the Consumer Credit Act 1974, on 18th March 2008, I received a big envelope from Claimant (Exhibit U). The contents in the envelope are:

a) a letter from Claimant informing me that:

(i) the Consumer Credit Act 1974 (Electronic Agreements) Order 2004 and the Consumer Credit Act 1974 (Electronic Communications) Order 2004 amended the old Consumer Credit Act 1974 to allow consumer credit agreement to be concluded electronically.

(ii) for internet application, electronic signature is required and that the IP address stated in the letter is my electronic signature

(iii) by providing this information together with a copy of screen print of collated information allegedly provided by me and an unsigned terms and conditions, Claimant has fulfilled their obligation under section 78 of the Consumer Credit Act 1974 providing me with a true and executed copy of the agreement.

b) a copy of screen print of collated information allegedly provided by me

c) an unsigned copy of the agreement

2. Consequently I contend that as the copy of the document provided by the Claimant which is entitled “Amex Canada Intranet - Card Holder Information”, and which can be clearly shown to be a separate document to the one entitled “Credit Agreement Regulated by the Consumer Credit Act 1974”, cannot be held to be an agreement as the Claimant claims, as neither contain all of the necessary prescribed terms that I have previously mentioned in my Defence.

3. By compliance with section 78 of the Consumer Credit Act 1974 as noted in 24 above, the information sent to me must have also complied with section 61 of the Consumer Credit Agreement 1974 and to comply with this section of the Act which refers to the signing of an agreement (not an application), a document must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed.

4. The regulations I refer to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it must embody within the agreement, the prescribed terms laid out in the SI1983/1553 without the prescribed terms the agreement does not conform to section 60(1) 1974 and therefore cannot be properly executed as described in section 61(1) CCA 1974.

5. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

(a)Number of repayments;

(b)Amount of repayments;

©Frequency and timing of repayments;

(d)Dates of repayments;

(e)The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

6. Now nowhere on the internet application form that was sent to me is there any reference to these terms. Note 2, 3 and 4 above means that the prescribed terms and signature must be contained within the agreement and not separately.

7. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

8. I would also like to refer to the judgment ofTUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299;

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

 

"In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1

 

9. Furthermore, under the Consumer Credit Act 1974 (Electronic Communications) Order 2004 section 4 (2) (b) –

“ where an agreement is intended to be concluded by the use of an electronic communication nothing in this Regulation shall prohibit the inclusion in the signature box of information about the process or means of providing, communicating or verifying the signature to be made by the debtor or hirer”

Now nowhere on the copy of the agreement that was sent to me is there any reference to the conclusion of the agreement using electronic communication.

10. The Claimant claims that the IP address stated on the letter sent to me is my electronic signature. I attached here a print screen from my computer showing that my IP address is different than that stated by the Claimant. (exhibit V )

 

11. Chapter 7 of the Electronic Communication Act 2000 Part II Section 7 (1):-

 

Electronic signatures and related certificates

(1) In any legal proceedings–

(a) an electronic signature incorporated into or logically associated with a particular electronic communication or particular electronic data, and

(b) the certification by any person of such a signature,

shall each be admissible in evidence in relation to any question as to the authenticity of the communication or data or as to the integrity of the communication or data.

(2) For the purposes of this section an electronic signature is so much of anything in electronic form as–

(a) is incorporated into or otherwise logically associated with any electronic communication or electronic data; and

(b) purports to be so incorporated or associated for the purpose of being used in establishing the authenticity of the communication or data, the integrity of the communication or data, or both.

(3) For the purposes of this section an electronic signature incorporated into or associated with a particular electronic communication or particular electronic data is certified by any person if that person (whether before or after the making of the communication) has made a statement confirming that–

(a) the signature,

(b) a means of producing, communicating or verifying the signature, or

© a procedure applied to the signature,

is (either alone or in combination with other factors) a valid means of establishing the authenticity of the communication or data, the integrity of the communication or data, or both.

 

Not withstanding the Act above, I therefore put the Claimant to provide a valid certification as to the authenticity of the IP address and its alleged reference to me.

 

I can't seem to find anything like this anywhere else in this forum so have put together something from all the info that was given to me in this thread. So cwould really apprecaite it if any of you could point out to me where I have not make my points across clearly. Thanks.

 

 

Zhan

Edited March 8, 2009 by zhanzhibar
Chage 32,33 & 34 in note 6 to 2,3 & 4

[steven4064]

Item 3 is not correct. The 1983 regulations (your point 4) allow a very minimal document to be sent in reply to a request under s78(1) and there is no requirement for it to comply with s61. In fact, the regs specifically say that the signature can be omitted, which, in itself, means s61 is not complied with.

 

It all comes down to the fact that

 

1) a properly executed agreement

2) a true copy of an executed agreement

3) an enforceable agreement

 

are 3 entirly different things - related, but different. So what they sent is a true copy (yes, really) but is not an actual copy of a properly exeuted agreement. It is enforceable (s127(3)) if it contains your signature and the prescribed terms (schedule 6 of the CC(Agreements) Regs 1983).

 

In the case of an agreement executed electronically, the same applies except that the signature is electronic and therefore subject to the stuff in your points 9-11. IMHO, wrong IP address means no signature (at least, not yours)

 

Of course, IP addresses change. So the onus is on them to prove that it was your IP adresss when you 'signed' the agreement. You should "put them to strict proof thereof"

[Monty2007]

2) copy of default notice from Claimant not the same as my original

 

Hi Zhan

 

Can you elaborate further on this point. I am in the same position with Amex. they have reconstructed the DN which has >12 differences to the original and 3 substantive ones:

 

1. Dates are different

2. Amounts to remedy are different

3. Clauses are different numbers to the purported T&C's

 

Regards

 

Monty

[creditcardmug]

Hi Zhan

 

Can you elaborate further on this point. I am in the same position with Amex. they have reconstructed the DN which has >12 differences to the original and 3 substantive ones:

 

1. Dates are different

2. Amounts to remedy are different

3. Clauses are different numbers to the purported T&C's

 

Regards

 

Monty

 

Did you get a letter of termination, following the 1st DN, and before the reconstructed one?

[Monty2007]

Did you get a letter of termination, following the 1st DN, and before the reconstructed one?

 

Hi CCM

 

No notice of termination at all.

 

The original DN was served in Nov 2005. I made my S78(1) request in July 2007. I then stopped paying. They failed to fulfill my S78(1) request since they only provided an application form (no statement of account etc) etc.

 

I have no idea why they did not terminate?

 

I was then issued with a writ last year and I am currently defending.

[zhanzhibar]

Hi Steven

Thanks for the comment below but I have a a few queries if you don't mind.

 

Item 3 is not correct. The 1983 regulations (your point 4) allow a very minimal document to be sent in reply to a request under s78(1) and there is no requirement for it to comply with s61. In fact, the regs specifically say that the signature can be omitted, which, in itself, means s61 is not complied with.

 

It all comes down to the fact that

 

1) a properly executed agreement

2) a true copy of an executed agreement

3) an enforceable agreement

 

are 3 entirly different things - related, but different. So what they sent is a true copy (yes, really) but is not an actual copy of a properly exeuted agreement. Which document are you referring to as the true copyof the executed agreement? Is it the Amex Intranet Application form or is it the copy of the terms & conditions of Amex. Sorry if ask stupid question but am trying to understand It is enforceable (s127(3)) if it contains your signature and the prescribed terms (schedule 6 of the CC(Agreements) Regs 1983). So am I right in my note 6 that the signature AND the prescribed terms have to be in the same document otherwise it is not enforceable under s127(3).

This is where I got muddled up. If the signature AND the prescribed terms have to be in the same document/agreement, then how does the IP address stated in a different letter can be my signature...I'm all confused now.

Or if i were to look at it from a different angle, there is a "E" next to the "sign:" on the bottom middle col of 1st page of the intranet application form. Assuming that the "E" is my signature then they can refer to the IP address? ......

 

 

In the case of an agreement executed electronically, the same applies except that the signature is electronic and therefore subject to the stuff in your points 9-11. IMHO, wrong IP address means no signature (at least, not yours)

 

Of course, IP addresses change. So the onus is on them to prove that it was your IP adresss when you 'signed' the agreement. You should "put them to strict proof thereof"

 

Zhan

[steven4064]

Hi Steven

Thanks for the comment below but I have a a few queries if you don't mind.

 

 

 

Zhan

Some comments on your comments/questions

Item 3 is not correct. The 1983 regulations (your point 4) allow a very minimal document to be sent in reply to a request under s78(1) and there is no requirement for it to comply with s61. In fact, the regs specifically say that the signature can be omitted, which, in itself, means s61 is not complied with.

 

It all comes down to the fact that

 

1) a properly executed agreement

2) a true copy of an executed agreement

3) an enforceable agreement

 

are 3 entirly different things - related, but different. So what they sent is a true copy (yes, really) but is not an actual copy of a properly exeuted agreement. Which document are you referring to as the true copyof the executed agreement? Is it the Amex Intranet Application form or is it the copy of the terms & conditions of Amex. Sorry if ask stupid question but am trying to understand Both together prooperly constitute a true copy (sometimes companies try to get away with one or the other) It is enforceable (s127(3)) if it contains your signature and the prescribed terms (schedule 6 of the CC(Agreements) Regs 1983). So am I right in my note 6 that the signature AND the prescribed terms have to be in the same document otherwise it is not enforceable under s127(3). Yes

 

This is where I got muddled up. If the signature AND the prescribed terms have to be in the same document/agreement, then how does the IP address stated in a different letter can be my signature...I'm all confused now. Electronic agreements are slightly different. A true copy would just be a reconstructed screen image of the agreement you 'signed'. To be enforceable, they must also provide evidence that you signed it - usually in the form of you IP address. having said that, the situation about what would constitite an enforceable agreemen is a bit confused

 

Or if i were to look at it from a different angle, there is a "E" next to the "sign:" on the bottom middle col of 1st page of the intranet application form. Assuming that the "E" is my signature then they can refer to the IP address? ...... Who knows

 

 

In the case of an agreement executed electronically, the same applies except that the signature is electronic and therefore subject to the stuff in your points 9-11. IMHO, wrong IP address means no signature (at least, not yours)

 

Of course, IP addresses change. So the onus is on them to prove that it was your IP adresss when you 'signed' the agreement. You should "put them to strict proof thereof"

BTW, I am trying to find out a bit more about linking IP addresses to debtors. I would like to knwo, in particular, how long ISPs keep records of which customer uses which IP address.

 

I have several specific questions too:

 

1. An IP address is usually assigned to a house (ie to a router). How do they know who in the house 'signed' the agreement?

 

(This is especailly of interest since they usually won't talk about another persons debts, even in the same house, beacsue of the DPA)

 

2. What happens if you 'sign' the agreement in a public library or internet cafe?

 

What happens when you change your ISP?

 

If anyone has any insights into these questions - please let me know.

[zhanzhibar]

Hi Zhan

 

Can you elaborate further on this point. I am in the same position with Amex. they have reconstructed the DN which has >12 differences to the original and 3 substantive ones:

 

1. Dates are different

2. Amounts to remedy are different

3. Clauses are different numbers to the purported T&C's

 

Regards

 

Monty

 

Hi Monty, on mine the only difference between the 2 DN is the date

[zhanzhibar]

Hi all,

 

After incorporating Steven's comments from earlier post, attached is the full 1st draft of my WS.

 

I also attached my IP address

 

Any advice and comments are much appreciated.

 

Thanks

 

Zhan

Amex Witness Statement Draft for CAG .doc

Edited March 10, 2009 by zhanzhibar
Accept changes in word document & re-post

[Monty2007]

Hi all,

 

After incorporating Steven's comments from earlier post, attached is the full 1st draft of my WS.

 

I also attached my IP address

 

Any advice and comments are much appreciated.

 

Thanks

 

Zhan

 

Dear Zhan

 

I would not post up your IP address and details, this is personal information. Best be safe.

[zhanzhibar]

Dear Zhan

 

I would not post up your IP address and details, this is personal information. Best be safe.

 

Thanks for the advice Monty. IP address taken off from previous post

[the_shadow]

Thanks for the advice Monty. IP address taken off from previous post

 

Doc has track changes enabled in it, so all edited info is still in the doc... please accept all changes and post up again

 

PmW

[the_shadow]

Ok, cant speak for the rest of the doc as I'm not into legal speak:D

 

However regarding the Default notice from 2007, 18th March 2007 was a Sunday so if they sent it Friday or Sat its not deemed served until TWO working days after postage.. so Mon + Tues are discounted from the 14 days allowed to remedy the default.

 

So date remedy was required is the 3rd April.

 

Hope this helps!

 

1. Interpretation Act 1978, Section 7

 

This states:-

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

[zhanzhibar]

Ok, cant speak for the rest of the doc as I'm not into legal speak:D

 

However regarding the Default notice from 2007, 18th March 2007 was a Sunday so if they sent it Friday or Sat its not deemed served until TWO working days after postage.. so Mon + Tues are discounted from the 14 days allowed to remedy the default.

 

So date remedy was required is the 3rd April.

 

Hope this helps!

 

 

Thank you for this . Will have a think how to incorporate this in my WS.

 

Cheers.

 

Zhan

[bazaar]

I would also be looking at putting them to strict proof that the IP relates to you. It is very difficult to prove ( If at all by them ) because its an art.

For example, if you ping an address, you'll get a response if connected, but you'll not get web page references etc.

I use a router. My ISP can only see that router. They cannot get my computer ( Linux). So, IMHO strict proof that it was you, at that time, on that particular web page, would be quite a good demand to make of them. Thats why you shouldnt give them the info they would want.

[zhanzhibar]

Thats why you shouldnt give them the info they would want.

 

Hi Bazaar,

 

Do you mean not to include it when I submit my Witness Statement and just ask them to strict proof?

[steven4064]

I spoke with the security part of my ISP today concerning records they keep of IP addresses allocated to customers.

 

We know that the IP address that any given person has is sunject to change - it is allocated dynamically by the ISP, changes if you change ISP or even if you change your router.

 

He told me that under the Data Protection Act 1998 they are only allowed to keep such information for as long as it is needed (by them). In other words, they take no account of whether someone else (like a credity card company) may need the information. Even if they did keep it, a credit card company would only be able to get it with a court order and they would be unlikely to be granted one since it wouldn't be a criminal matter.

 

So, as we thought, using IP addresses as a means of identification is absolutely useless.

[bazaar]

Hi Bazaar,

 

Do you mean not to include it when I submit my Witness Statement and just ask them to strict proof?

 

Hi Zhans, I would not give them anything they could use. They are the ones saying you clicked on this or that, so put them to strict proof.

I dont think ISP's keep data that records who used which IP address and when for longer than about 2 years. ( I may well be wrong ). But basically, the IP addresses ( Unless youve asked for a Static address ) come from a 'pool' they are re-assigned.

If you look up an AOL account you'll get an address in Virginia USA for instance.

[1mansquest]

IP addresses are either 'dynamic' or 'static', and public or private. Most people accessing the internet will be using a public dynamic address, which is renewed each time they connect.

 

However, it can depend on the ISP. Some ISP's have a range of IP addresses allocated to them within the scope of their DNS (Domain Name Server). They can allocate a particular IP address within that scope to a particular customer. That doesn't mean however that it will never change, as ISP's can change their DNS servers, thus acquiring a new range of IP addresses to distribute to new and existing customers.

 

As this is new legal ground, it could be argued that an IP address is indicative of an association with a physical address, but not necessarily a 'living' person (as Steven pointed out when using 'public services').It would be necessary to further prove that it was 'you' at the end of the computer that agreed to the terms and conditions, 'you' whom checked the signature box.

 

Ultimately, the ISP must provide all log data pertaining to your 'history' and prove that a dynamic IP address was indeed yours, by associating it to you by date/time (as appropriate), physical address, name and preferably machine access code. If you maintained the account online you might also ask via a S.A.R for details pertaining to cookie data, proving when you accessed the account by date/time.

 

With additional issues such as IP Masking, Proxy Servers and other means of disguise thrown into the melting pot, its clearly an area open to some conjecture.

 

The very nature of challenging this aspect of the agreement will likely leave them and the judge dizzy.

[the_shadow]

IP addresses are either 'dynamic' or 'static', and public or private. Most people accessing the internet will be using a public dynamic address, which is renewed each time they connect.

 

However, it can depend on the ISP. Some ISP's have a range of IP addresses allocated to them within the scope of their DNS (Domain Name Server). They can allocate a particular IP address within that scope to a particular customer. That doesn't mean however that it will never change, as ISP's can change their DNS servers, thus acquiring a new range of IP addresses to distribute to new and existing customers.

 

As this is new legal ground, it could be argued that an IP address is indicative of an association with a physical address, but not necessarily a 'living' person (as Steven pointed out when using 'public services').It would be necessary to further prove that it was 'you' at the end of the computer that agreed to the terms and conditions, 'you' whom checked the signature box.

 

Ultimately, the ISP must provide all log data pertaining to your 'history' and prove that a dynamic IP address was indeed yours, by associating it to you by date/time (as appropriate), physical address, name and preferably machine access code. If you maintained the account online you might also ask via a S.A.R for details pertaining to cookie data, proving when you accessed the account by date/time.

 

With additional issues such as IP Masking, Proxy Servers and other means of disguise thrown into the melting pot, its clearly an area open to some conjecture.

 

The very nature of challenging this aspect of the agreement will likely leave them and the judge dizzy.

 

Playing devils advocate here, all the above is correct....... however if the judge only has to work on the probabilities rather than the certainties surely he'll just assume that anyone who has entered in a large amount of sensitive data that realistically can only be known by a family member or the defendent himself will have been entered-in in all likeliness by the defendant and therefore the IP address wont matter as much as were thinking????

 

PmW

[bazaar]

Good point PMW, but depending on how the game is played out, if there is some doubt, then that is a weak link. Even if I knew I was going to lose in court, I would definitely throw this into the pot, because at the end of the day, the judge will only order an affordable payment at the worst. At best, the other side mess up in some way and the case is thrown out. Zhanzibar, has an option to put this into defence, because its to prove that he/ she has a signed agreement. ( electronic or not). If the other side get flustered in court, the judge may well order them to come up with some concrete evidence that proves a certain mouse click somewhere had zhanzibars hand on it.