mbna, help please,

[IdaInFife]

As you took this our after 31/12/2004 they do not need to send anything to sign

 

The Consumer Credit Act 1974 (Electronic Communications) Order 2004

 

unfortunaltey there isn't a lot of info on what is required except for the 'tick box' on what you have

 

It looks as tho they have sent a print out of when you signed online and that is what they neesd to supply although I didnlt check every link you posted

 

 

ida x

[steven4064]

You are right minnimes. As it was started after 2004, a tick in the box online counts as a valid signature under 2004 regulations Consumer Credit (Electronic Communications) REgulations 2004) . It has the prescribed terms at the beggining so it is a properly executed agreement and is enforceable.

[Ragtaggeorge]

IMHO still not enforceable the function of the original document is to prove that it was the original document. If you are going to substitute a tick for a signature then you are going to have to tie it to a particular IP address and network traffic with a NIST auditable time stamp. Even so you could have been a victim of a wireless hijack. Where does it stop...a judge might enforce it but that does not mean there is any real proof the document is the original. Has anyone taken a case to the higher courts?

 

I would send them a letter pointing out the provisions of the act:

'" 176A Electronic transmission of documents

(1) A document is transmitted in accordance with this subsection if-

 

• (a) the person to whom it is transmitted agrees that it may be delivered to him by being transmitted to a particular electronic address in a particular electronic form,
   
  (b) it is transmitted to that address in that form, and
   
  © the form in which the document is transmitted is such that any information in the document which is addressed to the person to whom the document is transmitted is capable of being stored for future reference for an appropriate period in a way which allows the information to be reproduced without change.
  

(2) A document transmitted in accordance with subsection (1) shall, unless the contrary is proved, be treated for the purposes of this Act, except section 69, as having been delivered on the working day immediately following the day on which it is transmitted.

 

(3) In this section, "electronic address" includes any number or address used for the purposes of receiving electronic communications."

and asking for details of the particular electronic address and the format of the data they claim was delivered to this address.

ANY LAWYER TYPES PLEASE COMMENT

Edited December 20, 2008 by Ragtaggeorge
Read 176 (a) and clarity

[Ragtaggeorge]

most home IP numbers wre until recently allocated randomly via DHCP and so to show a connection between you and a specific IP address the creditor would require the IP logs of the ISP for the particular day and subnet which you were part of at the time of transmission. Even so this in no way shows a secure token of anytype was exchanged to establish the connection before the data (document) was passed. It would not stand up in court. quite apart from the fact that your next door neighbour could be using your wireless internet connection to apply for credit cards in your name...

[minnimes]

they also didnt send me the original terms and conditions, they only go up to point 3! this is also my argument, how do i know it is my docment? it could be a template which they just add some ones name and address to. i think they know theres somethin wrong with it as they are now concidering taking my reduced payments, they've always said no before.

[Ragtaggeorge]

The last thing they want is a case like this to end up in court and risk all the electronic agreements being ruled unenforceable by case law. Ask for details of the particular electronic address and the format of the data they claim was delivered to this address. They still have to prove the copy provided is a true copy of the original when you ask for it under the original CCAct 1974. Point out they are still in default as they have not provided a copy that can be shown to be a true copy and the account remains in dispute as a result. If they do not provide the information and subsequently start court proceedings you could make a complaint to the OFT, which would be a mark against their license. Also you have the right to disclosure of all documents they are going to use to prove their case before the court date - so you have nothing to lose. See what they come back with. Also ask someone with more green after their monicker for an opinion - I am just a newbie myself.

[minnimes]

yeah, i tried asking and just got told its enforceable.

im willing to give it a go, just worried i'll get a ccj, but my credit file is ruined now any way so ive not got much to loose, dont suppose you could write me a letter to send them with all your points in? im no good at letter writing, im also sick of them NEVER going through security with me.

[jobmid]

yeah, i tried asking and just got told its enforceable.

im willing to give it a go, just worried i'll get a ccj, but my credit file is ruined now any way so ive not got much to loose, dont suppose you could write me a letter to send them with all your points in? im no good at letter writing, im also sick of them NEVER going through security with me.

 

they always say its enforcable its just more bluff and spin i would reply to them with the replay template

[Ragtaggeorge]

Wait for a more experienced CAGER to express an opinion. I do not know anything about court procedure. It might be that the lower court would enforce the agreement and leave it up to you to appeal, which might cost a fortune. I cold send you a draft general letter citing most of the arguments used in letters I have seen posted on this site used as response to non compliance for you to edit out passages that are not relevant. There are good fully formed letters you could use in the templates section that might be a better option. Just get a standard reply out to them and wait for their move. They will have to provide you with all their documentation as soon as they file at the court. you can then get back to CAG with the scans and get advice on the best options. No CCJ if you settle before court in any case and they would accept a better deal the further you go down the line just to avoid their court costs. Don't we all hate letter writing that is what they rely on.

[steven4064]

I gave my opinion in post #27.

 

We have discussed this at length on another thread. The regulations say that a tick on an electronic form counts as a signature. Everything george says is right - they need to keep a record of IP addresses, but yes you can change your IP address, yes someone else could get credit on your behalf.

 

It has not been thought through adequately, but it is the law ATM.

 

As things stand minimmes' agreement is enforceable.

[minnimes]

so theres no point me challenging them? after all they havent sent full terms and conditions, or am i just going to be wasting my time. thanks for your help.

[steven4064]

To be enforceable, it doesn't have to have the full T&Cs, only the prescribed terms - credit limit (or that there is not one), means of deriving minimum repayments and interest rate.

 

Personally, I don't think you will get very far challenging it. I think the whole system does need to be challenged (IP addresses and all that stuff) but I think we need to think how to go about that.

 

You could go to court, lose and then appeal - that might do it

[minnimes]

im not sure im brave enough to go to court, im pretty new to all this.

[Ragtaggeorge]

Feeling that I left you a bit high and dry this would be my strategy were I you.

Your strongest point is that you are both disabled and so on means tested benefits.

 

What does this mean when the case comes to court or you decide to settle once you have received the court papers:

You will not have to pay anymore than a token ammount as you effectively have no surplus income - so you offer £1 a month and the court will force them to accept it or they will accept knowing a court will not go for a charging order on your house the first time the debt comes to court.

Your other option is to accept a charging order on the property but go for a 60 to 80% reduction in the ammount for agreeing to the charging order.

In either case once you agree to a binding agreement after court papers have been issued the interest rate on the ammount owing will be a maximum of the court interest rate or if you agree to a charging order will be the fixed ammount you negotiate.

[minnimes]

at the moment im trying to get them to accept £25 a mnth, they're refusing although i still pay them and they do take the payment. ive sent them copies of our income/out goings,as drawn up by cccs, and still they say no to my offer. they know i cant afford to pay more and i think im being reasonable given our circumstances. i dont want to go down the charging order route because my hubby sustained an injury at work due them not maintaining their equipment,so he is claiming against the company and hope to negotiate a settlement once its been to court. im just waiting for them to say their taking me to court. im thinking a judge would favor me as im doing the best i can. i may also try going down the irresponsible lending route as all my income was benefits and they used my hubby's wages at the time to bump my income up.

[IdaInFife]

To be honest , if you have worked out this is all you can afford it does not matter if they accept this offer or not.

 

if this did went to court the judge would be furious if you can prove this is all or even more than you can afford and they are trying to make you pay more.

 

Keep paying it and keep and keep records of this. As i said if this went to court then I would not be worried at all.

 

p.s rag , you are reading too much into the electronic regs in post 28 is more for emails and documents sent via email etc

 

 

Ida x

[Ragtaggeorge]

Ida that a matter of opinion surely. Just kicking an idea around.

My thinking was more along the OFT guidelines of what consitutes a true copy and the critical point that it must be shown to be the original at the enforcment stage not a copy. So you could still threaten them with a complaint to the OFT if they proceeded to court damaging their reputation as a licence holder. It could also be argued that due to the lack of evidence linking you to the document they produce it is a tautology (you are being asked to prove a negative). You could allways go to court take the judgement, which would be less than you are paying now - not have to pay any court fees, then consider appealing if we can interest some legal eagle on the site to draw up a brief.

[IdaInFife]

But,

 

it is up to a judge if the agreement is enforceable or not, not me or you or the dca. Only the prescribed terms are required.

 

The prescribed terms are there and it I believe it is quite easy to link a IP address to a person even if it changed.

 

Anyone could go down the route of prove if was from my reg IP address at that time but we are dealing with everyday people.

 

You do not have a 'true copy' with online agreements and all that is required is a print out of the application online.

 

I do see your point but others have had responses from the OFT on the same basis and have been advised they will not deal with their complaint as the companies have complied with the electronic agreements.

 

It's all fine saying I do not beleive what you have is enforceable but this then becomes that individual caggers fight, until someone goes with this route to get a precedent then I will always advise as with min if they receive a print out of the online agreement then would alwyas advise enforceable.

 

I hope that make sense and do not intend any offence but I have already had too much vodka tonight and waiting on an auction to finish to try and swipe the fianl bid as my four year old has amended her xmas list and the thing she now wants costs £100 and hoping to get it for half!

 

 

Ida x

[steven4064]

I agree with you Ida

[minnimes]

aww ida, bless kids, hope you get it.

im not going to challenge them on this cause i dont know enough and ive still got afew other things out standing, ive cca 3 other companies who have all ignored me, i'll keep paying them what i can afford and if the take me to court then i;ll cross tht when it happens. just while im getting replies, could you tell me how good barclays are at keeping records? ive cca'd them on the 17th nov, i owe them alot of money. again applied for when i was on benefits, they used my husbands income to get me the card and continued to raise my credit limit with out me asking, and now after all the charges etc i owe them almost £10 000! i took the card out a while ago now. i think about 5 yrs ago. if they do produce a cca, what counts ad irresponsible lending and what can i do about it.

[jobmid]

what i recommend is taking the agreement and all the stuff to a free legal clinic if there is a university near you that teaches law you could go there and get your agreement checked out details of the university of liverpool one can be found at Liverpool Law Clinic - THE LIVERPOOL LAW SCHOOL - University of Liverpool

[Ragtaggeorge]

Ida Just expressing an opinion always giving caveats of course. An IP address proves nothing, chain of custody is the issue an original signature adds enormously to the likelihood that the creditor actually took out the agreement themselves. Even so you are missing the clinching point an obviously fake signature can be challenged when presented at court - it takes two sides to make an agreement, both have to be shown to have been party to witnessing the agreement. So lets say the creditor presented an IP address that could be tied down to a particular address. Knowing this my neighbour could apply for credit via my wireless router safe in the knowledge that the agreement would not be enforceable. Incidentally an IT network professional would never find themselves in court for an offence based on an IP address as they would be able to show a jury why such evidence is nonsense. Why do you imagine they always seize computer hard drives. No offence... Enjoy the booze.

[minnimes]

any one with any tips for my post #44? i do a separate thread for it.

[minnimes]

im sending mbna a letter requesting they accept my reduced payments. ive been making them anyway for mnths but they still charge me etc.

what charges can i claim back?

[dpick]

Hi all of late payment charge and over limit charge plus interest applied to those and you can claim interest on these at same rate as MBNA's interest rate to you.

 

Its now nearly 18 months since I completed my reclaim and they may have changed the name of the charges again. You can also reclaim all the £12 charges no one has said that they are fair etc.

 

dpick