Any Advice in a Desperate Situation

wantmemoney

Originally Posted by wantmemoney
I was referring to what may happen if Orange decided to pursue the alleged debt in court.
your silly comment clearly show you don't understand how courts work.

Guys_Dad wrote:

I understood what you wrote.

I understood that it applied if Orange actually did take OP to court.

I also understand that courts deal with contracts, law as it stands, not as one might like it.

Courts are not primarily concerned with why an industry does or does not do something. It deals with what they have contracted to do and what they are required to do.

Enquiries, Regulators and campaigning journalists ask these questions, not small claims courts.

I suggest you google 'mitigation law damages' and do some reading.

http://www.edwardswildman.com/files/News/4ea1ebde-9c2a-48d4-b087-86e84a779c54/Presentation/NewsAttachment/560c5b8c-6fbc-4784-ae2d-87f379cf4885/Mitigation%20of%20loss%20-%20what%20is%20reasonable%20-%20February%202009%20-%20EAPD%20article.pdf

'Following a breach of contract, the innocent party[Orange in this case.] has a duty to mitigate the loss it has suffered. This duty requires reasonable steps to be taken to limit the losses that are incurred (and also to avoid incurring unnecessary expenditure seeking to remedy the breach). A claimant cannot simply sit on its hands watching losses accumulate with the intention of recovering them in full from the defendant.'

pb3

OP - My sympathies to you.

I'm afraid I can't offer any advice wrt the situation you describe. I really do hope it works out for you.

My advice is that in future you / your son always secure your phones with a strong passcode (most modern phones provide this facility) along with a PIN on the sim card. Finally add a start screen message (if the phone offers this facility) offering a reward if found and providing a contact number.

These measures are a pain I admit - but they buy you time and provide some measure of protection against the situation you describe, if your phone is ever lost or stolen. The passcode on the phone means the "new owner" will need to wipe all data, apps and settings via a hard reset in order to use it. The sim PIN locks out the SIM card after 3 incorrect attempts, out of a possible 10,000 combinations. The SIM passcode applies even if the SIM is placed in another phone. The thief/new owner would need to be very lucky unless you chose a stupidly simple PIN such as 1234

I was unfortunate enough to lose a very expensive (:(!) smartphone not that long ago. I gave up and rung the network provider after a few hours when repeated attempts to ring the phone proved unsuccessful. The network provider confirmed that no calls had been made during the period.

So I'm without my phone (probably in use in some overseas country by now) but at least I was spared a potential world of pain had the new owner got access to my contract SIM and the personal data stored on the phone.

I fail to see why smartphone manufacturers cannot include a facility to passcode protect hard resets of their phones. Currently it is trivial for a thief to remove the passcode on a smartphone (and remove all GPS tracking functionality as well!) via a hard reset.

Guys_Dad

wantmemoney wrote: »

I suggest you google 'mitigation law damages' and do some reading.

http://www.edwardswildman.com/files/News/4ea1ebde-9c2a-48d4-b087-86e84a779c54/Presentation/NewsAttachment/560c5b8c-6fbc-4784-ae2d-87f379cf4885/Mitigation%20of%20loss%20-%20what%20is%20reasonable%20-%20February%202009%20-%20EAPD%20article.pdf

'Following a breach of contract, the innocent party[Orange in this case.] has a duty to mitigate the loss it has suffered. This duty requires reasonable steps to be taken to limit the losses that are incurred (and also to avoid incurring unnecessary expenditure seeking to remedy the breach). A claimant cannot simply sit on its hands watching losses accumulate with the intention of recovering them in full from the defendant.'

First of all, Orange was not made aware of any problem till later and immediately took steps to mitigate by cancelling the sim.

It was the OP and her son who were facing losses and had duty to mitigate their contractual losses.

Read the last paragraph of the link you gave above. It applies directly and could have been written for the lack of action by the OP/son.

Guys_Dad

amcg100 wrote: »

When it comes to different branches of the law, contract is at the bottom of the pecking order, particularly when consumers are involved. Why do you think the banks are being forced to write off Billions in credit card debt - because the contracts are unenforceable. Guys Dad needs to read a bit more about the rudiments of law and stay away from studying contracts for a bit.

So all OP has to do, should this reach court, is make a defence based on it being Orange's fault, that the needy inform Orange of the theft was an unfair and onerous contract term and the debt would be wiped out?

Well, that's all right then. OP has nothing to worry about.

Thanks for the law lesson. And, of course, following that, the credit record would be automatically wiped clean, no doubt.

wantmemoney

Guys_Dad wrote:

First of all, Orange was not made aware of any problem till later and immediately took steps to mitigate by cancelling the sim.

yes five days later!

a court may decide that Orange apparently relying totally on the customer to protect the Orange billing platform from loss due to fraud doesn't amount to Orange taking reasonable steps to limit the amount of damages they claim.

It was the OP and her son who were facing losses and had duty to mitigate their contractual losses.

no
if the OP refuses to pay the fraudulent bill then it's Orange who is facing the 'contractual losses' and it is Orange that has to decide whether to pursue the damages in court.

Read the last paragraph of the link you gave above. It applies directly and could have been written for the lack of action by the OP/son.

absolutely agree
that is the point I'm trying to make. Whether Orange chases the customer or the customer chases Orange, the same Law applies to both.

all this is probably hypothetical anyway because it's very unlikely that a Network would want to answer questions on why fraudsters are allowed to use their billing platform.

this applies mainly to phones being used to commit fraud abroad
http://bswan.org/revenue_share_fraud.asp#.UVmbaqK-pcY

'Then, about four years ago the GSM association approved a project to implement Near Real-Time Roaming Data Exchange (NRTRDE), allowing operators to get their hands on their international roaming call data much faster. That new process reduced that 24-36 hour time period between the fraud taking place and getting the roaming records at the home network. So NRTRDE was key to reducing the IRSF window to only 4 hours, which helped to take away many of the big fraud hits.'

'The basic GSMA roaming agreement for example, which is bilaterally agreed between two operators says that the originating operator must pay for all calls originating from his network — whether it is fraud or not.'

Guys_Dad

You have got me going round in circles now just trying to understand the points you were trying to make in your post beginning "I suggest you google 'mitigation law damages' and do some reading.".

That suggested I knew nothing about the law of mitigation. However, there is a basic point and that is you can't begin to mitigate till you are aware of the problem.

Now I said that the OP/son had a duty to mitigate once they knew about the loss. But Orange could not begin to mitigate till they were made aware of the loss/problem/theft and immediately that they did, they cut off the service to the stolen sim.

I really can't see exactly what contribution or revelation you made in your posts above, other than you don't understand what small claims courts do or at what point mitigation can begin.

And you tell me to do some reading !!! :rotfl: :rotfl: :rotfl:

macman

As the OP made 3 posts on 27/3 and has not been back since (I wonder why?), this has all become somewhat arbitrary now. The actual theft seems to have happened sometime in January.

wantmemoney

Guys_Dad wrote:

That suggested I knew nothing about the law of mitigation.

well yes......mitigation is not a law it's merely a term (a word)

Guys_Dad wrote:

However, there is a basic point and that is you can't begin to mitigate till you are aware of the problem.

and to suggest a Network can't prevent or protect an account from fraudulent activity unless the customer tells them the phone has been lost is plain silly.

Banks and Credit card companies have systems in place

macman wrote:

As the OP made 3 posts on 27/3 and has not been back since (I wonder why?)

yes it happens on every thread where OP's post the problem of lost/stolen phones and a resulting huge fraudulent bills.

Is it because on every thread the OP is targeted with a barrage of almost identical posts from the same group calling the OP irresponsible, to blame, liable, to pay up and in effect shut up?

and is it because if anybody tries to give an alternate view or information that somebody does not agree with or is unable to understand, there is always somebody that wants to derail the thread by starting some pointless argument.

Silk

wantmemoney wrote: »

well yes......mitigation is not a law it's merely a term (a word)

Not quite true as it's a legal principle not just a word, which in this case the OP has failed to abide by. Failing to limit the losses by doing nothing for the week before it was reported to the Network to cap the loss etc
The Network has done their side correctly by blocking the phone as soon as it was reported.

wantmemoney wrote: »

Is it because on every thread the OP is targeted with a barrage of almost identical posts from the same group calling the OP irresponsible, to blame, liable, to pay up and in effect shut up?

Could be because the thread goes off topic with all the "what if" situations and theories about organised crime and fraud etc etc

wantmemoney

Silk wrote:

Originally Posted by wantmemoney
well yes......mitigation is not a law it's merely a term (a word)

Not quite true as it's a legal principle not just a word, which in this case the OP has failed to abide by. Failing to limit the losses by doing nothing for the week before it was reported to the Network to cap the loss etc

leaving aside whether 'mitigation' is a word or not,

I not sure anybody has suggested the OP didn't fail to abide by the Network Terms (I personally don't know)

...........but which precise term did they not abide by?.......where does it mention that 'Failing to limit the losses by doing nothing for the week before it was reported to the Network' would mean that they did not 'abide'.

Silk wrote:

The Network has done their side correctly by blocking the phone as soon as it was reported.

if you read my posts I was suggesting that if Orange tried to chase the charges in court a judge may decide that the Network should have done more to stop the charges racking up.
The Court court may have decided that Orange should of had measures in place similar to banks and credit card companies.

Silk wrote:

Could be because the thread goes off topic with......theories about organised crime and fraud

and what do you believe lies behind these huge fraudulent bills run up on stolen phones?