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A & L - Enforcable Agreement???

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Forgot to add that I have to write to them all anyway as I am changing address this week so I may as well hit them all with another "prove it or bog off" letter...

 

Thanks,


:)** Any opinion expressed by me is given with the best intentions - But I could be wrong so bear that in mind**:)

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As you're writing to them anyway, add that you're still waiting for them to fulfil your CCA requests and advise that you WILL report them to TS and the OFT if they don't comply.

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Do you think it's worth asking how they propose to settle the dispute as it''s obvious they cannot comply with my original request?

 

It would be nice if I could just bung them a few quid and have the whole thing completely settled...May just be a pipe dream though...;)


:)** Any opinion expressed by me is given with the best intentions - But I could be wrong so bear that in mind**:)

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you could always if you can afford it send a SAR request off it will be a £10 fee. you would need to send it to the DCA AND OC if they are with a DCA due to seeing what charges have been added by both companys. Then when u have the paperwork you can work out the charges and demand they are taken off the debt.

 

this way you can work out a proper full and final settlement figure.


OFT debt collection guidance

 

Please remember the only stupid question is the one you dont ask so dont worry about asking the stupid questions.

 

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It's certainly worth thinking about - I'm just curious to see what they have to offer to try and get me to pay. They must realise that the agreement doesn't hold water - And the last letter I sent was three pages long so they should be convinced that I'm going to fight them.

And all the calls have stopped - Not even had a letter for the last three weeks!!!Other than to offer me an A&L loan!!! You couldn't make it up...lol

The only that keeps calling is Mint - They haven't made any attempt to reply to either of my letters so the next one will be very strongly worded and I think I will SAR them....;)

 

I'll see what comes in this week if anything...

 

Cheers,


:)** Any opinion expressed by me is given with the best intentions - But I could be wrong so bear that in mind**:)

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that is your best bet i say. that way you c negoiate a f=f on your terms insted of theres which is what u want.

 

Shout if u need any help.


OFT debt collection guidance

 

Please remember the only stupid question is the one you dont ask so dont worry about asking the stupid questions.

 

Essex girl in pc world looking 4 curtains 4 her pc,the assistant says u dont need curtains 4 a computer!!Essex girl says,''HELLOOO!! i,ve got WINDOWS!!'.

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Looks like I spoke a bit too soon....Just got the "POTENTIAL COMMENCEMENT OF LEGAL PROCEEDINGS" letter from A&L...They may do this and they may do that and it may end up doing this...God, they really don't take people seriously do they?

So I think I will hit them with everything I can think of in answer to the letter...

I'll post my letter on here before I do anything - But I'll go for the vigorously defend anything you throw at me and do the SAR in one I think...

 

Thanks for your help GM and BB, I really do appreciate it...:)...

 

Thanks again


:)** Any opinion expressed by me is given with the best intentions - But I could be wrong so bear that in mind**:)

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No stop.

 

Yes send the letter about defending etc If tehy do enter procedings against u then you dont need to SAR the as it is subject to court procedings.

 

U will need to CPR them and that costs NOTHING.

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OFT debt collection guidance

 

Please remember the only stupid question is the one you dont ask so dont worry about asking the stupid questions.

 

Essex girl in pc world looking 4 curtains 4 her pc,the assistant says u dont need curtains 4 a computer!!Essex girl says,''HELLOOO!! i,ve got WINDOWS!!'.

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Multay, if you want to play them at their own game and you have said already that it is your intention to prepare in advance just in case...

 

This letter by pt2537 with a bit of jiggling might be of use. THis is the link

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/123802-next-retail-blank-agreement-4.html?highlight=Protocols+4.6+of+the+Civil+Procedures#post1545617

 

 

However, I have brought it over as well and amended it slightly. Note in (f) below it actually mentions mediation.. which of course is what you want them to enter into regarding a Full and Final and in (b) it requests copies of the documents that you would have to pay £10.00 for if you were to SAR them. :D

 

 

WARNING:

THIS IS A REQUEST UNDER THE CIVIL PROCEDURE RULES. PLEASE DO NOT IGNORE.

Dear Sirs,

 

REF: aCCOUNT nO: xxxx xxxx xxxx xxxx

 

I am in receipt of your letter dated XX XX 2008 and note your intention to commence legal proceedings.

 

I draw your attention to thefact this alleged debt is disputed by myself and I am still awaiting you to provide me a true copy of the credit agreement for this account. you will no doubt be aware of the implications of not having a signed copy of the Credit Agreement between parties. i therefore invite you to either produce a copy of the credit agreement upon which your threatened proceedings will be based or should you not be able to do so, I demand you withdraw your frivolous threats of litigation

 

I must point out that any litigation brought against me by your company will be vigorously defended and furthermore i shall ask the court to consider my costs in defending such an action

 

Since I am treating this letter as a letter before claim, im sure you will be aware the Civil Procedure Rules pre action protocols require at para 4.3 the following be contained withinthe letter before claim

 

4.3 The claimant's letter should –

(a) give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;

(b) enclose copies of the essential documents which the claimant relies on;

© ask for a prompt acknowledgement of the letter, followed by a full written response within a reasonable stated period;

 

(For many claims, a normal reasonable period for a full response may be one month.)

(d) state whether court proceedings will be issued if the full response is not received within the stated period;

(e) identify and ask for copies of any essential documents, not in his possession, which the claimant wishes to see;

(f) state (if this is so) that the claimant wishes to enter into mediation or another alternative method of dispute resolution; and

(g) draw attention to the court's powers to impose sanctions for failure to comply with this practice direction and, if the recipient is likely to be unrepresented, enclose a copy of this practice direction.

 

I therefore i invite you to provide the documents that you intend to rely upon pursuant to the practice direction pre action protocols

 

Should you fail to comply with this request i shall draw such failure to the attention of the court

 

i look forward to your reply

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Cheers for that Guys.... What do you think of this letter, it's a bit long but I think it gets my point across...

 

ACCOUNT IN DISPUTE

DO NOT IGNORE THIS LETTER

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxxxxx

Re: my request under the Consumer Credit Act 1974

 

Thank you for your letter of 9th.July,2008 entitled “POTENTIAL COMMENCEMENT OF LEGAL PROCEEDINGS”, the contents of which have been noted.

 

On 27th.May, 2008 I wrote to A&L requesting that Customer Service supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a form which did not comply with the requirements of the Consumer Credit Act 1974.

You have not fulfilled my request under the CCA 1974 as the document sent is:

1) Illegible

2) Without full prescribed terms.

3) Incomplete with pages missing.

In addition the Terms and Conditions do not pertain to the alleged agreement as required by the Act.

You are now in default of your request and until such times as you send a true copy of the agreement requested, the alleged debt is in dispute and any enforcement action on your part will be contrary to the CCA 1974, the Administration of Justice Act 1970 Section 40 and OFT guidelines.

I therefore, request that you also instruct the RMA collection agency to cease attempts to claim the alleged debt and refrain from the daily telephone calls to my number. A copy of this letter has been forwarded to RMA.

 

The document sent purporting to be a credit agreement does not contain the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states:

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

Further more, since the prescribed terms do not appear within the agreement you have supplied, the agreement is rendered totally unenforceable, as the prescribed terms must be contained within the agreement and not a separate document, case law confirms this opinion

 

I refer you to the judgment of TUCKEY 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:

 

"33 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."

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states:

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment”

 

As it stands, the document supplied by you is not a valid credit agreement nor is it enforceable by any court.

I must point out that any litigation brought against me by your company will be vigorously defended and furthermore I shall ask the court to consider my costs in defending such an action

I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to Trading Standards.

I require you to produce a compliant copy of my credit agreement; a mere copy of the same agreement supplied previously will not suffice. If you cannot do so I require written clarification that this is the case.

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

I would appreciate your due diligence in this matter in the hope of reaching an amicable conclusion to this matter.

 

I look forward to hearing from you in writing.

 

Yours Faithfully,

 

Multay

 

What do you think? Any good? I pinched it and tweaked it a bit...I did send a similar version out about a month ago, but I figure that it is still relevent...:D

 

Cheers,


:)** Any opinion expressed by me is given with the best intentions - But I could be wrong so bear that in mind**:)

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Can I be really cheeky?

 

I have a couple of others that haven't sent me anything back and are outside the 12+30 days so I'm going to send them a letter too...

 

Would you mind having a quick look for me before I do?

 

Here it is:

 

Dear Sir/Madam

 

Thank you for your letter of 3rd.July, 2008, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On the 27th.July, 2008 I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

 

To date you have failed to comply with these requests by supplying the requested documents.

 

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

 

In my letter of the 27th.July, 2008 I made a formal request for a copy of the signed, executed credit agreement for the above account under section 77(1) of the Consumer Credit Act 1974. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before entering into a default situation.

 

If that request is not satisfied after a further 30 calendar days you commit a summary criminal offence.

 

These limits have expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

And

 

(b) If the default continues for one month he commits an offence.

 

Therefore this account has become unenforceable at law.

 

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter; I also require a copy of your complaints procedure as I may wish to register a formal complaint.

 

I would appreciate your due diligence in this matter in the hope of reaching an amicable conclusion to this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

 


:)** Any opinion expressed by me is given with the best intentions - But I could be wrong so bear that in mind**:)

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Thumbs up to both of the letters Multay:-D

 

PS.. Thank you for clicking my scales:)


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Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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I have another question (surprise, surprise..:D)...Suppose this does go to court and the judge asks me if I owe the money, what do I say?

I saw somewhere that I have to stick to the legalities but what would I say to the Judge????

Do I just say that this isn't about money it's about the DCA/OC's right to collect the alleged debt???

 

Thanks again...

 

M


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Short answer is: "In my opinion, no."

 

It's up to the creditor to prove that you do, after all that's why you are in court.

 

David

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OWNED.

 

can i pinch some of that so i can own these companys aswell.


OFT debt collection guidance

 

Please remember the only stupid question is the one you dont ask so dont worry about asking the stupid questions.

 

Essex girl in pc world looking 4 curtains 4 her pc,the assistant says u dont need curtains 4 a computer!!Essex girl says,''HELLOOO!! i,ve got WINDOWS!!'.

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Hi Guys,

 

Got a letter from A&L....I particularly like the childish ending...What do you think to this one...

 

http://i277.photobucket.com/albums/kk44/Multay/Letter24708.jpg


:)** Any opinion expressed by me is given with the best intentions - But I could be wrong so bear that in mind**:)

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So I'm thinking of sending this to them... But any thoughts/Help will be greatly appreciated as always...:D

 

Thank you for your letter of 22nd..July,2008 the contents of which have been noted.

I am disappointed that you feel the form you supplied conforms to the requirements for enforceable agreements as set out in the Consumer Credit act 1974. As I am sure you are aware, the law is very clear as to what does and does not constitute an enforceable agreement.

I have previously detailed the reasons why the agreement is not in the required format, this has not changed and therefore the account is still in dispute until such a time that you supply documents that comply with my legal request.

You have not fulfilled my request under the CCA 1974 as the document sent is:

1) Illegible

2) Without full prescribed terms.

3) Incomplete with pages missing.

In addition the Terms and Conditions do not pertain to the alleged agreement as required by the Act.

You are now in default of your request and until such times as you send a true copy of the enforceable agreement requested, the alleged debt is in dispute and any enforcement action on your part will be contrary to the CCA 1974, the Administration of Justice Act 1970 Section 40 and OFT guidelines.

I also note the statement “we may use collection agencies to collect on the debt” and that you will continue to add charges to the account.

I am somewhat bemused by this statement as you have already referred the alleged debt to a Debt Collection agency – The agency being RMA and you have done this despite there being a clear dispute and whilst ignoring my attempts to resolve the matter.

I also find your statement that “no further correspondence will be entered into regarding this matter” to be a disappointing response to my dispute and , bearing this in mind, I would like to respectfully request a copy of your complaints procedure as I feel there is no other avenue open to me.

I feel I should point out that should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states:

 

2.6 Examples of unfair practices are as follows:

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment”

As you are aware while my Consumer Credit Act request remains in default, enforcement action is NOT permitted; under s127 this constitutes a complete defence at law. Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

In summary, the document supplied by you is not a valid credit agreement nor is it enforceable by any court.

I must point out that any litigation brought against me by your company will be vigorously defended and furthermore I shall ask the court to consider my costs in defending such an action

I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to Trading Standards.

I require you to produce a compliant copy of the credit agreement; a mere copy of the same agreement previously supplied will not suffice. If you cannot do so I require written clarification that this is the case.

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

I would appreciate your due diligence in this matter in the hope of reaching an amicable conclusion to this matter.

 

I look forward to hearing from you in writing.

 

Cheers Guys......


:)** Any opinion expressed by me is given with the best intentions - But I could be wrong so bear that in mind**:)

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Another good letter Multay - they needn't bother chancing their arm with you!:grin:

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Haha....I wish they were my letters but I just pinched them off of here!!!There is a some personal modification but the meat of them comes from the forum...

 

I'm quite enjoying messing with them really - I honestly can't belive that they can have a standard letter with such a childish tone..And threatening to give it to a debt collector even though they already have...haha...You couldn't make it up...Mind the good thing is that this will make a nice one to show the judge (if it comes to that) when we talk about why there has been no settlement and how they refused to talk to me..:D

 

I would like it to be over though, but I can't see that happening for some time...

 

Oh well, if no-one has any reason for not sending this then it will go tomorrow recorded delivery.


:)** Any opinion expressed by me is given with the best intentions - But I could be wrong so bear that in mind**:)

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Oh...Does anyone have the address of the FOS and OFT? I'm going to get complaints in against a few - Especially Mint!! They are ringing every day now...

 

Cheers,


:)** Any opinion expressed by me is given with the best intentions - But I could be wrong so bear that in mind**:)

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I wouldn't bother writing back to A&L.... if you read their letter again, it clearly states that they've sent you all that they've got :D. They'll flog it out now. Mine went to Fenton Cooper.... and when they got no joy.... to Mack Hall after that.

 

All of them bogged off some time ago now.... ;)

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"To love unconditionally is the greatest gift, laughter is a close second" .To give your time to help others after being helped here is the best way to show your appreciation to your fellow CAG members.

 

Please note that this advice is given informally, without liability and without prejudice. Seek the advice of an insured qualified professional if you have any doubts. All my knowledge has been gained here, for which I'm very grateful. I'm a Journalist, not a law professional.

 

If you do PM, make sure to include a link to your thread as I don't give out advice in private ;)

BB 13 - DCAs/banks and solicitors 0.

 

I get a fresh start to get on with learning to live with severe disabilities when they could have had something if they'd been understanding...

 

<--- If you feel I've helped, please twinkle my star :)

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Hi Multay

 

On another thread you asked for an opinion on the agreement related to this account. The agreement is posted in post #14 on page 1. It consists of an application form from 2002 plus current T&Cs (you can tell this because the charges are £12. They only came in last year), which include the prescribed terms.

 

THis puts things in an odd position.

 

1. What they have sent complies with the 1983 regulations about what can be sent inreply to a request under s78(1) of the CCA 1974. So they have complied with that.

 

2. However, what they have sent does not have the prescribed form for an executed agreement (s61 of the CCA 1974). Therefore, it can only be enforced by a court (s65 of the CCA 1974). But, since it doesn't consist of "a document signed by the debtor and having within itself the prescribed terms", a court cannot enforce it (s127(3) of the CCA 1974).

 

So you have what is a fairly common beast - an agreement which complies with s78(1) but is nonetheless unenforceable :p

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Clydesdale Financial Services (now BPF) Won unconditionally February 2008

 

Any opinions are without prejudice & without liability. Do not take any legal action on my advice alone. Almost everything I know concerning the law I learned from this site.

 

Please note, I will not give advice by PM. Please send a link to your thread and I will do my best to answer there.

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So, just so I understand...They have complied with my CCA request BUT what they have sent is unenforceable in a court???

 

So in theory my letters are kinda correct in so much as I am asking for an enforceable agreement.

 

Thanks,


:)** Any opinion expressed by me is given with the best intentions - But I could be wrong so bear that in mind**:)

Missed Call Checker - http://whocallsme.com/Phone-Calls.aspx/077/m

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