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EyeSee

Court Threat -Help!

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Many years ago I had a loan from Nat West for a business, with a personal guarantee. The business didn't work out and the bank asked me to fill in a form about income/expenditure and how much we proposed to pay monthly. I sent it back with a cheque for £150 (which was what we proposed). This was cashed and then paid back into our account.

 

I heard no more until May this year when a letter from solicitors arrived. I wrote back that I hadn't heard for 6 years and considered it Statue Barred. (I used your letter). They replied that they acknowledged the content of the letter and that I should seek legal advice and that they would take me to court for recovery. They made no attempt to prove I was contacted within the last 6 years.

 

I have now received a 'Claim Form' In the Birmingham County Court. It says on the first page 'Repayment of sums due from the Defendant as the Guarantor of the liabilities due to the Claimant of Francois Michel Limited in the sum of £21, 405.27 pursuant to a guarantee executed by the Defendant dated 16th May 2001.'

 

I have no idea who or what Francois Michel Ltd is. The figure is the outstanding amount plus interest of many years. I have 14 days to respond. Any advice would be greatly appreciated as you may be able to guess!

 

Incidentally, the contract says they will recover an amount not exceeding Twenty Thousand Pounds, including interest!

Edited by EyeSee

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Hi I've asked the site team to move this thread to the legal issues where you will receive more help.

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Moved to Legal Forum.


Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

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17 Port & Maritime Regiment RCT

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Guest wino

I have had a look on companies house webcheck and it says that Francois Michel Ltd was a Beauty Salon in London but it was dissolved last year.

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Ha! Well I didn't own a Beauty Salon and if you saw me you'd know I don't use one either. The debt was a guarantee for a Ltd Co loan but not that one. So we assume it is ****e lawyers again hooking money out of their client while paying someone on minimum wage to do the work. They even state they can't ask for more than £20K then go on repeatedly quoting a claim for more. Truly the English language is foreign to them.

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Form filled and sent back challenging whole amount on the basis that I haven't heard in over six years. The papers submitted by the Claimant do not suggest they have, or make any mention of when. The only dates they quote are taking out the loan, 2001 and the solicitors letter, 2010. I attached my letter to the solicitor saying I believed it to be Statute Barred and challenging them to prove someone had been in contact within the last 6 years. They haven't so proved, because no-one has been in touch. They didn't even suggest why their client was having trouble contacting me -as I included in the form to the court I still live at the same address. In fact I have the same phone number and even the same current account at Nat West. So, not too hard to find! I wait with baited thingies.

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Wow! Do I not know anything about 'justice' in this country! I received an 'Allocation Questionnaire' which blows me away. Most of it doesn't seem to apply to me, or any judgement that can be made. The 'Notes' then refer you on to other notes not supplied (but on the website thankfully) and then I find I have to pay at least £35 to defend a claim! Now I've read a bit more, I gather I should have been advised about the Practice Directive by Nat West's solicitors, but wasn't, so haven't had a chance to comply there. But comply with what? As I understand it, if they haven't been in touch for over 6 years, it is Statute Barred and if they have, the solicitors should have provided the evidence as I requested. Please tell me if I'm wrong on this! If I am (as I am convinced) that I am right, then surely this amounts to nothing more than vexatious litigation? And why on Earth does anyone have to pay, to be dragged to court in such a case?

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You dont pay for an allocation questionaire if you are the defendant

 

please confirm

 

1./ you got a n1 claim form

 

2/ you state you are defending in full within 14 days

 

3/ you sent a defence within another 14 days (28 in total)

 

4/ the claimant sent back there defence

 

is this right

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Yes, I got the N1 form and replied that I was defending the claim, whole sum. I attached the letter I had sent to the solicitor and I did that by the date required. The next contact I have had was notification of transfer to my local court and this Allocation Questionnaire asking me things like, which track do I wish to take and have I followed pre-trial procedures (of which I know nothing!).

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Okay,

They are pushing further even though have not complied with your previous request.

You must comply with the AQ ( you don't pay anything ). But attach to the AQ a "Draft Order Direction". Request all the documents they refer to in the claim, inparticular draw on any inaccuracies, and request a copy of the guarantee. This will go back to the court, and be presented to the judge. He will Order the claimant to comply with your request. They are normally given 21 days.

You should also take this opportunity to write directly to the claimant, outlining your case, give them the opportunity to Discontinue the Claim and threaten that when they fail they will be liable for all your costs. As a litigant in person you can claim £9.50 an hour.

 

Debs

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I'm not so sure that the claim is statute barred as it was a personal guarantee to a loan. Would need to check...

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Many years ago I had a loan from Nat West for a business, with a personal guarantee.Who was the Guarantor? The business didn't work out what year did it fail? and the bank asked me to fill in a form about income/expenditure and how much we proposed to pay monthly. I sent it back with a cheque for £150 (which was what we proposed).Anything in writing to confirm acceptance? How long have you made and they have accepted this payment or was it just the one payment? This was cashed and then paid back into our account.Why was it credited to your account?

Regards

Andy


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The loan was to me for the purpose of financing a business. As far as I can see, it is a simple contract with me rather than the Limited Company. Naturally this protects them if the business failed as the debt didn't die with the business. So that makes me the Guarantor. I paid the loan for a couple of years; I don't remember specific dates now, but I would think it was 2003 that I stopped paying.After filling out the form we suggested a payment of £150 a month and sent a cheque as the first payment. They cashed it, but paid it back into the account a little later. We received no communication about that or anything else. So the last contact was Nat West sending us the form to fill in. The next contact was a solicitors letter, out of the blue in May this year, not even an initial contact from Nat West. I replied to that with the CAG letter that I believed the amount to be Statute Barred and if I was wrong to provide evidence. They acknowledged 'the content of my letter' and said merely that I should seek legal advice, pay up or be taken to court.

 

In the information they sent with the N1 Claim was pages of flowery notes confirming I had agreed the loan in 2001 (attaching loan documents, but not the full document it seems as it just suddenly starts with no heading) and that they could recover a sum not exceeding twenty thousand pounds (the claim is for more) and mentioning a Limited company I have never heard of. They made no reference to my letter, nor any mention of when I was last contacted by Nat West.

 

The loan was for £15,000. I paid for perhaps two years, so with the 'amount owing' now being over £20,000 you can see I haven't been paying anything for a while!

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Hi Eyeysee

 

I assume the Claimant is Nastyvest could you give details of the defence you submitted.Have you requested any documention via CPR?

With the issue of AQs , they have responded to your defence and are prepared to proceed.

I would advocate you get a copy of their AQ if not forwarded to you, it may shed a little more light on their intentions.

BTW this will be Fast Track if it proceeds.

 

Regards

 

Andy


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Yes Nat West is the Claimant. All I have done is fill in the form that came with the N1 Claim Form. This asked for details on which I based my defence and I merely noted that I had said it was Statute Barred and that no-one had been in touch for over 6 years, asking for proof if they disagreed. I attached my letter to the solicitor saying this. I have done nothing else. The AQ is asking questions that saying No to seems wrong, like have I tried to agree a settlement. Have I followed pre-trial procedure (didn't know there was any), which track do I want (why would I know or care?), have I paid the fee(?), Proposed Directions, whatever they are.

 

What do I learn if i get their AQ and who do I request it from? I haven't requested any documents from them as I didn't think they were allowed to ignore my request for proof and then drag me into court only to magically produce something there.

 

 

I have just noticed though, that the original contract says 'signed under deed'.

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Yes Nat West is the Claimant. All I have done is fill in the form that came with the N1 Claim Form. This asked for details on which I based my defence and I merely noted that I had said it was Statute Barred and that no-one had been in touch for over 6 years, asking for proof if they disagreed. I attached my letter to the solicitor saying this. I have done nothing else. The AQ is asking questions that saying No to seems wrong, like have I tried to agree a settlement.Put No Have I followed pre-trial procedure (didn't know there was any),No Pre Action Protocol applies which track do I want Fast Track The Claim is above 5K threshold Small Claims Track(why would I know or care?), have I paid the fee(?),Defendant dosent pay the Claimant does Proposed Directions,We need to draft some up to attach to your AQ so tick yes whatever they are.Copies of documents you need them to disclose to prove the debt and for you to defend if necessary

What do I learn if i get their AQ and who do I request it from? Gives an insight into their intended attack and allows you to preempt their next move game of chess really I haven't requested any documents from them as I didn't think they were allowed to ignore my request for proof and then drag me into court only to magically produce something there. If only it was that simple welcome to the world of Litigation

 

 

I have just noticed though, that the original contract says 'signed under deed'.

 

see below

Time limits

If the contract has been signed as a deed, then the innocent party has a time limit of 12 years from the date the breach occurred to bring a claim against the other party, generally for damages (e.g. money to rectify the breach or to cover the losses the innocent party suffered as a result of the breach).

If the contract has been signed under hand, then the victim of the breach has a time limit of 6 years from the date the breach occurred to bring a claim against the other party.

The innocent party may be able to claim specific performance of the contract, terminate the contract of claim damages (i.e. money) depending on the form of the breach. Normally the innocent party will claim damages.

Watch out for…

Time limits run from the date of the breach occurred and not from the date the contract is signed or when the defects liability period finishes!

Who should sign?

Deeds

Private and Public Limited Companies registered at Companies House need:

  • two Company Director’s signatures; or
  • one signature of the Company Director and one of the Company Secretary.

Regards

 

Andy

 


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Yes, I have only just realised the importance of that word and now I am not just trying to defend a point of law but an actual principle. All I wanted was £15K to start up a company. I didn't care who it came from, but the advice was, try your Bank first. So that is what I did. The document submitted with the N1 Claim Form only has my signature on it. Absolutely furious now that Nat West sold me a 'company' loan as a 'personal' loan. I have just written this summary of how it went. Changes what I am defending a bit.

 

 

I asked for a loan from National Westminster Bank, Milton Keynes, to enable me to set up a business in 2001. I was told that this would not be a loan to the business, but to me, so that if the company failed I would still be liable. I understood and accepted that and I would point out that I was not looking for anything other than a loan for seed capital to start a business. Whilst I was asked to produce a business plan, the Manager only gave it a cursory glance and I interpreted that as going through the motions, as the risk on the loan was no more than any other unsecured loan. Had I any idea that this was not just a ‘normal’ loan but rather a contract more usually used in complex contracts, such as the Construction industry I would have looked elsewhere. I was in the Bank’s offices and was given a document to sign there, which I did I thought, as an individual as it had been stressed it was not a company loan. The Bank Manager made me comfortable that signing there and then would get things moving quickly.

Further, as you can see the document says above my signature, that I should seek legal advice as I may become liable. It was said to me that I could do that, but that the contract was ‘standard’ and I understood that the whole point was that I accepted liability, outside of the health of the business. All of this confirmed to me that I was not receiving a ‘business loan’.

In 2003 the company was no longer viable and I closed it down. Nat West contacted me regarding the loan and I completed a form regarding income and expenditure. I suggested that at that time, with my finances in a mess, I could afford £150 a month and I enclosed a cheque. This was cashed and then the amount paid back into my account, I do not know why. I heard no more from Nat West from that date.

I find it unfair and contrary to natural justice that I had been sold what I thought was a simple loan, but was in fact something else and that Nat West have then stood off and allowed six plus years of interest to accrue, to then pick up and pursue me. I have not sought to avoid my obligation, though Nat West has failed to contact me. I have always had the same phone number, lived at the same address and maintained a current Nat West account throughout this time. Not least do I find it odd that Nat West made no attempt to contact me, preferring instead to go to law first, with a spurious claim that they were having trouble contacting me. This is plainly a lie.

The Law Commission has commented on the anomaly of the Limitation Act and I believe I have been duped by Nat West into signing a ‘Company’ loan when all the emphasis at the time was that it was not.

Furthermore, the Solicitors acting for the Claimant were aware that I was of the belief that the loan was a simple contract and chose not to draw my attention to the nature of the document as a Deed. Indeed, they have not taken any action to resolve this matter away from Court, which I presume is a fee based decision.

Lastly, I would note that the N1 Claim Form states that I am the Guarantor of a company called Francois Michel Limited, which is manifestly not the case.

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Yes, I have only just realised the importance of that word and now I am not just trying to defend a point of law but an actual principle. All I wanted was £15K to start up a company. I didn't care who it came from, but the advice was, try your Bank first. So that is what I did. The document submitted with the N1 Claim Form only has my signature on it. Absolutely furious now that Nat West sold me a 'company' loan as a 'personal' loan. I have just written this summary of how it went. Changes what I am defending a bit.

 

 

I asked for a loan from National Westminster Bank, Milton Keynes, to enable me to set up a business in 2001. I was told that this would not be a loan to the business, but to me, so that if the company failed I would still be liable. I understood and accepted that and I would point out that I was not looking for anything other than a loan for seed capital to start a business. Whilst I was asked to produce a business plan, the Manager only gave it a cursory glance and I interpreted that as going through the motions, as the risk on the loan was no more than any other unsecured loan. Had I any idea that this was not just a ‘normal’ loan but rather a contract more usually used in complex contracts, such as the Construction industry I would have looked elsewhere. I was in the Bank’s offices and was given a document to sign there, which I did I thought, as an individual as it had been stressed it was not a company loan. The Bank Manager made me comfortable that signing there and then would get things moving quickly.

Further, as you can see the document says above my signature, that I should seek legal advice as I may become liable. It was said to me that I could do that, but that the contract was ‘standard’ and I understood that the whole point was that I accepted liability, outside of the health of the business. All of this confirmed to me that I was not receiving a ‘business loan’.

In 2003 the company was no longer viable and I closed it down. Nat West contacted me regarding the loan and I completed a form regarding income and expenditure. I suggested that at that time, with my finances in a mess, I could afford £150 a month and I enclosed a cheque. This was cashed and then the amount paid back into my account, I do not know why. I heard no more from Nat West from that date.

I find it unfair and contrary to natural justice that I had been sold what I thought was a simple loan, but was in fact something else and that Nat West have then stood off and allowed six plus years of interest to accrue, to then pick up and pursue me. I have not sought to avoid my obligation, though Nat West has failed to contact me. I have always had the same phone number, lived at the same address and maintained a current Nat West account throughout this time. Not least do I find it odd that Nat West made no attempt to contact me, preferring instead to go to law first, with a spurious claim that they were having trouble contacting me. This is plainly a lie.

The Law Commission has commented on the anomaly of the Limitation Act and I believe I have been duped by Nat West into signing a ‘Company’ loan when all the emphasis at the time was that it was not.

Furthermore, the Solicitors acting for the Claimant were aware that I was of the belief that the loan was a simple contract and chose not to draw my attention to the nature of the document as a Deed. Indeed, they have not taken any action to resolve this matter away from Court, which I presume is a fee based decision.

Lastly, I would note that the N1 Claim Form states that I am the Guarantor of a company called Francois Michel Limited, which is manifestly not the case.

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Ok Eyesee

 

Hence the name Nastyvest.Back to the AQ keep your eye on the date to submit.You are not required to send a copy to their Sols but I advocate one unsigned and they may return the gesture.If not you can request a copy from their sols.Ok tick the Yes to directions, below is an example, Courtesy of Creditcardmug, that you will need to edit to suit and also a a guide to completing the N150 AQ.

 

Draft Order for Directions

 

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) file and serve a verified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) the executed regulated consumer credit agreement made between the defendant and xxxxxxxxxxxxxxxxx under reference xxxxxxxxxxxxx together with any

terms and conditions
link3.giflink3.gif
that applied to it, the original document must be brought to the hearing.

(b) the default notice together with proof of service

© notices of assignment together with proofs of service

(d) a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

(e) any other documents on which the claimant will rely

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the fast track and

 

4 The Defendant shall file and serve an Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

 

Other Information

 

Section I

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.

 

The House of Lords in the case of Wilson
v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature
link3.giflink3.gif
of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the fast track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further

 

Pre-Action Protocols

 

Section C

 

 

This case is not covered by any approved protocol, I have tried to act reasonably in exchanging information/documents relevant to the claim, however the claimant has been unco-operative.

On the DATE I wrote to the claimant requesting information pursuant to the CPR part 18
link3.giflink3.gif
, in order that I could investigate their Particulars of Claim, and file a suitable defence. A copy is attached to this form.

 

The claimant has not replied

 

 

Section A tick no to all

4 reasons The claimant has failed to substantiate this claim

Section B tick yes (if it has already been transferred to your local court) if it has write that in the box, if not write that you are unable to travel etc.

section C tick no. in the box write "please see attached section C"

Section D Write the amount they are claiming, not including costs

applications tick no

witnesses write your name, and in brackets "myself"...in the other box write "all facts"

Experts tick no to the first question, leave the rest blank

Track fast track....leave the box blank

Section E 2 hours....fill in the rest if there are any dates you cant attend

Section F tick yes to 1st question...no to 2nd

Section G leave blank

Section H leave blank

Section I tick yes to the 1st question...no to the second

tick no to applications

in the big box write "please see attached section I"

 

Sign & date it etc.
Just post if you are unsure of anything

 

Regards

 

Andy


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Have you SAR'ed Natwest ?

 

This will reveal all transactions on the account & will prove one way or the other if it is statute barred.

 

You also say that interest has been applied. Have they been sending statements ?

 

Debs

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Right, being completely ignorant I had no idea of the importance of the 'by deed' bit. I have now found the original document I signed to start the process and it was a Non-CCA Business Development Loan. The contract itself says 'by deed' and cites me as as the Guarantor. I am annoyed at this tactic by Nat West as they seem to have deliberately taken this route to minimise my rights whilst maximising theirs, for no good reason. I closed the company after about 2 years or so and at that time knew I had to take on the repayments privately. I couldn't afford the full amount so filled out an income/expenditure form and proposed £150 per month and enclosed a cheque. They cashed the cheque and then shortly after paid the amount back into my account. I received no explanation for this. The date was late 2004, early 2005. I heard nothing more until a solicitors letter arrived in June 2006 chasing the debt (I have found a box of old papers!) to which I replied within days asking what they wanted me to do (as they hadn't responded to my last attempt to pay). I heard nothing more until May 2010 when the latest action started.

 

I have now written to the Bank's solicitor to say I realise my error and wish to enter dialogue(!) What I would like to know, if anyone can help with this, is can a Bank offer a loan of £12,000 to a company, but requiring me to sign as an individual and guarantee the amount as an individual? If I was signing as a Director, for a company loan, with a personal guarantee, does not a 'by deed' contract require two Directors or one plus Company Secretary to sign? If I was signing as an individual are they not legally obliged (as it is under £25K) to issue it under the Consumer Credit Act?

 

Suffice to say it is somewhat galling to now 'owe' more than twice the outstanding capital sum because the Bank have refused to reply to our previous approaches.

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Clarification: I went for a free half hour with a solicitor and he said that I had signed as an individual, but my Nat West form clearly states that it is a loan to the Company and I am signing as a Director. The Form (NW1683) says 'Non CCA Regulated Business Development Loan (with Farm Development and Start Up Loan crossed out) stating the purpose of the loan as 'Start up costs'. At no point does it mention 'by deed'. The paperwork that does say this, is signed by only me.

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Hi Eyesee

 

You case is rather different to the norm on here and can become quite complex.

 

 

From April 6,2008 the Consumer Credit Act 2006 came into force. Stopping short of full Financial Services Authority regulation, the updated CCA seeks to tighten up the secured loans market.

A major change is the removal of the previous ceiling for credit agreements covered by the CCA. All will now be covered so there will be no more £25,001 loans to circumvent the act by breaching its ceiling.

The new legislation has been a long time coming. Besides the removal of the £25,000 ceiling the act also features an unfair relationships test. This sounds ambiguous for good reason. It has been designed to give the courts the widest possible remit when assessing whether agreements fail the test. It replaces the current extortionate credit bargains test, which has been difficult to enforce.

 

As i have stated the agreement would require 2 signatures otherwise its worthless in my eyes.Perhaps you should seek legal advice on business loans.However the loan is non CCA it states it on the application.

 

 

Regards

 

Andy


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