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There is no set size for the box but the wording must be as in CCA Regs 1983.

 

Extract from OFT Guidance/FAQs on Consumer Credit (Agreements) Regulations 1983 as amended by the 2004 Amendment Regulations

 

'6.9 Are there rules on the size of signature box?

The signature box may be of any size, but must contain the wording specified in Sch 5. Such wording must (apart from any signature) be easily legible and of a colour which is readily distinguishable from the background medium – see Q7.1.'

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Morning everyone.I recieved this today from one of the Credit card cos.I had prev requested a CCA and recieved a CC application form instead I said this wasn't good enough etc and this is their reply

 

I refer to your correspondence dated 29 August 2008.

I regret to advise that the card agreement has been misfiled and despite searching of our records we have been unable to locate it. Our record of the setting up of the card account has insufficient detail to enable us to recreate the agreement with the required degree of certainty this course of action requires.

In the circumstances we appreciate that under Section 78 of the CCA if you decide not to meet your obligations under the card agreement as they fall due we will be unable to take steps to enforce repayment of the debt. However we consider that you should continue to meet your obligations under the agreement bearing in mind that the agreement isn't void, it remains valid and your continuing default will be reported to the Credit Reference Agencies.

Section 78 reference to 'unenforceable' means we are only prevented from pursuing recovery of the debt through the courts.

Should further assistance be required, please do not hesitate to contact us at the above Office.

 

Any comments, should I continue with my £1.00 per month payments and if not what are the repercussions?

Edited by loramos
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You could argue with them that the agreement is in fact legally void as they are unable to prove any properly executed agreement. I would strongly put them on notice that they should immediately cease processing your information with Credit Reference Agencies.

 

For a start, while they can't comply with your s78 request they are specifically forbidden by the CCA1974 to register any defaults with the Credit Reference Agencies.

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There is no set size for the box but the wording must be as in CCA Regs 1983.

 

Extract from OFT Guidance/FAQs on Consumer Credit (Agreements) Regulations 1983 as amended by the 2004 Amendment Regulations

 

'6.9 Are there rules on the size of signature box?

The signature box may be of any size, but must contain the wording specified in Sch 5. Such wording must (apart from any signature) be easily legible and of a colour which is readily distinguishable from the background medium – see Q7.1.'

 

Hi

 

Does there have to be a box then.

 

I have some agreements with the wording but not in a box

 

HAK

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Hello AC!

 

As I understand it, if the Account was Terminated on the back of an invalid Default Notice, then it's a case of Unlawful Rescission of Contract.

 

In effect, the OC has denied themselves, or any DCA following on thereafter, the Right to take you to Court to Enforce the Debt.

 

The DCA is just making up new Rules as it goes along!

 

If the OC has blown the requirements of s87(1), but still went ahead and Terminated the Account irrespective of this, then that's it. Game over.

 

They have lost the Right to Enforce. They can't go back to fix this error once the Account is ended, as there is no longer a live Account to Default. They have failed to close it in the lawfully prescribed manner, but close it they have. Tough beans.

 

To Enforce, they need a Default Notice. Except they no longer have a valid one to wave at you! The one they did create may as well be a Banana for all the use it will be to them, that's if it is invalid/defective.

 

Once an Account is Terminated, it can't be un-Terminated without your Consent. In theory, to re-activate it, would mean a new Credit Agreement. I doubt you would want to agree to that.

 

They can't just open and close and open and close Accounts willy nilly, as the Consumer Credit Act 1974 is there for a reason to control this. The CCA Regulates the Opening and Closing of Agreements. They have to be set-up/Opened correctly, and they have to be closed/Terminated correctly.

 

The Unlawful Rescission of Contract also then opens up the scope to seek compensation from them...see below:

 

 

 

I hope this helps.

 

Cheers,

BRW

 

 

Thanks BRW!

 

I still need some clarification;

 

My account was defaulted by MBNA whilst I was in dispute in 2007. The default notice required payment, the remedy, by 1st April 2007;

"On are after the date shown, the agreement will be terminated".

 

MBNA, then sold the account to Link Financial in July 2007. MBNA were in default of s78 CCA at this time.

 

Link Financial have pursued me but I do not acknowledge the debt, as it is made up of mis-sold PPI premiums and interest. I have never paid any monies to Link.

 

Over the weekend I have received a Default Notice fron Link in relation to the account.

 

Note, Link appear to be sent out these default notices to other members.

 

Can they default an account that has already been defaulted and terminated by the OC?

 

Link state:

 

"We Link Financial Limited, give you notice of default acting on our own behalf as assignee of the benefit of the above referenced account and debt, AND ON BEHALF OF MBNA TO THE EXTENT THAT THEY ARE STILL A CREDITOR".

 

Link will not say what type of assignment this is; equitable or absolute?

 

If the assignment is absolute, then MBNA would not be a Creditor.

 

Therefore, if they are both creditors the NOD would need to have both names on it;

MBNA & Link, wouldn't it?

 

Surely, if an account has been terminated and then sold, how could a DCA, LINK, default it and then terminate the account again...doesn't make for common sense.

 

AC

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Hello AC!

 

It sounds like the usual DCA fun and games, disinformation and invented rules to suit their desired end result...irrespective of the Law.

 

Firstly, I think it's wise to remember that an Agreement, if properly executed and Regulated by the Consumer Credit Act 1974, is a binding Contract between both sides.

 

A lot of the discussion in this Thread does, correctly, concentrate on the Consumer side of this. However, we must also remember that there is another side to this. The other side, namely the Lender or Original Creditor (OC), that side is very tightly governed by how it can, and cannot, act.

 

If you or I want to end an Agreement, the main issue that matters is to close it leaving no Debt. If a Credit Card, you Pay the Balance, send the Card back, and say Bye, Bye, it was nice doing Business with you.

 

However, if the OC wants to end the Agreement, then they can't just wake up one morning having a Bad Hair Day, and say, that's it, Terminated, now Pay us the Balance. They would probably have to compensate you for the gross inconvenience this would cause, and the compensation could be to wipe the Balance.

 

Now, if you Breach your side of the Agreement, then the CCA via s87(1) sets out what they need to do to warn you via a valid Default Notice, and then, if you do not remedy that Breach within the Statutory timescale advised via the lawful Default Notice, thereafter, they acquire the Right to Terminate the Agreement and seek early Payment of the whole Balance. This can be via Court if you won't or can't Pay it.

 

What they now have is an Enforceable Lump Sum Debt. It is no longer an Agreement, so there is no point Defaulting it. It's just a lump sum Debt backed up by sufficient evidence to allow a Court to Enforce it. They can either make you Pay, or they can Sell it on fast for a fast buck, and let someone else make you Pay. The wise OC will work out their Court Costs, work out the time it will take, work out the loss of income (or opportunity cost) if they did not have the cash to re-lend now, and then deduct all of that from the Debt Total and then find a dull DCA to sell it to for around that figure.

 

Now, if they didn't abide by the Rules, specifically s87(1), then they can't seek early Payment of the whole Balance. Indeed, as I understand it, they can't seek anything, as they've blown their side of the Agreement once they unlawfully Terminate the Account. Whatever Breach you made no longer matters, as they've chopped off the end prematurely. They've made it Unenforceable by not following the rules. They've left themselves with an Unenforceable Debt. They can sell that, but selling it does not make it Enforceable, and does not re-activate it back like magic into a properly executed Regulated Credit Agreement. It's just a stale Debt going nowhere...unless a crafty DCA can bully someone into Paying that is!

 

Going back to your MBNA Card, if your Agreement is irredeemably unenforceable, i.e. has no Prescribed Terms and is an Agreement before CCA 2006, then that should be that. Nobody should be able to Enforce the original Debt. They cannot lawfully Default you either, as there is no properly executed Regulated Credit Agreement to Default. There's also nothing to Terminate.

 

Thus, if the MBNA Defaulted you, but had no evidence of ever having an Agreement, then I think that is where you must first direct your attention. Write to the Credit Reference Agencies, and make it clear that the MBNA never had any Right to Default you. Get that Default removed first, and then start on any DCA that came thereafter.

 

If the MBNA's Default Notice was also invalid as a Notice, even better. But attack the MBNA issues first.

 

Once you have nailed the MBNA and any detritus they have left on your Credit History, then turn your attention to the DCA.

 

Once you have shown that the MBNA either never had an Agreement, or Defaulted and Terminated unlawfully, then you are on your way to proving that there is no Enforceable Debt, and certainly no Debt that could be passed on carrying with it any Rights at all, irrespective of the type of Assignment.

 

To be blunt, they may as well be passing on a Turnip.

 

The DCA now has a nice Turnip, and he now wants to Default you and Terminate the Turnip. Whatever he has, it is not a Live Agreement, and it is not an Enforceable Debt. He can't Default if the thing he has is not subject to the Consumer Credit Act. Using s87(1) implies that there is a Live properly executed Regulated Agreement to Default.

 

If the Agreement has already been Terminated, then it's dead as far as Defaulting via s87(1) of the CCA goes. The question then remains, is it a Debt that can be Enforced. Do they have an Enforceable Agreement, did the OC Default it lawfully, did the OC Terminate it on the back of that lawful Default, and did the OC then Sell the Debt lawfully to the DCA.

 

If the DCA thinks the Debt is Enforceable, then he should take you straight to Court without passing Go.

 

If not, then anything he does do can be contested by you, especially if you have, by then, already nailed the MBNA by clarifying No Agreement and/or Unlawful Rescission of Contract etc.

 

The DCA is just messing around, but I do appreciate that they will be causing short term damage if they are littering your Credit Files with adverse Data. Tackle them after the MBNA, and then bring all your guns to bear at the same time: CRA complaint, Information Commissioners Office Complaint, TS Complaint, FOS Complaint etc etc.

 

Pick off your targets one by one, starting with the biggest fattest one first, namely the MBNA. Don't let them slink into the background having dumped on your Credit File and then sold on an Unenforceable Debt.

 

If I were you, I would invest £1 and send the DCA a s78(1) CCA Request, just to pin them down. Wait 12+2 Working Days and, while you are waiting, bone up on the Consumer Protection from Unfair Trading Regulations 2008, that came into force on 26 May 2008. Then wait to see what the DCA does after the 12+2 Working Days...then add that to your above Complaints.

 

I hope this helps.

 

Cheers,

BRW

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Hi

 

Does there have to be a box then.

 

I have some agreements with the wording but not in a box

 

HAK

 

Here is the preceeding FAQ from the OFT, HAK, relating to the Signature Box:

 

'6.3 Where must they sign the agreement?

Reg 6(3)(a) provides that each debtor (or a person acting on his behalf in the case of a partnership or unincorporated body) must sign the document in the space indicated for the purpose. This must be within a signature box as specified in Sch 5 – see Q6.5.

Reg 6(3)(b) provides that the creditor (or a person acting on his behalf) must sign the document outside any signature box used by the debtor. The creditor may sign within a box, but this must be separate from the box containing the debtor’s signature.

Reg 6(3)(d) provides that a witness may sign the document provided that this is outside the box containing the debtor’s signature.

6.4 Do they need to date the agreement?

Reg 6(3) provides that, in the case of a cancellable agreement (see Q4.20), the date of signature by each debtor must be inserted in the space indicated in the signature box. The date of signature by or on behalf of the creditor must be inserted outside the box.

In the case of a non-cancellable agreement (see Q4.21), the date on which the unexecuted agreement becomes an executed agreement may be inserted instead of the dates of signature. If this is not done, the dates of signature must be inserted as above.'

HAK its in 1983 (SI 1983/1553) shedule 4

 

Think B3arty might have meant Schedule 5?

 

Hope that helps your cause...:)

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Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Cheers for that.

 

So for the agreements that I have got with no signature box does this render the agreement as never have been made so basically unenforcable?

 

HAK

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Good question HAK. You would think so wouldn't you - unless your agreement is pre-1985 which I think is the effective date of the Regs in relation to the box & I suspect that it prob. wasn't retrospective.

 

Suspect that it may have to be a court decsion to make it definitive & as we have seen recently on CAG, a DJ might well rule it enforceable.

 

Perhaps a legal guy will come along & provide you with your answer in due course...:)

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Cheers for that.

 

So for the agreements that I have got with no signature box does this render the agreement as never have been made so basically unenforcable?

 

HAK

 

 

No, an agreement can be enforced by the Court if it contains the prescribed terms and your signature and certain cancellation notices were given, no matter what other errors or omissions it contains. Now, if there were numberous other errors or omissions the Court may reduce the sum it orders to pay or even make no enforcement order at all if the agreement is a mess and totally uncompliant

 

s127(2)....If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.

Lack of a signature "box" is no real defence if there is a space set out for your signature and date which you have completed.

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I've finally got my 'credit agreement' through from barclaycard. Can you peeps have a look through it and advise me where I stand?

 

I'd appreciate some insight into exactly how Barclaycard have managed to produce two credit agreements. Well, I mean I know how they've produced two, they've just printed out two sets of T&Cs and put my name on the top of the current ones. Interestingly, on the current 'credit agreement' my surname is spelled wrong, the only instnace of this spelling by Barclaycard is on the letter that came with these documents, so its obvious that this 'agreement' was just plucked from thin air. Its certainly nothing I've ever seen before!

 

Anyway, I know neither is enforceable as they don't feature my signature, but how else do they fail the requirements of the CCA 1974? And whats the best approach to making them disappear efficiently, and then cleaning up my credit record?

 

Thanks!

 

Original Agreement:

 

Original Agreement 1.jpg.JPG on Flickr - Photo Sharing!

Original Agreement 2.JPG on Flickr - Photo Sharing!

Current Agreement:

 

Current Agreement 1.JPG on Flickr - Photo Sharing!

Current Agreement 2.JPG on Flickr - Photo Sharing!

Current Agreement 3.JPG on Flickr - Photo Sharing!

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Well They try it on by sending the old agreement and the new one.

They will probably try the old trick like we dont need a signature but this only applies to agreement taken after 2006.

 

I

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And whats the best approach to making them disappear efficiently, and then cleaning up my credit record?

 

Hi Paul

 

HFK is right & sorry to say, my experience of Barclaycard is that there is no easy way to make them see sense. :evil:

 

I have just completed a LONG LONG corresp. with them which finally concluded with my sending an LBA to them at which point they capitulated. However you will see in the BC forum that they don't always roll over even when they are in the wrong & frequently get up to the court door.

 

Suggest you post in the BC forum for more detailed advice but I would start by writing back to them pointing out the error of their ways & arguments but don't be surprised if you just get a standard letter back saying 'we're right'! You just have to keep plodding or wait for them to take you to court at which point you can vigorously defend. It takes time & LOTS of patience but you'll get there in the end. :)

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Could someone take a look at Gazza's MBNA agrrement/application form in the following link please. Thank you. :)

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/159827-nat-west-default-notice-3.html#post1738273

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Hi, on the subject of post #12848 above, I read the following on another forum:

"the bank or institution that filed the default notice do not appear to have to prove that they even issued the notice in print form, never mind whether you received it or not. As long as it appears on their computer log as actioned,then I have been told by one institution that it is acceptable in a court of law?"

 

I always thought that the creditor/DCA should be able to provide a copy of the acutal default notice, much as they do with the agreement - I know that some people on here have raised this point in court and the judge was of the opinion that if the claimant could not provide the DN, then the case would be struck out.

 

The other query I have relates to NOAs, does the amount outstanding on the debt need to be shown on the notice, as I have received a copy of one, and there is no mention of how much is owed.

 

Magda

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Could someone take a look at Gazza's MBNA agrrement/application form in the following link please. Thank you. :)

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/159827-nat-west-default-notice-3.html#post1738273

 

This torn off slip or form does not comply with the Act, there are no precribed terms;

it is irredeemably unenforceable under section 127(3)

 

AC

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Hi, on the subject of post #12848 above, I read the following on another forum:

"the bank or institution that filed the default notice do not appear to have to prove that they even issued the notice in print form, never mind whether you received it or not. As long as it appears on their computer log as actioned,then I have been told by one institution that it is acceptable in a court of law?"

 

I always thought that the creditor/DCA should be able to provide a copy of the acutal default notice, much as they do with the agreement - I know that some people on here have raised this point in court and the judge was of the opinion that if the claimant could not provide the DN, then the case would be struck out.

 

The other query I have relates to NOAs, does the amount outstanding on the debt need to be shown on the notice, as I have received a copy of one, and there is no mention of how much is owed.

 

Magda

 

MAGDA,

I am given to understand that if a Default Notice has been served incorrectly and then the lender terminates; the consequence is that the purported termination is ineffective.

 

However, if the creditor brings proceedings a default notice can be rectified by discontinuing the proceedings, seving a default notice and re-issuing the claim.

 

I am given to understand by BRW that a debt that has been sold/ assigned to a DCA cannot be rectified by re-serving a NOD; BRW correct me if am I wrong.

 

With regards to a Notice of Assignment, I believe that the date and amount has to be correct, if it is not the assignment would be deemed ineffective.

A notice of assignment must be served to a debtor in person, or by recorded delivery post by the OC/Lender, the assignor.

 

AC

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MAGDA,

I am given to understand that if a Default Notice has been served incorrectly and then the lender terminates; the consequence is that the purported termination is ineffective.

 

However, if the creditor brings proceedings a default notice can be rectified by discontinuing the proceedings, seving a default notice and re-issuing the claim.

 

I am given to understand by BRW that a debt that has been sold/ assigned to a DCA cannot be rectified by re-serving a NOD; BRW correct me if am I wrong.

 

With regards to a Notice of Assignment, I believe that the date and amount has to be correct, if it is not the assignment would be deemed ineffective.

A notice of assignment must be served to a debtor in person, or by recorded delivery post by the OC/Lender, the assignor.

 

AC

 

An ineffective assignment can be rectified by serving a correctly formatted NOA, just as an ineffective NOD can be rectified in the same way.

 

There is no requirement to issue the NOA by recorded delivery - the requirement is to ensure that a NOA is sent to the debtor, not to prove that it was received. (Just as with a NOD, also)

 

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http://www.consumeractiongroup.co.uk/forum/legal-issues/159341-court-papers-received-what-2.html

 

I would be very grateful if I could have some help with my defence for the above thread. In potted form DCA taking me to court, two letters asking for the CCA have resulted in no CCA. They got the court paperwork wrong and were taking me to court for a loan and not a credit card and had my name wrong. My defence has to be in by the 9th of October, I have given them till the 4th to send me the revised POC for me to look at, but want to have a defence ready for the first POC as I will not give them the opportunity to try for a judgement by default if i am late with my defence. Also the DCA is watching my thread and reporting to the solicitor:p so I would like the final defence to be PM'd if possible:)

Any help most gratefully received.

Canaan

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MAGDA,

I am given to understand that if a Default Notice has been served incorrectly and then the lender terminates; the consequence is that the purported termination is ineffective.

 

However, if the creditor brings proceedings a default notice can be rectified by discontinuing the proceedings, seving a default notice and re-issuing the claim.

 

I am given to understand by BRW that a debt that has been sold/ assigned to a DCA cannot be rectified by re-serving a NOD; BRW correct me if am I wrong.

 

With regards to a Notice of Assignment, I believe that the date and amount has to be correct, if it is not the assignment would be deemed ineffective.

A notice of assignment must be served to a debtor in person, or by recorded delivery post by the OC/Lender, the assignor.

 

AC

 

An ineffective assignment can be rectified by serving a correctly formatted NOA, just as an ineffective NOD can be rectified in the same way.

 

There is no requirement to issue the NOA by recorded delivery - the requirement is to ensure that a NOA is sent to the debtor, not to prove that it was received. (Just as with a NOD, also)

 

Thanks for the replies both - so isn't it necessary for the claimant to be able to provide a copy of the DN in court? I ask, because someone on another thread has recently been to court and because the claimant could not provide a valid DN among the other documents produced, the judge has placed a stay on proceedings pending production of this document. I don't recall receiving a DN for several of my accounts, and I can't check if they are correct or not without actually seeing them.... thanks again, Magda

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so isn't it necessary for the claimant to be able to provide a copy of the DN in court? I ask, because someone on another thread has recently been to court and because the claimant could not provide a valid DN among the other documents produced, the judge has placed a stay on proceedings pending production of this document.

 

As finance companies/DCAs don't have to keep true copies of default notices, it seems that most DJs are willing to accept that when the companies' computerised records show a DN being sent, that's good enough. The defendant above must have been 'lucky' on their day in court. :)

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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As finance companies/DCAs don't have to keep true copies of default notices, it seems that most DJs are willing to accept that when the companies' computerised records show a DN being sent, that's good enough. The defendant above must have been 'lucky' on their day in court. :)

 

Thanks FG, yes, it certainly does seem as if that person was lucky. It seems strange when you are told that if a DN is inaccurate in any way that this can then be used in your defence - so if, for example, the default stated that you needed to pay £4000 to rectify a problem, when in fact it was £2,000, this would (in theory) render the DN invalid. The same with the actual information that needs to be contained within a default - if it's missing, or incorrect, then again the DN should be invalid. How are you supposed to know any of this without actually seeing the document and checking it - I'm sure a lot of the time the DN's actually aren't sent out at all, but if this is the case, we have no way of proving it. The cards certainly seem to be stacked against us sometimes don't they. Thanks again, Magda

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As finance companies/DCAs don't have to keep true copies of default notices

 

As a DN has to conform to the specifications of the CCA Regulations a copy must be kept in case a dispute arises, primarily to protect the issuing company. It is a legal document after all.

 

The onus I would assume would be on the issuer to prove that it conformed to the regs. if any dispute arose.

 

Very poor document management not to keep copies of legal documents and I would be arguing strongly to have the default set aside due to non-compliance with the regs unless the issuer can prove otherwise. Why should a Court assume that the DN was compliant?

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