Jason Wins In Court

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Tuco
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#1 Jason Wins In Court

Post by Tuco » 15 Aug 2016 13:28

Just had news that jason has won in court this morning.

No details yet.

It involved a car that had been taken from a disabled person. Legal could not take the case so jason stepped in.

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#2 Re: Jason Wins In Court

Post by Tuco » 15 Aug 2016 13:51

just got through to Jason.

Costs awarded to the client, Jason was given right of audience.

As ever, this forum is at the forefront for challenging unlawful bailiff actions.

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#3 Re: Jason Wins In Court

Post by Michelle » 15 Aug 2016 13:57

That's excellent news, would be even better if the client was willing to post up their story so others can read all the details. Is there any chance of he/she being invited to do so?
Listen very carefully, I shall post this only once:
Anything posted by me is from my own knowledge and experience, it is not legal advice or the official views of this forum.

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#4 Re: Jason Wins In Court

Post by Tuco » 15 Aug 2016 14:11

Not sure, lets let Jason comment when he gets home later.

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#5 Re: Jason Wins In Court

Post by Tuco » 15 Aug 2016 14:11

he's posted in the success stories

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#6 Re: Jason Wins In Court

Post by Tuco » 15 Aug 2016 16:59

The HP case has been lost.

Jason was in court (although not acting). I'll leave it to him to give a first hand account.

It transpires that this case was in fact the one that was discussed previously in numerous threads over on CAG

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#7 Re: Jason Wins In Court

Post by Schedule 12 » 15 Aug 2016 18:14

Confirmed.

The reason is the court made a finding the payments represented a "cumulative" interest and that amounts to beneficial interest.

The noteworthy point now stands with Newlyn are stuck with a vehicle they cannot sell because good title does not pass to the buyer. Paragraph 51 of Schedule 12.

Newlyn valued the car £4500 but changed that to £15000. I was not aware of the switch until today.

Newlyn. Eric Clapton Wannabe Bailiff-can-take-my-hire-purchase-car representing took several cheap digs athe me personally but was ignored by the judge. One was about Eric Clapton Wannabe West representing Barclays bank and I was actively involved in Reiss v Barnet. The court needed to be advised Mr. Bailiff-can-take-my-hire-purchase-car was representeducated Newlyn Plc in that case as well and involved beneficial interest.

The Claimant wants to appeal because the courts finding contradicts paragraph 10 and paragraph 3 (2)(b) of Schedule 12 and the wording of the finance document which says the lender owns the goods until the final payment is made.

A circuit judge will be called to untangle it.
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#8 Re: Jason Wins In Court

Post by Justanotherperson » 15 Aug 2016 18:36

Hello, I read this forum with interest from time to time and my post relates to the HP case that was lost. Was there any case law used in relation to the fact that the HP goods belong to third party and the person using the car is just a "hirer" and clearly a hirer does not derive any interest at all. To hold a hirer liable would mean that anyone renting a car amounts to a beneficial interest which is clearly absurd.

I also wonder whether inducement to breach the contract was pleaded by the taking of the car? Almost all HP agreements I am aware of stipulates that a seizure of the car will be a material breach and allows for termination of the contract.

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#9 Re: Jason Wins In Court

Post by Schedule 12 » 15 Aug 2016 18:48

You are right and it was mentoned today. The contract is breached only if the hirer ALLOWS the goods to be taken into control. The hirer in this case dI'd not allow the car to be taken into control.

The case law mentioned was Singh v Sandy but it predates paragraph 10 of Schedule 12 so it was disregarded.

Part of the beneficial interest argument was Newlyn admitting to routinely taking HP cars all the time and by stopping HP cars being controlled will enable drivers to escape schedule 12. That argument fails because it's easier to put a disabled badge in the car or register it in a Ltd company. Taking out an HP is a lot of work to escape schedule 12.
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#10 Re: Jason Wins In Court

Post by Tuco » 15 Aug 2016 19:08

I personally agree with Newlyn on this. If there is equity after the hirer has been bought out then that money should go towards the debt.

My problem is that Newlyn are clamping cars where there is no equity, and leaving them clamped for long periods of time (as we saw in Reiss). This is clearly wrong.

What you have to consider now is that the judges in 3 separate cases have all formed the same opinion. I know that many armchair lawyers on the internet will beg to differ but there is a pattern forming here.

An appeal in this case (which going by what the crank has posted about it elsewhere is dodgy anyway) will set a precedent.

Personally, I think everyone should dust themselves down and move on. A failed appeal (and most appeals fail) sets a precedent. lets leave it and go again another day. Newltn are hardly likely to get hold of such an expensive HP motor again.

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#11 Re: Jason Wins In Court

Post by Pote Snitkin » 15 Aug 2016 19:15

jasonDWB wrote:You are right and it was mentoned today. The contract is breached only if the hirer ALLOWS the goods to be taken into control. The hirer in this case dI'd not allow the car to be taken into control.
I would argue that would be interpreted as 'allowing to happen', ie not paying a debt, rather than 'consenting' to be taken. It would be interpreted as 'not preventing something to happen'.
On 29/07/17, Compo said "If you are interested I actually typed the word label. My spell checker interpreted it as liable" Discuss.

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#12 Re: Jason Wins In Court

Post by Schedule 12 » 15 Aug 2016 19:26

He didn't allow it. He injuncted to stop the action. The court accepted he did not allow the car to be controlled.

I think we need to clear up the definition of beneficial interest. I understand this to having an ownership in something. For example two people co owning a property. Each has a benef8cial interest in it

The HP car is exclusively owned by the lender
There's no beneficial interest.

Mark yout thoughts are diffrtent. What's your understanding of beneficial interest?
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#13 Re: Jason Wins In Court

Post by Tuco » 15 Aug 2016 19:39

Jason. My feeling is that if someone owed me some money but told me that they couldn't pay, whilst at the same time continuing to pay hefty instalments down on a HP agreement, I wouldn't be very happy. Especially, if 6 months down the line, that person could purchase a £10k car for £75. In my eyes, that is a beneficial interest.

The interest of the hirer can be bought out, leaving a balance which could pay the creditor.

The contract is irrelevant provided that the HP company is kept onside and that repayments are kept up to date.

Regardless of the beneficial interest, the car can not be sold in any case. Newlyn have to obtain permission of the hirer first.

If I was this debtor, I would prefer to lick the boots of the hirers, rather than appeal the beneficial interest decision.

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#14 Re: Jason Wins In Court

Post by Schedule 12 » 15 Aug 2016 20:03

The hirer is the Claimant.

The lender won't give permission to sell. They always want it back because it's company stock.

Your understanding of beneficial interest means a council tenants has beneficial interest in their council house because theye have the option to buy it.
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#15 Re: Jason Wins In Court

Post by Pote Snitkin » 15 Aug 2016 20:19

jasonDWB wrote: Your understanding of beneficial interest means a council tenants has beneficial interest in their council house because theye have the option to buy it.
I don't think that's the same thing. Someone having a car on HP may be looking to own the car at the end of the contract or upgrading to a new model. A council house tenant may never be intending to own the property. A different analogy is needed.

We all know what is trying to be said - a HP car isn't owned by the hirer so p10 should kick in. However, it's not happening - judges are not agreeing.
On 29/07/17, Compo said "If you are interested I actually typed the word label. My spell checker interpreted it as liable" Discuss.

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#16 Re: Jason Wins In Court

Post by Schedule 12 » 15 Aug 2016 20:37

I think we need to define beneficial interest. My definition seems to be wrong if Tuco's position is right.

If my understanding of beneficial interest is wrong then the whole HP defence is flawed and bailiffs can take them. Why do bailiffs do an HPI check then?

The judge made a finding that beneficial interest is the hirer paying money into the HP with the "intention" of owning it.

I dispute this because I've always understood beneficial interest to mean having an ownership in something.

Schedule 12 provides fro the taking of co owned good. Not hired goods. The judge asked both parties for authority on the treatment of hire purchase goods in Schedule 12. There is none. I argue no authoriry is needed because Parliament has already made it clear In paragraphis 10..

It is a very unambiguous statement in plain English.
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#17 Re: Jason Wins In Court

Post by Pote Snitkin » 15 Aug 2016 21:08

jasonDWB wrote: The judge made a finding that beneficial interest is the hirer paying money into the HP with the "intention" of owning it.
It's hard to argue against that. HP was originally set up to allow someone to use goods before they actually own them, on the tick as they used to say. You get the goods upfront and pay it off gradually. It's hard to argue against that goods on an HP agreement that's a long way in would not hold some monetary value to the hirer.

What needs to be addressed is Newlyn taking all HP cars and dealing with BI later.
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#18 Re: Jason Wins In Court

Post by Justanotherperson » 15 Aug 2016 21:11

Osbornes concise dictionary of law says this about beneficial interest: The interest of a beneficial owner or beneficiary under a trust.

Beneficial owner: The person who enjoys or who is entitled to the benefit of property being entitled both at law and in equity.

Unfortunately this does not sit well with a hire purchase agreement because the debtor is a hirer and under the CCA a hire purchase is deemed as a bailment of goods. A bailment is mere possession and does not confer any right or ownership. To say a debtor under a HP agreement has a beneficial interest is simply wrong because you are making the presumption that they will hire the goods but ultimately you don't know. They could simply hirer for 3 years and then take out another car for 3 years on hire. Given the fact that the option to purchase under HP agreements are substantial, it would be difficult to make that presumption.

Equally, House of Lords case Helby v Matthews 1895 confirmed that a HP agreement is not an agreement to buy: "An agreement to buy imports a legal obligation to buy. If there was no such legal obligation, there cannot, in my opinion, properly be said to have been an agreement to buy ... In such a case how could it be said that he had agreed to buy when he had not only come under no obligation to buy, but had not even made up his mind to do so?"

So this argument about beneficial interest is defunct to me. There is also a book I read called Powers of Distress by John Kruse printed in about 2009/10 which also confirmed that goods or chattels subject to a hire or leasing agreement cannot be seized which includes goods that are in possession of the debtor. I appreciate it is prior to the 2014 changes but if the government papers have stated specifically that hire purchase goods cannot be seized then that is simply the intention of parliament under this legislation and the courts should take that into account.

Then we have the interfering of the goods by the bailiff, if there is no inducement to breach then there can be a loss caused by unlawful means i.e. the intention of the bailiff breaching deliberately causing a breach under the terms of the HP agreement and thus causing loss to the debtor as well as not having the right of possession.

Correct me if I am wrong but there is already wording which relates to co-ownership and someone who has a beneficial interest would fall under co-ownership. You can't liken a bailment of goods to co-ownership because the bailee simple retains possession for a limited time.

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#19 Re: Jason Wins In Court

Post by Tuco » 15 Aug 2016 21:17

I think we've had this argument elsewhere haven't we?

That's another judge who disagrees with you, unless you think it's another judge who got it wrong.

Perhaps you and PeterBard should act in the next case?

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#20 Re: Jason Wins In Court

Post by Schedule 12 » 15 Aug 2016 21:32

Justanotherperson wrote:Osbornes concise dictionary of law says this about beneficial interest: The interest of a beneficial owner
That's my thoughts as well.

Justanotherperson wrote: or beneficiary under a trust.
Excluded under paragraph 3(2)(b)
  • (b)references to goods of the debtor do not include references to trust property in which either the debtor or a co-owner has an interest not vested in possession.



Justanotherperson wrote: Beneficial owner: The person who enjoys or who is entitled to the benefit of property being entitled both at law and in equity.
Agreed, but does not apply to this case because he does not own it


Justanotherperson wrote: Unfortunately this does not sit well with a hire purchase agreement because the debtor is a hirer and under the CCA
I am not sure whether the contract in this case is a CCA regulated one.


Justanotherperson wrote: a hire purchase is deemed as a bailment of goods. A bailment is mere possession and does not confer any right or ownership.
Agreed.

Hence, section 3 of the Torts (Interference with Goods) Act 1977




Justanotherperson wrote: To say a debtor under a HP agreement has a beneficial interest is simply wrong because you are making the presumption that they will hire the goods but ultimately you don't know. They could simply hirer for 3 years and then take out another car for 3 years on hire. Given the fact that the option to purchase under HP agreements are substantial, it would be difficult to make that presumption.
I am of the same opinion.



Justanotherperson wrote: Equally, House of Lords case Helby v Matthews 1895 confirmed that a HP agreement is not an agreement to buy: "An agreement to buy imports a legal obligation to buy.
Can you give me the judgment to Helby v Matthews 1895. It might give a definition.


Justanotherperson wrote: If there was no such legal obligation, there cannot, in my opinion, properly be said to have been an agreement to buy ... In such a case how could it be said that he had agreed to buy when he had not only come under no obligation to buy, but had not even made up his mind to do so?"
I think Newlyn seeks to impose the option to purchase by force. My position is Schedule 12 does not provide for bailiffs to force a hirer to be forced into exercising a right to buy.


Justanotherperson wrote: So this argument about beneficial interest is defunct to me. There is also a book I read called Powers of Distress by John Kruse printed in about 2009/10 which also confirmed that goods or chattels subject to a hire or leasing agreement cannot be seized which includes goods that are in possession of the debtor.
I might well approach him for his opinion.



Justanotherperson wrote: I appreciate it is prior to the 2014 changes but if the government papers have stated specifically that hire purchase goods cannot be seized then that is simply the intention of parliament under this legislation and the courts should take that into account.
Parliament has not put it in those words, It only says the bailiff may only take control of the goods of the debtor.


Justanotherperson wrote: Then we have the interfering of the goods by the bailiff, if there is no inducement to breach then there can be a loss caused by unlawful means i.e. the intention of the bailiff breaching deliberately causing a breach under the terms of the HP agreement and thus causing loss to the debtor as well as not having the right of possession.

Correct me if I am wrong but there is already wording which relates to co-ownership and someone who has a beneficial interest would fall under co-ownership.
Schedule 12 does specially provide for taking control of co-owned goods, and regulations specify how the co-owner is compensated from the proceeds


Justanotherperson wrote: You can't liken a bailment of goods to co-ownership because the bailee simple retains possession for a limited time.
The HP bank is being approached. Newlyn said at Court the HP company has been contacted, but its unknown what their position is at this time.

I can go by historical cases of HP cars taken.

A Jaguar sports car was nabbed, no court proceedings brought. The hirer reported it taken and when a new keeper tried to get a V5, the lender sent a truck at 4am and lifted it from outside the new keepers address. If the buyer tried to sue, it would fail under Paragraph 51 because the goods must be of the debtor for good title to pass.

Marston nabbed a BMW awaiting repair outside a dealership. The dealership recovered the car when someone visited another BMW dealership to get new keys made. No court proceedings. The car was returned to the hirer and it had a new gearbox to boot. That was allowable under section 6 of the Torts Act 1977. Someone not only lost their car, but lost the money they paid for a new gearbox.

This proceeding nearly settled out of court. But Newlyn demanded fees and charges too high to be affordable. Now Eric Clapton Wannabe Bailiff-can-take-my-hire-purchase-car has estopped himself saying the claimant is a 'man of straw'. Eric Clapton Wannabe is right, the claimant livelihood was taken away by Newlyn over a parking ticket. He is now supported by public handouts.
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#21 Re: Jason Wins In Court

Post by Justanotherperson » 15 Aug 2016 21:35

Perhaps we have?

Well yes in my opinion the judge has got it wrong. At the end of the day the judge appears to have disregarded what the law says. I don't think we disagree in that it says clearly bailiffs cannot take goods which belong to/owned by third parties. There's no reference as I recall defining beneficial interest. IF 100% of the goods are owned by the third party then how can beneficial interest/ownership (which would mean the debtor has a right to the goods) apply?

The debtor under HP is paying to hire the goods over a long period and that's it. It is wrong, as per Helby v Matthews to make the presumption that a debtor is going to purchase the car. If I take out a car on HP and the option to purchase is £25k yet my income is only £3,000 per month could you honestly say that I have an intention to purchase the car? It's more likely that I am not going to given the monthly income. Therefore you cannot make that presumption.

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#22 Re: Jason Wins In Court

Post by Pote Snitkin » 15 Aug 2016 21:36

Perhaps we need to establish whether debtors have HP or PCP. It may be that each case needs to taken on it's own merits.
On 29/07/17, Compo said "If you are interested I actually typed the word label. My spell checker interpreted it as liable" Discuss.

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#23 Re: Jason Wins In Court

Post by Justanotherperson » 15 Aug 2016 21:51

Helby v Matthews link -> http://expirebox.com/download/c56e3c439 ... 6f908.html

John Kruse extract -> http://expirebox.com/download/ed1f513ec ... 37810.html

@Jason I gave the definition of beneficial owner because Osborne's referred to interest as the same meaning as a beneficial owner, so in apply that definition beneficial interest/owner does not apply because it implies that the hirer has a right to the car when he does not. He only does so when he takes the option to purchase.

If Newlyn are trying to force the option to purchase how can they do so if they are not privy to the contract? That again would be causing loss by unlawful means. This link here researchbriefings.files.parliament.uk/documents/SN04103/SN04103.pdf is a report by parliament on the regulations of bailiffs just before the implementation of the updated legislation - pages 5-6 are relevant and useful. So unless something changed between 2013 and the coming into force of the new sections (which I don't believe there has been) then its quite clear that parliament's intention was that no goods belonging to a third party can be seized.

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#24 Re: Jason Wins In Court

Post by Schedule 12 » 15 Aug 2016 21:52

I don't know what PCP is, but I have bought cars on HP.

What Justanotherperson puts forward amounts to contingent beneficial interest. Nothing in schedule 12 provides for contingent beneficial interest.

That is not addressed in Schedule 12, so I don't think that would work. Peters arguments were, among other things:
  • HP on a car is akin to a legal charge (mortage) on a house. The beneficial interest is the "ownership" of the equity in that house.

    There is £7400 outstanding, and Newlyns valuation of £4500 was retracted and replaced with £15000.

The appeal was initially refused, but eventually allowed after it was pointed out, there is an error of law and an error of fact.
  • The error of law was the court's use of paragraph 3 (2) (b) and Paragraph 10 of Schedule 12 and said the claimant is a co-owner (has beneficial interest).

    The error of fact is the courts misunderstanding of what beneficial interest in the relationship of the Hire Purchased car without the final payment being made.
Eric Clapton Wannabe originally claimed £12000 in costs, reduced to £3500. The court found he had spent a lot of resource researching the regulation 4 £1350 trade goods allowance, but the claimant had not interpleadered the car as exempt goods. The £1350 matter has already been defeated because the car is the ONLY exempt goods and the allowance provided under regulation 4 was not adhered by the bailiff. The court made the bailiff truck my clients car all the way back again.

He also asked the court to apply CPR 85 "exception disbursements"/ Dismissed because he was unable to show any.
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#25 Re: Jason Wins In Court

Post by Schedule 12 » 15 Aug 2016 21:57

Justanotherperson wrote:
John Kruse extract -> http://expirebox.com/download/ed1f513ec ... 37810.html
The John Kruse, one is interesting, but it worries me this is pre-schedule 12. His knowledge is encyclopaedic but its all old skool common law. Schedule 12 straightened it all up. It essentially re-wrote the rule book.

For me, Schedule 12 is the 10 commandments of civil enforcement, and today one of those commandments was contradicted by a judge.
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#26 Re: Jason Wins In Court

Post by Pote Snitkin » 15 Aug 2016 21:59

jasonDWB wrote:I don't know what PCP is, but I have bought cars on HP. But I haven't done it recently.
They are both a form of HP - 'normal' HP is paying a deposit then paying monthly payments that include both 'equity' and interest. PCP is the one with the balloon payment at the end - the monthly payments are essentially interest and lower than normal HP.

'HP' seems to be the catch-all term for these agreements, but a PCP agreement would easily be used to counter the BI argument. The monthly payments are not going towards paying anything off.
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#27 Re: Jason Wins In Court

Post by Schedule 12 » 15 Aug 2016 22:03

There is no balloon payment. Just an admin charge to transfer ownership from bank to purchaser. I don't know if this is the case in this proceeding, but goods financed by a lender had the goods owned by the company and listed in the memorandum.

That needs to be discovered.
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#28 Re: Jason Wins In Court

Post by Justanotherperson » 15 Aug 2016 22:11

a HP agreement specifically outlines in the contract that the person is a hirer, not a buyer or purchase or conditional purchaser but a hirer. The hirer is paying for the use of the car over a period of time, which will cover the depreciation of the car and then some but you can't treat that as the same as an interest. The same principle applies if you hire a car from Enterprise over 3 years, it does not mean that you have a beneficial interest but that you are simply hiring it.

The only way that beneficial interest might apply is where the agreement is on conditional sale agreement. The difference between a conditonal sale and hire purchase is that under a conditional sale you are obliged to make all of the payments including the final instalment.

There's a ton of case law on the meaning of beneficial interest which is the same meaning as equitable interest - you might not be the legal owner but you have a right to the property or goods in some way. It all turns on what is written on the contract if the debtor is defined as a hirer, I struggle to see how that can mean a co-owner or owner of any kind

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#29 Re: Jason Wins In Court

Post by Justanotherperson » 15 Aug 2016 22:16

Just to add looking at Schedule 12, interest is defined as beneficial interest then it goes on to say co-owner means in relation to goods of the debtor means a person other than the debtor who has an interest in the goods.

Two things stick out at me here, interest in that sentence is linked to co-owner which means more than one person has ownership and secondly it also says in relation to goods of the debtor. Again, title of the goods under HP is retained by a third party so how can the debtor have an interest (beneficial interest) or be a co-owner of the goods if they don't belong to him in the first place?

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#30 Re: Jason Wins In Court

Post by Tuco » 15 Aug 2016 23:06

Never mind the beneficial aspect, let's get down to the nitty gritty.

Did Bailiff-can-take-my-hire-purchase-car use his customary "Man of straw" phrase to describe the debtor?

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#31 Re: Jason Wins In Court

Post by Schedule 12 » 16 Aug 2016 08:32

Yes he did.
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#32 Re: Jason Wins In Court

Post by Tuco » 17 Aug 2016 17:28

jasonDWB wrote:Yes he did.
Is this the debtor?


https://www.youtube.com/watch?v=wg66kwRnOpw

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