                                                                                                            FILED
                                                                                                COURT OF APPEALS
                                                                                                          DIVISION II'
                                                                                              2015 MAR 24 AM $ ='
                                                                                                                  34
      IN THE COURT OF APPEALS OF THE STATE OF WASHI
                                                                                                                       NGTQN
                                                                                               BY            1!
                                          DIVISION II
                                                                                                                  TY

AMERICAN EXPRESS CENTURION BANK,                                        No. 45463 -7 -II


                                 Respondent,                           Consolidated with


          v.                                                             No. 45466 -1 - II




    HEINZ HENGSTLER,                                               UNPUBLISHED OPINION


                                 Appellant.


         WoRSwIcK, P. J. —   In this consolidated appeal, Heinz Hengstler appeals two superior


court orders, each granting summary judgment in favor of American Express Centurion Bank in

a separate credit card collection action. Hengstler argues that the superior court erroneously

granted summary judgment because ( 1) evidence supporting the motion, namely Richard Kier' s

affidavits and account records, were   inadmissible; ( 2) issues   of material   fact   existed; (   3)


American Express did not validate the debt as required by the Fair Debt Collection Practices

Act;'   and (4) it held Hengstler to the same standards as an attorney. Because the admissible

evidence presented by American Express did not sufficiently demonstrate the existence of

contracts with Hengstler concerning the credit card accounts on which the debt accumulated, we

reverse both summary judgment orders and remand for further proceedings.




1
    15 U. S. C. § 1692.
No. 45463 -7 -II ; Consolidated wi No. 45466 -1 - II



                                                  FACTS


       Heinz Hengstler appeals two superior court orders, each granting summary judgment in

favor of American Express Centurion Bank in separate credit card collection actions; one for the


credit card account ending in 01003 and one for the credit card account ending in 71006.

Although the superior court granted summary judgment on both actions in a single hearing, each

action had its own complaint, summary judgment motion, summary judgment order, and appeal.

We consolidated the two appeals.


A.     American Express' s Suits and Hengstler' s Responsive Motions

        In both cases, American Express filed complaints in superior court against Hengstler for

unpaid debt on credit card accounts. American Express' s counsel signed the complaints as


 Attorney for Plaintiff,"   but American Express itself did not verify the complaints .2 Clerk' s

Papers ( CP) at 2, 316. Hengstler moved to dismiss American Express' s complaints and for

summary judgment, arguing that he was " not in receipt of any document which verifies that

American Express ...   authorized    this   action or   is   even aware of   it." CP   at   4, 318. The superior


court denied Hengstler' s motions.


        In both cases, American Express moved for summary judgment, supporting its nearly

identical motions with a declaration of American Express' s attorney3 and two specific exhibits:


Exhibit 1, Kier' s affidavit with identified account records, and Exhibit 2, additional unidentified


account records from the related account.




2CR11.

3 The declaration of American Express' s attorney concerned only American Express' s request
for attorney fees.



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            In each case, two attachments accompanied Kier' s affidavits: Attachment A, which


consisted of "[     a] true and correct copy of the Cardmember Agreement in effect at the time of
                                                     4
cancellation of [Hengstler' s]           Account ";      and   Attachment B,       which consisted of "[t] rue   and



correct copies of the monthly Account Statements for [ Hengstler' s] Account for the period

ending      May ...      2012."   CP at 484, 634 -35.


            Kier' s affidavit stated he was an " Assistant Custodian of Records for American Express


Centurion Bank," had personal knowledge of American Express' s regular practices and


procedures regarding their credit card billing procedures, business practices, and recordkeeping,

and had access to and was generally familiar with American Express' s account records. CP at

482, 632. Kier' s affidavit also stated he had personally reviewed Hengstler' s account records,

and had based the statements in his affidavit on either his review of American Express' s records

or his personal knowledge. He further averred that he could competently testify to every fact

within his affidavit. Kier' s affidavit stated that all of American Express' s monthly account

statements were generated               by   computerized processes and        that "[   t] he billing statements and other

documents referred to herein were created at or near either the time of the transactions or the

time the original statements were made and have been kept by American Express in the ordinary

course of     business."      CP   at   483; 633.   The two Exhibit 2s to the motions for summary judgment,

which were not attached to Kier' s affidavits and not identified by Kier, appeared to be monthly

account statements for Hengstler' s related accounts from early 2011 through April of 2012.




4
    The "   cardmember" agreement was unsigned,                  but   stated: "   When you use the Account (or you
sign or     keep   the   card), you agree       to the terms of the Agreement."           CP at 490, 640.



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       To summarize, two exhibits supported each summary judgment motion: Exhibit 1

consisted of Kier' s affidavit and its two attachments, and Exhibit 2 consisted of unidentified


copies of several monthly statements purportedly from Hengstler' s related account.

B.     Specifics ofthe Debts Incurred on Each Account

       Kier' s affidavit supporting American Express' s summary judgment motion in the case of

the account ending in 01003 stated that based on Kier' s review of American Express' s records,

Hengstler had   opened   that   account   in 1993   and used   it to   make purchases.   The one monthly

account identified by Kier (Attachment B) covered only the one -month period ending May 20,

2012, the most recent period in the record. This statement was addressed to Hengstler' s post

office box, and showed a balance of $6, 180. 66.


        Kier' s affidavit supporting American Express' s summary judgment motion in the case of

the account ending in 71006 stated that based on Kier' s review of American Express' s records,

Hengstler had opened that account in 1996 and used it to make purchases. The one monthly

account statement identified by Kier (Attachment B) covered only the one -month period ending

May 9, 2012, the most recent period in the record. That statement was addressed to Hengstler' s
post office box and showed a balance of $25, 411. 39.


        Neither statement attached to Kier' s affidavits (Attachment B) showed any of the charges

that caused the debts to accrue. No exhibit attached to Kier' s affidavits provided any evidence

showing that Hengstler personally acknowledged either account, such as cancelled checks or

online payment documentation. And although Kier' s affidavits mention monthly billing

statements, they did not identify or reference either Exhibit 2 of American Express' s summary

judgment motions.




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No. 45463 -7 -II ; Consolidated wi No. 45466 -1 - II



C.     Hengstler' s Response to the Summary Judgment Motions, the Superior Court' s Grant of
       American Express' s Summary Judgment Motions, and Appeals

       In each case, Hengstler filed a response in the form of "objections" to American


Express'   s   summary judgment   motion,   asserting   numerous claims.   CP   at   300, 613. Hengstler did


not file affidavits or otherwise submit evidence in either case.


       The superior court resolved American Express' s summary judgment motions in both

cases in a single hearing. The superior court ruled that both Exhibit 1 s and both Exhibit 2s were

admissible under the business records exception to the hearsay rule. Based on these records, the

superior court entered an order granting American Express' s summary judgment motions. In the

case of the account ending in 01003, the order awarded American Express a total judgment in the

amount of $6, 420. 66. In the case of the account ending in 71006, the superior court awarded

American Express a total judgment in the amount of $25, 720. 89. Hengstler appealed both

orders, and we consolidated his appeals.

                                                ANALYSIS


                         I. KIER' S AFFIDAVITS AND THE ACCOUNT RECORDS


        Hengstler argues that the superior court erred by considering both Exhibit 1 s and both

Exhibit 2s. We hold that the superior court properly considered both Exhibit 1 s but erred by

considering both Exhibit 2s.




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          CR 56( e) states in part:


          Supporting and opposing affidavits shall be made on personal knowledge, shall set
          forth such facts as would be admissible in evidence, and shall show affirmatively
          that the affiant is competent to testify to the matters stated therein.

 Emphasis       added.)    We review de novo the superior court' s evidentiary decisions on summary

judgment. Farrow           v.   Alfa Laval, Inc.,   179 Wn. App. 652, 660, 319 P. 3d 861, review denied,

Farrow     v.   Flowserve US, Inc., 181 Wn.2d 1003 ( 2014).


A.        Right To Cross- Examine Kier


          As an initial matter, Hengstler argues that the superior court erred by relying on both

Exhibit 1 s because Hengstler did not receive the opportunity to cross -examine Kier at the

summary judgment hearing. We disagree.

           CR 56( c) allows the superior court to grant summary judgment without hearing

testimony, based on only " pleadings, depositions, answers to interrogatories, and admissions on

file, together    with    the   affidavits."   Only after summary judgment " should the matter proceed to

trial   and allow [ a   party] ` to   disprove such facts by cross -examination and by the demeanor of the

moving party       while   testifying. "' Am. Express Centurion Bank v. Stratman, 172 Wn. App. 667,

676, 292 P. 3d 128 ( 2012) ( quoting           Mich. Nat' l Bank v. Olson, 44 Wn. App. 898, 905, 723 P.2d

438 ( 1986)).      Thus, the superior court did not err by relying on Kier' s affidavits without

providing Hengstler an opportunity to cross -examine Kier.

B.         Business Records Exception: Account Records


           Hengstler argues that the superior court erred by ruling that the attachments to Kier' s

affidavits and the Exhibit 2s were admissible under the business records exception to the hearsay




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No. 45463 -7 -II ; Consolidated wi No. 45466 -1 - II



rule. We hold that Kier' s affidavits established the admissibility of Attachments A and B, but

did not establish the admissibility of the Exhibit 2s.

               Hearsay" is " a statement, other than one made by the declarant while testifying at the

trial   or    hearing,   offered   in   evidence    to    prove   the truth   of   the   matter asserted."   ER 801( c).


Hearsay is inadmissible unless it comes within an exception established by statute or common

law. ER 802; State v. Kirkpatrick, 160 Wn.2d 873, 881, 161 P. 3d 990 ( 2007).


              Business records of regularly conducted activity are an exception to the hearsay rule.

State    v.   Iverson, 126 Wn.          App. 329,   337, 108 P. 3d 799 ( 2005). RCW 5. 45. 020 governs


admission of        business    records     in Washington State.          126 Wn. App. at 337. RCW 5. 45. 020 states:

              A record of an act, condition or event, shall in so far as relevant, be competent
              evidence if the custodian or other qualified witness testifies to its identity and the
              mode of its preparation, and if it was made in the regular course of business, at or
              near the time of the act, condition or event, and if, in the opinion of the court, the
              sources of information, method and time of preparation were such as to justify its
              admission.




              Thus, on summary judgment, the custodian of the records or other qualified witness must

aver    to ( 1) the   record' s    identity, ( 2)   its   mode of preparation, (          3) if it was made in the regular


course of business, and ( 4) if it was made at or near the time of the act, condition, or event.


RCW 5. 45. 020; Discover Bank                v.   Bridges, 154 Wn.        App.      722, 726, 226 P. 3d 191 ( 2010). If the


affidavit touches upon each of these elements in regards to a record, that record is generally

admissible. See 154 Wn. App. at 726.

              Kier, as the assistant custodian of records for American Express, was a qualified witness


under the statute. Additionally, Kier' s affidavit in each case stated that ( 1) Attachment A to his

affidavit was a true and correct copy of the " cardmember" agreement and Attachment B was a

true    and correct      copy   of   monthly      statements, (    2) the monthly account statements were made by a


                                                                      7
No. 45463 -7 -II ; Consolidated wi No. 45466 -1 - II



computerized process, (    3) Hengstler' s account records were made in the regular course of


business, and ( 4) they were made at or near the time of the act, condition, or event. Thus,

because Kier' s affidavits established the foundation for admissibility of Attachments A and B,

the superior court properly ruled Attachments A and B admissible under the business records

exception to the hearsay rule.

         Kier' s affidavits did not reference or identify either Exhibit 2, did not aver to the identity

of either Exhibit 2, or establish any of the other required foundational elements regarding these

exhibits. Thus, the superior court erred by considering them when determining whether

summary judgment was proper.5
                                   II. GENUINE ISSUES OF MATERIAL FACT


         Hengstler argues that American Express was not entitled to summary judgment because it

could not show an absence of genuine issues of material fact. We agree because the Exhibit 1 s


alone were insufficient to demonstrate the existence of a contract between Hengstler and


American Express concerning the credit card accounts at issue.

         We review summary judgment orders de novo. Ranger Ins. Co. v. Pierce County, 164

Wn. 2d 545, 552, 192 P. 3d 886 ( 2008).         Summary judgment is appropriate if, when viewing the

facts in the light most favorable to the nonmoving party, there are no genuine issues of material

fact   and   the moving party is   entitled   to judgment    as a matter of   law. CR 56( c); Ranger Ins. Co.,




5 Hengstler argues American Express Centurion Bank never employed Kier. It appears
Hengstler is referring to Kier' s declaration supporting American Express' s initial, withdrawn
summary judgment motions, in which Kier stated that he was the " Assistant Custodian of
Records for American Express Travel Related Services               Company,      Inc.... [   which] is the parent
of   American Express Centurion Bank."           CP at 15. But in Kier' s affidavits attached to the
summary judgment motions at issue here, Kier stated that he was the Assistant Custodian of
Records for American Express. Thus, Hengstler' s argument fails.


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No. 45463 -7 -II ; Consolidated wi No. 45466 -1 - II



164 Wn.2d at 552. A genuine issue of material fact exists when reasonable minds could reach

different conclusions. Michael v. Mosquera—Lacy, 165 Wn.2d 595, 601, 200 P. 3d 695 ( 2009).

          In a summary judgment motion, the moving party initially bears the burden of submitting

adequate affidavits      showing that it is    entitled   to judgment as a      matter of   law. 165 Wn.2d at 601;


Ranger Ins. Co.,    164 Wn.2d at 552. If the moving party does not sustain its burden, the superior

court should deny summary judgment " regardless of whether the nonmoving party has submitted
affidavits or other evidence      in   opposition   to the   motion."    Hash v. Children' s Orthopedic Hosp.

  Med. Ctr., 110 Wn.2d 912, 915, 757 P. 2d 507 ( 1988).


          To be entitled to summary judgment on its claims that Hengstler is responsible for debt

on credit card accounts, American Express was required to demonstrate the existence of a


contract with Hengstler concerning the credit card accounts on which the debt accumulated.

Bridges, 154 Wn. App. at 728. A valid contract requires an objective manifestation of mutual

assent   to its terms,   which   generally takes the form        of offer and acceptance.       Yakima County ( W

Valley)   Fire Prot. Dist. No. 12      v.   Yakima, 122 Wn.2d 371, 388, 858 P. 2d 245 ( 1993).            The


offeror is the master of the offer and may propose acceptance by conduct. Discover Bank v. Ray,

139 Wn. App. 723, 727, 162 P. 3d 1131 ( 2007).

          Here, American Express' s unsigned cardmember agreements in the identified account

records provided that the use of the credit card constituted acceptance of its terms:

          When   you use    the Account ( or you sign or          keep   the   card),   you agree to the terms
          of the [ Credit Card] Agreement.


CP at 490, 640.




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No. 45463 -7 -II ; Consolidated wi No. 45466 -1 - II



         Because the cardmember agreements were unsigned, they did not, by themselves, prove

the existence of a contract. But even in the absence of a signed agreement, establishment of a


defendant' s personal acknowledgement of a credit card account is prima facie proof of assent to


the terms of usage offered by the bank. See Bridges, 154 Wn. App. at 727. Thus, the question

before us is whether the identified account records, the only account records the superior court

could consider, provided sufficient evidence to demonstrate Hengstler personally acknowledged

the debt on the credit card accounts. Our analysis is guided by three cases.

         In Ray, the bank supported its motion for summary judgment with four years' worth of

self -generated monthly account statements, a copy of an apparently unsigned cardmember

agreement, and several cancelled checks            that the   defendant had   sent as payment on    the debt.   139


Wn.   App.    at   725.   In affirming summary judgment, Division Three of this court held this

evidence sufficient to establish that the defendant used his credit card and thereby assented to the

cardmember agreement' s          terms.   139 Wn. App. at 727.

         But in Bridges, we reversed the superior court' s grant of summary judgment in the bank' s

favor.   154 Wn. App. at 728. In Bridges, as in Ray, the bank provided copies of self generated
                                                                                      -

monthly account statements for a period of two years and an unsigned cardmember agreement.

Bridges, 154 Wn. App. at 724, 727. But the statements provided only a summary of the account

balance   and payments made, which          did   not constitute "   detailed, itemized   proof of ...   card



usage"   by   the defendants.     154 Wn. App. at 727. Furthermore, unlike in Ray, the bank did not

provide any evidence that the defendants " acknowledged the debt, for example, through evidence

of cancelled checks or online payment             documentation."     Bridges, 154 Wn. App. at 727. Because

the bank did not produce any " evidence of the [ defendant' s] personal acknowledgment of the



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account" similar to the cancelled checks in Ray, the evidence was insufficient to establish assent.

Bridges, 154 Wn. App. at 728.

         In Citibank South Dakota, NA          v.   Ryan, 160 Wn.   App.   286, 247 P. 3d 778 ( 2011),   we




reversed a summary judgment order in favor of Citibank based on similar facts as in Bridges.

The bank submitted copies of 13 months' worth of account statements and an unsigned


cardmember agreement.          160 Wn. App. at 288. The monthly account statements indicated that

payments to the account were made but did not show " how the payments were supposedly

made" and did not " cover the period in which the card was first issued or the majority of the debt

was accumulated."       160 Wn. App. at 288. Based on Bridges, we held that " the bare notation of

supposed payments on the [ monthly] account statements Citibank provided" was not sufficient to

prove   that the   defendant   made   the   payments.   Ryan, 160 Wn.      App.   at   293. We also rejected the


bank' s claim that it had established use of the card:


         None of the notations on the statements offered by Citibank here actually explained
         what the supposed purchase was or who it was from. Nor is it clear whether these
         were individual " purchases" or were only total amounts for the period covered by
         the statement. Moreover, these supposed purchases did not add up to anything near
         the total Citibank claimed was owed on the card. And the account statements did
         not otherwise provide a basis to match the listed amounts with any particular charge
         slip or purchase. The materials Citibank provided thus did not constitute the
         detailed and itemized documentation required by Bridges. [61



6 American Express cites Stratman in support of its position. In Stratman, Division One of this
court affirmed summary judgment in the bank' s favor, holding that monthly account statements,
standing alone, were sufficiently detailed and itemized to prove that the claimed debt arose from
card usage. 172 Wn. App. at 674. But the defendant in Stratman did not raise the issue of the

bank' s proof that she personally acknowledged the debt. See 172 Wn. App. at 674. Thus, we do
not read Stratman as excusing the bank from presenting, in the absence of a signed cardmember
agreement, some other evidence showing that the defendant personally used the card or other
such evidence of personal acknowledgement.
No. 45463 -7 -II ; Consolidated wi No. 45466 -1 - II



Ryan, 160 Wn. App. at 293.

         Here, Kier' s affidavits identified the unsigned credit card agreement and one monthly

account statement addressed to Hengstler' s post office box. These records showed no specific

charges for any items, did not reveal how the debt was accumulated, and did not include any

cancelled checks or online payment documentation showing that Hengstler himself

acknowledged the debt on the credit card accounts. Because these records did not reveal how the


debt was accumulated and did not contain any other evidence of Hengstler' s personal

acknowledgment of the debt, American Express did not provide sufficient evidence to


demonstrate the existence of a contract with Hengstler concerning the credit card accounts on

which    the   debt   accumulated.?   Therefore, we hold the superior court erred by granting summary

judgment in American Express'          s   favor. Because we resolved this issue in favor of Hengstler,


we need not consider Hengstler' s remaining arguments. But because the issues are likely to

recur on remand, we consider and reject Hengstler' s arguments that American Express failed to


validate Hengstler' s debt and that pro se pleadings are to be construed liberally.



7 In addition to arguing that sufficient proof of assent exists, American Express relies on the
 account stated" doctrine to demonstrate the existence of a contract with Hengstler. Br. of
Resp' t at 15. An "` account stated ' is "' a manifestation of assent by debtor and creditor to a
stated sum as an accurate computation of an amount due the creditor. A party' s retention
without objection for an unreasonably long time of a statement of account rendered by the other
party is a manifestation of assent. "' Nw. Motors, Ltd. v. James, 118 Wn.2d 294, 304, 822 P. 2d
280 ( 1992) ( quoting RESTATEMENT ( SECOND) OF CONTRACTS § 282 ( 1981)). But an account
stated determines the amount of a debt, where some preexisting liability existed. It does not in
and of   itself     primary obligation. 118 Wn.2d at 302; Assoc. Petroleum Prods., Inc. v. Nw.
                  create a

Cascade, Inc., 149 Wn. App. 429, 437, 203 P. 3d 1077 ( 2009). Because American Express did
not provide sufficient evidence to demonstrate the existence of a contract with Hengstler
concerning the credit card accounts on which the debt accumulated, it did not provide sufficient
evidence to establish a primary obligation. Thus, we do not consider whether the debts' specific
amounts were established under the account stated doctrine.




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            III. VALIDATION OF DEBT UNDER THE FAIR DEBT COLLECTION PRACTICES ACT


          Hengstler argues that summary judgment was improper because American Express failed

to   validate   Hengstler'     s   debt   pursuant   to 15 U.S. C. § 1692, the Fair Debt Collection Practices Act.


We disagree.


          15 U. S. C. §      1692 applies only to debt collectors, which are entities who regularly collect

debts for others, not creditors who are collecting debts on their own behalf. Ray, 139 Wn. App.

at 727. Here, American Express is a creditor attempting to collect debts on its own behalf, not a

debt collector collecting debts for another. Thus, because American Express is not a debt

collector subject to the Fair Debt Collection Practices Act, Hengstler' s claim fails.

                                                     IV. PRO SE PLEADING


          Hengstler argues that the superior court erred by holding him to the same standards as an

attorney, when federal law requires that pro se pleadings are to be construed liberally. We
disagree.


          In federal court, pro se pleadings receive liberal construction. Pouncil v. Tilton, 704 F. 3d

568 ( 9th Cir. 2012); see Haines v. Kerner, 404 U. S. 519, 520 -21, 92 S. Ct. 594 30 L. Ed. 2d 652


 1972).    But in Washington courts, a superior court " must hold pro se parties to the same

standards       to   which   it holds     attorneys."   Edwards v. Le Duc, 157 Wn. App. 455, 460, 238 P. 3d

1187 ( 2010).         This is a procedural rule. Federal procedural rules do not control in state courts.

Adams     v.   LeMaster, 223 F. 3d 1177, 1182             n. 4   ( 10th Cir. 2000). Thus, the Washington rule


applies and the superior court held Hengstler to the proper standard. 8



8 We note that even if the superior court could have properly considered the Exhibit 2s, summary
judgment would still have been inappropriate. The Exhibit 2s contained monthly account
statements showing small, specific charges for certain items, including the date and amount of

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No. 45463 -7 -II ; Consolidated wi No. 45466 -1 - 11



        We reverse both summary judgment orders and remand for further proceedings.9

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




                                                                                        d°'#.
                                                                      f,




                                                                      Worswick, P. J.
 We concur:




individual purchases made and the name of the entity from which the goods or services were
purchased. But they did not show charges made prior to 2011, despite the account in each case
being opened in the mid- 1990' s, and did not reveal how the vast majority of debt on the credit
card accounts was accumulated. They did not show charges that, from the record, could be
attributed only to Hengstler sufficient to show that he personally acknowledged and assented to
the terms of the credit card agreement. Furthermore, they did not include any cancelled checks
or online payment documentation showing Hengstler himself acknowledged the debt.

9 Without explanation, Hengstler argues the superior court lacked subject matter jurisdiction due
to the superior court' s misapplication of the rules of civil procedure, alleged ultra vires actions of
American Express, Kier' s failure to testify at the summary judgment hearing, and the failure of
American Express' s attorney to prove that American Express authorized the suit. Because
Hengstler failed to cite any authority supporting these subject matter jurisdiction arguments, we
do not consider them. Pappas v. State Employment Sec. Dep' t, 135 Wn. App. 852, 858, 146 P. 3d
1208 ( 2006).



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