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MISSION STATEMENT: I believe that the mortgage crisis has produced manifest evil and injustice in our society. I believe our recovery will never reach the majority of struggling Americans until we restore equal protection for all citizens and especially borrowers in our debt-ridden society. LivingLies is the vehicle for a collaborative movement to provide homeowners with sufficient resources to combat bloated banks who are flooding the political market with money. We provide thousands of pages of free forms, articles and discussion of statutes, case precedent and policy on this site. And we provide paid services, books and products that enable us to maintain an infrastructure to provide a voice to the victims of Wall Street corruption.

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RECOMMENDED READING:

WHOSE LIEN IS IT ANYWAY? by Neil F Garfield. E-Book available on our online store.

CHAIN OF TITLE by David Dayen. Available on Amazon

LISTEN LIBERALS! by Thomas Frank. Available on Amazon and Kindle.

Pretender Lenders: How Tablefunding and Securitization Go Hand in Hand” By William Paatalo and Kimberly Cromwell. CLICK: http://infotofightforeclosure.com/tools-store/ebooks-and-services/?ap_id_102

NAKED REMIC TRUSTEES

The Navarro case clearly explains the difference between a naked trustee who cannot sue or be sued in their own name and a real trustee who can. The answer is common sense — the trustee is naked if it is there in name only, like all REMIC Trustees where control, knowledge and accountability are removed from their “position” as trustee.

Quote from Deposition of John G Richards II, as corporate representative of US Bank [vice president at U.S. Bank within
13 the global corporate trust services group
]:

Q: Do you manage Chase as the servicer of the trust?

A: I would not describe that there is any kind of management or oversight role by the trustee of a servicer in this trust or any other.

Hat tip to Bill Paatalo for depo transcript

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https://fs20.formsite.com/ngarfield/form271773666/index.html?1502204714426
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

Hat tip Dan Edstrom

see Role-of-Trustee-Sept2013OCC_Letter_

Trustees_Do_NOT_own_Loans – Int1016

Navarro v Lee – Trust Type and Person Status 1980 US Supreme Crt

We conclude that these respondents are active trustees whose control over the assets held in their names is real and substantial. That the trust may depart from conventional forms in other respects has no bearing upon this determination. Nor does Fidelity’s resemblance to a business enterprise alter the distinctive rights and duties of the trustees.[15] There is no allegation of sham or collusion. [e.s.]See 28 U. S. C. § 1359; Bullard v. Cisco, supra, at 187-188, and n. 5. The respondents are not “naked trustees” who act as “mere conduits” for a remedy flowing to others. McNutt v. Bland, 2 How., at 13-14; see Browne v. Strode, 5 Cranch 303 (1809). They have legal title; they manage the assets; they control the litigation. In short, they are real parties to the controversy. [e.s.] For more than 150 years, the law has permitted trustees who meet this standard to sue in their own right, 466*466 without regard to the citizenship of the trust beneficiaries. We find no reason to forsake that principle today.
This 1980 US Supreme Court case gives us a checklist:
  1.  Does the Trustee have legal title? Grey area when it takes title on behalf of the trust rather than simply in its own name when it is supposedly operating as Trustee.  Better to assume that courts will say they have passed the test of legal title.
  2. Does the Trustee manage the assets? The answer is no. In fact every PSA I have read specifically cuts the Trustee off from any right or duty to manage the alleged “assets” or any right to even know the status of the “assets” — including knowing whether the assets are actually in the trust (i.e., that the assets have been entrusted to the trustee). In other words if US Bank is named as Trustee it has not opened up a Trust account in the name of the trust nor does it even know, much less manage, the assets or status of the assets.
  3. Does the Trustee manage the litigation? The answer is no. Hundreds of foreclosure defense attorneys and hundreds of thousands of pro se litigants learned quickly that they were distracted and diverted to the alleged “servicer” rather than the Trustee who disclaims any interest or knowledge in the litigation.
  4. [Editor note: Does the Trustee have any accountability for what happens in the “trust” and in particular with respect to the subject loan? The answer is no. In fact the PSA (Trust Instrument) specifically indemnifies the Trustee from all accountability for any actions within the “Trust” or any actions ostensibly taken in the name of the “Trust” or “Trustee.” The absence of such accountabiliity corroborates that the existence of a Naked Trustee.]

Thus with numbers 2 and 3 (and 4) off the table, the use of the Trustee’s name becomes merely a veil for the real parties in interest.  When I am negotiating settlement I always demand that the Trustee sign off on the settlement or modification. It NEVER happens. The opposition lawyers get very squirrily when I demand that because they know that their client is an alleged servicer and NOT the named foreclosing party (“Trustee”) with whom they have had no contact. The servicer signs modification agreements as attorney in fact for the named Trustee. Thus the Trustee has not directly or indirectly managed the settlement.

It may seem nuts to make a deal with someone with whom you have no legal relationship regarding a loan they neither own nor legally control through an intermediary (“servicer”) whose right to manage and litigate is derived from a trust instrument (PSA) for a trust that does not exist (no assets). I allow it and advise my clients accordingly in the hope that one day a legislative reset button might be pushed to make certain what is now not only uncertain but unknowable.

Practice Note: If you think about it, reseearch it and analyze it, you will have an aha! moment when you consider an assignment from one naked title holder (like MERS, with no authority —  and public disclaimer of any interest in the loan —  over the alleged loan) to another naked title holder (like a REMIC Trustee, as Trustee, and not on its own behalf —  and public disclaimer of any interest in the loan — for a REMIC Trust that doesn’t exist.) That entire exercise is meant to provide cover for the fact that the original loan documents were false. The loan wasn’t made by any of the parties on the loan documents but rather was funded by diverting money from investors’ expectation of the creation of a trust to the funding of an origination of a residential loan.

Paralegals: LivingLies Needs Your Help

Our drafting paralegal (for litigation) had to step back because of personal issues. So we are in desperate need of a paralegal who (1) is good at writing (2) is good at research and (3) already knows the material in mortgage and foreclosure litigation. Hourly rate of pay negotiable with incentives as independent contractor. We do not discriminate on any basis other than merit and the capacity to perform the work remotely. You might be required to have limited contact with the client or the lawyer who has paid for our services. You should be located somewhere in the continental United States.

This position requires the paralegal to work quickly and produce an acceptable draft inasmuch as we expect continued volume. If you are already too busy, please don’t apply. Experience in court procedures, local rules and filing documents is a definite plus.

This position is for litigation and is not for writing QWRs, COTA reports and similar prelitigation tools. We have that covered.

References are required.

You will originate the documents by generating a draft that is complete. It is NOT an opportunity to make money by having me do your work. The work flow is (1) we collect the information and make it available to you (2) we consult and send you the the audio file of the consultation with the client and (3) you do the research and write the original draft of the documents, instructions and suggestions to the client.

A Paralegal Degree, law degree, or certificate would be welcome but is not essential.

Personal experience with foreclosure would be welcome but not essential.

Owning your own computer with current updates of Programs like Word, Pages Excel or numbers is OK. You must own the licenses to the word processing program and the spreadsheet program.

You would be reporting only to me. I provide assistance, guidance and editing. You will have access to our extensive forms database.

If you are a self-starter, taking ownership of tasks, and know when to ask questions please submit a short resume to neilfgarfield@hotmail.com. We will send you an application to fill out and we will schedule a skype interview.

You may include a short statement (no more than 250 words) about your application, but that is not required.

Sincerely

Neil F Garfield

Neither God nor Rescission are Dead.

Although there are numerous actions and decisions that call into question whether TILA Rescission is effective and if so, when, the answer is clear even in the 9th Circuit where there are some decisions and even disciplinary actions against those lawyers who promote the interests of their clients by using the direct and clear wording of the Statute, The Regulations, the Appellate decisions and the US Supreme Court, to wit:

(1) Rescission is effective the moment it is mailed. The blowback from the servicer or bank is not a legal response. It can only be a lawsuit that vacates that which legally exists — a cancellation of the note and mortgage, leaving the debt unsecured and the bargaining table leveled almost in favor of the borrower. While this throws those bogus mortgage bonds into turmoil that is not the subject matter for concern in any foreclosure case or case in which rescission duties are sought to be enforced.

(2) The creditor — if there is one —- has several options. First it can acquiesce. That means it delivers the canceled note back to the borrower (hard to do when you have destroyed it), files a release of the encumbrance and pays back all the money the borrower ever paid in conenction with the loan. THEN it can make a claim for repayment but not before. Thus the note and mortgage are canceled forever and the debt is off the table until all of the three statutory duties are met. OR, the creditor can contest by filing a lawsuit stating what is wrong with the rescission and why it should be vacated. Notice that such a alwsuit has never been brought even when the rescission notice has been recorded. And that brings us to the third problem — no party has standing to bring such an action to vacate the rescission except the actual creditor. Nobody can rely upon instruments that are “void” (as per Regs) and claim standing or anything else. It is only the owner of the debt that can make a claim to vacate the rescission. And it is only the creditor who is responsible for paying the disgorgement of all money paid by the borrower. It appears that nobody wants to claim that honor. So the creditors either don’t know what is going on at ground level or don’t care or have other reasons for not producing themselves as the creditors.

(3) Simple logic dictates that the creditor could accept the rescission no matter when it was filed or the reasons for serving the notice of rescission. But in order to have that option the rescission must be effective. Otherwise there would be nothing to greet with acquiescence. Should the creditor wish to vacate the rescission, they must do so within 20 days or lose their right to demand revocation of the rescission. Hence in all cases and at all times the notice of rescission is effective, subject to the creditor’s right to seek revocation. Otherwise rescission doesn’t work at all and the banks could forever stonewall, which is precisely the what the committee notes show was intended to be impossible when the Truth in Lending Act was passed. To treat the situation any other way would mean that the rescision is effective but it isn’t.

Listen to the Last Neil Garfield Show at http://www.blogtalkradio.com/neilgarfield/2017/08/10/us-bank-trustee-loses-uncontested-foreclosure
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https://fs20.formsite.com/ngarfield/form271773666/index.html?1502204714426
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

Hat tip to Dan Edstrom

see Barnes v Chase 9th Circuit RESCINDED and Remanded NOT for Publication 13-35716

Causey v US Bank 9th Circuit RESCINDED and Remanded NOT for Publication 10-56021

Here we find some amazing rulings from the Ninth Circuit.  One pre-Jesinoski, and the other post Jesinoski …
Causey v. US Bank (2011) [3 day rescission decided pre-Jesinoski]
But in a case where the creditor acquiesces in the
consumer’s notice of rescission or fails to respond within the 20-day response period, rescission is accomplished automatically. See id.
Barnes v Chase (8/10/2017)
Check this ruling out:
For reasons that are unclear from the record, the letter to the creditor was returned to Barnes undelivered. The loan was not rescinded, and Barnes brought suit for rescission and violation of the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq., and its requirements regarding rescission procedures against CBUSA, CHF, and LBPS.1 The district court granted the defendants’ motion for summary judgment. Because notice of rescission was properly given, we vacate the grant of summary judgment on Barnes’s claims for rescission and failure to effect
rescission and remand for further proceedings.2
And:
Specifically, Consumer Financial Protection Bureau (CFPB) Official Staff
Commentary to Regulation Z provides: “Where the creditor fails to provide the consumer with a designated address for sending the notification of rescission delivery of the notification to the person or address to which the consumer has been directed to send payments constitutes delivery to the creditor or assignee.” 12 C.F.R. § 226, Supp. I, para. 23(a)(2); Truth in Lending, 69 Fed. Reg. 16,769-03,
16,771 (Mar. 31, 2004).
 
And:
 
CBUSA “fail[ed] to provide [Barnes] with a designated address for sending the notification of rescission” because the address it did provide was not successfully receiving mail when Barnes sent his notice there. See 12 C.F.R. § 226, Supp. I, paras. 15(a)(2), 23(a)(2). The only remaining action for Barnes to take, per Regulation Z and the CFPB Official Staff Commentary, was to notify the servicer, which he had already done.

Now It is Your Turn to Help! Homeowner needs an Attorney in New Mexico! Can you help?

CALL 202-838-6345

or email info@lendinglies.com

Hello LivingLies Readers,

Thank you for your robust response to our post requesting New Jersey attorneys.  Thanks to you, we were able to locate several potential attorneys for our client!

This is a prospective client who has resources with which to pay fees, costs and third party vendors for analysis. The case is pending in Bernalillo County, New Mexico. Based on Neil Garfield’s cursory review the history of the case, its current procedural status and the substantive facts all point to fraudulent and wrongful foreclosure.

Please call our main number or refer to this Post, and provide the name and contact information of the lawyer you think would be available.  You may also email us at info@lendinglies.com.  Thank you!

CALL 202-838-6345

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Identifying Ocwen Properly in Pleadings

Taken from a complaint filed by the CFPB, this should help those who want to sue Ocwen and want to make sure they are suing the right entity and making the correct allegations.

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https://fs20.formsite.com/ngarfield/form271773666/index.html?1502204714426
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-
see Ocwen

10. Ocwen Financial Corporation (“OFC”) is a publicly-traded Florida corporation that maintains its principal place of business in West Palm Beach, Florida. At all times relevant to this complaint, OFC has done business in this District and throughout the United States.

11. Ocwen Mortgage Servicing, Inc. (“OMS”) is a United States Virgin Island corporation that maintains its principal place of business in the United States Virgin Islands. At all times relevant to this complaint, OMS has done business in this District and throughout the United States.

12. Ocwen Loan Servicing, LLC (“OLS”) is a Delaware limited liability company that maintains its principal place of business in West Palm Beach, Florida. At all times relevant to this complaint, OLS has done business in this District and throughout the United States.

13. OFC, through its subsidiaries, originates and services loans. OFC, OMS, and OLS (collectively “Ocwen”) engage in servicing activities relating to the loans by, among other things, processing borrower payments, administering loss mitigation processes, and managing foreclosures. Ocwen also acquires and collects upon borrowers’ mortgage debts that are in default.

14. OFC, the parent and publicly-traded company, wholly owns all of the common stock of its primary operating subsidiary, OMS. OMS wholly owns the stock of another of OFC’s primary operating subsidiaries, OLS. All three entities share and have shared key executives, such as Ronald Faris, Timothy Hayes, Michael Bourque, and John Patrick Cox. All three entities, through OFC, file a consolidated financial statement with OFC’s public disclosures.

15. OFC controls, directs, operates, and participates in mortgage servicing activities, including the daily cashiering, escrow, insurance, loss mitigation, foreclosure, call center, and consumer complaint operations for Ocwen’s loans. OFC enters into agreements for products and services that are necessary for Ocwen to service mortgage loans and collect debt. OFC has contracted for such products and services, including a system of record and related technology services, for and on behalf of Ocwen’s affiliates, which include OMS and OLS. [EDITOR’S NOTE: I think the CFPB missed the mark here at least partially. It turns out that Black Knight, f/k/a LPS maintains the “records” making it easier to change the name of the servicer by merely giving the “new servicer” the login and password to a system neither created nor maintained by Ocwen or any other servicer.]

16. OMS is also engaged in servicing loans. OMS is licensed by numerous state regulators to service loans and collect mortgage debts. OMS has entered into agreements for products and services that are necessary for Ocwen to service mortgage loans and collect debt. OMS has contracted for such products and services, including a system of record and related technology services used by OLS and OFC. OLS also represented, in an August 23, 2016 Consent Order with the State of Washington Department of Financial Institutions, that OMS engages in the servicing or subservicing of OLS loans.

17. OLS is also engaged in servicing loans. OLS is licensed by numerous state regulators to service loans and collect upon borrowers’ mortgage debts. OLS is also the owner of the mortgage servicing rights for the loans that Ocwen services.

18. Under OFC’s and OMS’s direction, authority, and control, OLS has also engaged in the marketing and processing and transmitting of payments for credit monitoring products, financial advisory products, and other products that are added on to Ocwen borrowers’ accounts.

19. OFC, OMS, and OLS are, and have been at all times relevant to this Complaint, “covered persons,” as that term is defined by 12 U.S.C. § 5481(6)(A), because they offer or provide a consumer financial product or service for use by consumers primarily for personal, family, or household purposes, or that is delivered, offered, or provided in connection with such a product or service by: servicing mortgage loans; collecting on consumers’ mortgage debts; and marketing and processing and transmitting payments for credit monitoring products, financial advisory products, and other products that are added on to the accounts of borrowers whose loans they service (“add-on products”). 12 U.S.C. § 5481(15)(A)(i), (iv), (vii), (viii), and (x).

20. OFC is, and has been at all times relevant to this Complaint, a “related person” because, as described in Paragraph 14, it is the direct and indirect shareholder of all OMS and OLS stock, and is thus a “controlling shareholder” and “shareholder…or other person…who materially participates in the conduct of the affairs” of OMS and OLS, which are covered persons. 12 U.S.C. § 5481(25)(C)(i) and (ii). OFC is thus “deemed to [be] a covered person for all purposes of any provision of Federal consumer financial law.” 12 U.S.C. § 5481(25)(B). OMS is, and has been at all times relevant to this Complaint, a “related person” because, as described in Paragraph 14, it owns all of OLS’s stock and is thus a “controlling shareholder” and a “shareholder…or other person…who materially participates in the conduct of the affairs” of OLS, which is a covered person. 12 U.S.C. § 5481(25)(C)(i) and (ii). OMS is thus “deemed to [be] a covered person for all purposes of any provision of Federal consumer financial law.” 12 U.S.C. § 5481(25)(B).

21. OFC and OMS are, and have been at all times relevant to this Complaint, service providers to OLS because, as described in Paragraphs 15 and 16, OFC and OMS have provided material services to OLS. 12 U.S.C. § 5481(26)(A). OFC and OMS have also controlled and participated in the design, operation, and maintenance of OLS’s mortgage servicing activities and marketing and processing and transmitting payments for add-on products. 12 U.S.C. § 5481(26)(A)(i).

22. OLS, OMS, and OFC operate as a “common enterprise.” OLS, OMS, and OFC have conducted the business practices described below through interconnected companies that have common business functions, employees, and office locations. OFC and OMS control (either formally or informally) and operate OLS’s mortgage servicing activities and marketing of and payment processing and transmitting payments for add- on products. OFC and OMS also contract for critical mortgage servicing operations for and on behalf of OLS. OFC, OMS, and OLS also file consolidated financial statements and share employees and offices. Accordingly, an act by one entity constitutes an act by each entity comprising the “common enterprise,” and OFC, OMS, and OLS are each jointly and severally liable for the acts and practices alleged below.

23. As described in Paragraphs 14-18, OFC and OMS have directed and controlled OLS’s mortgage servicing activities and marketing of and payment processing and transmitting payments for add-on products, and authorized OLS to service Ocwen’s loans. Employees of OFC and OMS have knowledge of and control or have the ability to control the activities of OLS discussed herein. OFC and OMS, as OLS’s principals, are liable for the actions of their agent, OLS. [EDITOR’S NOTE: Here again the CFPB has failed to discover or say that the activities are not necessarily controlled or governed or even known by Ocwen.]

FORMS: Whistle-Blower Action Unsealed

A well written complaint that can assist atttorneys in drafting their own complaints for fraud and other violations of code or common law.

see Bozelli v PHH Mortgage Corp and Phh Corp

CA Supreme Court Clarified Title vs Sale Perfection

Once again, the devil being in the details, the attempt to treat perfection of title and perfection of sale goes down in flames in an Unlawful Detainer action in California.

Listen to the Last Neil Garfield Show at http://tobtr.com/s/9673161
Get a consult and Chain of Title Analysis! 202-838-6345
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https://fs20.formsite.com/ngarfield/form271773666/index.html?1502204714426
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

Hat tip to Dan Edstrom

see UD and Duly Perfected Title – FOR PUBLICATION_JAD16-07

I like this case for a number of reasons. The first is that the self serving documents that the banks file in these fraudulent foreclosures are coming under much greater scrutiny — almost back to the way things were before the era of false claims of securitization enabling millions of homes to be sold to a “bidder” who was never the “creditor” or beneficiary under a deed of trust.

It has long been recognized that the unlawful detainer statutes are to be strictly construed and that relief not statutorily authorized may not be given due to the summary nature of the proceedings.
[Citation.] ….

The remedy of unlawful detainer is a summary proceeding to determine the right to possession of real property. Since it is purely statutory in nature, it is essential that a party seeking the remedy bring himself clearly within the statute. [Citation.]

(Baugh v. Consumers Associates, Limited (1966) 241 Cal.App.2d 672, 674-675.)

This case is also interesting because the CA Supreme Court ordered it to be published. The trial court had committed the same essential error as in millions of other proceedings by DEEMING the law to have been satisfied in the absence of proof and even in the presence of obvious proof to the contrary. “Deeming” is not the same as ruling and it obviously runs contrary to “blind justice.” “Deeming” means the judge has already made up his/her mind and is creating a ruling that conforms to the prejudgment of the case.

Contrary to the plain reading of the statute, the trial court erroneously concluded “… that

under California Civil Code section 2924h(c), title is deemed perfected as of 8 a.m. on the date of the sale because the trustee’s deed upon sale was recorded within 15 calendar days.” (Statement of Decision, italics added.)

In this case, the sale was perfected at the time the three-day notice was served, but not the title. Thus, the plaintiff could not provide defendant with a valid three-day notice. The court below mixed the issues of sale and title, but perfecting title is not interchangeable with perfection of the sale under this statutory scheme.

Unless and until the Plaintiff has duly perfected title, an unlawful detainer action for possession is not yet ripe for determination. (Stonehouse Homes v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 540-541.)

Title is duly perfected when all steps have been taken to make it perfect, i.e., to convey to the purchaser that which he has purchased, valid and good beyond all reasonable doubt…, which includes good record title…, but is not limited to good record title, as between the parties to the transaction. The term ‘duly’ implies that all of those elements necessary to a valid sale exist, else there would not be a sale at all.

(Kessler v. Bridge (1958) 161 Cal.App.2d Supp. 837, 841.)

In plain language in order to file an eviction (UD) action you must first serve a notice (in CA it is a 3 day notice). In order to serve a 3 day notice you must have perfected title. In order to have perfected title you must be the owner of record (i.e., the deed upon foreclosure sale must have been recorded in your name). Strict compliance with statute is required, so no “deeming” is allowed. In this case the sale was conducted, the bidder won the auction, and then served the notice to vacate or pay rent BEFORE THE DEED WAS RECORDED.

“After the trustee’s deed has been recorded, the purchaser is entitled to bring an unlawful detainer action against the borrower-trustor or his or her successor to obtain possession of the property. [Citations.]” (Id. at p. 480, italics added.)

An interesting side note, often pointed out by Charles Koppa in San Diego, is the peculiar way the bids were made that conformed to the amounts required for the accounting at the top of the securitization chain which did not reconcile at all with the amounts at the bottom — both for the benefits of the banks and against the interests of the investors at the top and the borrowers at the bottom. A further observation and sometimes investigation is that there are “transfers” behind the scenes that show up in the name of the winning bidder and/or the name of the party into whose name the deed is recorded.

A defective notice cannot support an unlawful detainer judgment for possession. Respondent’s interpretation, on the other hand, would suggest that a post-foreclosure plaintiff could routinely prematurely issue a three-day notice that includes legal and factual misstatements (e.g., that the purchaser has already duly perfected title when it had not yet done so). And as argued by Appellant, such a practice would practically prevent a defendant from effectively verifying the identity of the alleged purchaser of a property as a search of recorded documents would prove futile.

 

 

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