Problems with Lehman and Aurora

Lehman had nothing to do with the loan even at the beginning when the loan was funded, it acted as a conduit for investor funds that were being misappropriated, the loan was “sold” or “transferred” to a REMIC Trust, and the assets of Lehman were put into a bankruptcy estate as a matter of law.

THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

—————-
I keep receiving the same question from multiple sources about the loans “originated” by Lehman, MERS involvement, and Aurora. Here is my short answer:
 *

Yes it means that technically the mortgage and note went in two different directions. BUT in nearly all courts of law the Judge overlooks this problem despite clear law to the contrary in Florida Statutes adopting the UCC.

The stamped endorsement at closing indicates that the loan was pre-sold to Lehman in an Assignment and Assumption Agreement (AAA)— which is basically a contract that violates public policy. It violates public policy because it withholds the name of the lender — a basic disclosure contained in the Truth in Lending Act in order to make certain that the borrower knows with whom he is expected to do business.

 *
Choice of lender is one of the fundamental requirements of TILA. For the past 20 years virtually everyone in the “lending chain” violated this basic principal of public policy and law. That includes originators, MERS, mortgage brokers, closing agents (to the extent they were actually aware of the switch), Trusts, Trustees, Master Servicers (were in most cases the underwriter of the nonexistent “Trust”) et al.
 *
The AAA also requires withholding the name of the conduit (Lehman). This means it was a table funded loan on steroids. That is ruled as a matter of law to be “predatory per se” by Reg Z.  It allows Lehman, as a conduit, to immediately receive “ownership” of the note and mortgage (or its designated nominee/agent MERS).
 *

Lehman was using funds from investors to fund the loan — a direct violation of (a) what they told investors, who thought their money was going into a trust for management and (b) what they told the court, was that they were the lender. In other words the funding of the loan is the point in time when Lehman converted (stole) the funds of the investors.

Knowing Lehman practices at the time, it is virtually certain that the loan was immediately subject to CLAIMS of securitization. The hidden problem is that the claims from the REMIC Trust were not true. The trust having never been funded, never purchased the loan.

*

The second hidden problem is that the Lehman bankruptcy would have put the loan into the bankruptcy estate. So regardless of whether the loan was already “sold” into the secondary market for securitization or “transferred” to a REMIC trust or it was in fact owned by Lehman after the bankruptcy, there can be no valid document or instrument executed by Lehman after that time (either the date of “closing” or the date of bankruptcy, 2008).

*

The reason is simple — Lehman had nothing to do with the loan even at the beginning when the loan was funded, it acted as a conduit for investor funds that were being misappropriated, the loan was “sold” or “transferred” to a REMIC Trust, and the assets of Lehman were put into a bankruptcy estate as a matter of law.

*

The problems are further compounded by the fact that the “servicer” (Aurora) now claims alternatively that it is either the owner or servicer of the loan or both. Aurora was basically a controlled entity of Lehman.

It is impossible to fund a trust that claims the loan because that “reporting” process was controlled by Lehman and then Aurora.

*

So they could say whatever they wanted to MERS and to the world. At one time there probably was a trust named as owner of the loan but that data has long since been erased unless it can be recovered from the MERS archives.

*

Now we have an emerging further complicating issue. Fannie claims it owns the loan, also a claim that is untrue like all the other claims. Fannie is not a lender. Fannie acts a guarantor or Master trustee of REMIC Trusts. It generally uses the mortgage bonds issued by the REMIC trust to “purchase” the loans. But those bonds were worthless because the Trust never received the proceeds of sale of the mortgage bonds to investors. Thus it had no ability to purchase loan because it had no money, business or other assets.

But in 2008-2009 the government funded the cash purchase of the loans by Fannie and Freddie while the Federal Reserve outright paid cash for the mortgage bonds, which they purchased from the banks.

The problem with that scenario is that the banks did not own the loans and did not own the bonds. Yet the banks were the “sellers.” So my conclusion is that the emergence of Fannie is just one more layer of confusion being added to an already convoluted scheme and the Judge will be looking for a way to “simplify” it thus raising the danger that the Judge will ignore the parts of the chain that are clearly broken.

Bottom Line: it was the investors funds that were used to fund loans — but only part of the investors funds went to loans. The rest went into the pocket of the underwriter (investment bank) as was recorded either as fees or “trading profits” from a trading desk that was performing nonexistent sales to nonexistent trusts of nonexistent loan contracts.

The essential legal problem is this: the investors involuntarily made loans without representation at closing. Hence no loan contract was ever formed to protect them. The parties in between were all acting as though the loan contract existed and reflected the intent of both the borrower and the “lender” investors.

The solution is for investors to fire the intermediaries and create their own and then approach the borrowers who in most cases would be happy to execute a real mortgage and note. This would fix the amount of damages to be recovered from the investment bankers. And it would stop the hemorrhaging of value from what should be (but isn’t) a secured asset. And of course it would end the foreclosure nightmare where those intermediaries are stealing both the debt and the property of others with whom thye have no contract.

GET A CONSULT!

https://www.vcita.com/v/lendinglies to schedule CONSULT, MAKE A DONATION, leave message or make payments.

 

Black Knight: Delinquencies Up, Foreclosure Starts Down In July

Black Knight: Delinquencies Up, Foreclosure Starts Down In July

he mortgage delinquency rate in July was about 4.51%, an increase of 4.78% compared with June but a decrease of 3.38% compared with July 2015, according to Black Knight Financial Services’ “First Look” report.

About 2.286 million mortgages were 30 days or more past due, but not in foreclosure, in July – an increase of about 108,000 compared with June but a decrease of about 70,000 compared with July 2015.

About 695,000 mortgages were 90 days or more past due, but not in foreclosure – an increase of about 3,000 compared with June but a decrease of about 147,000 compared with a year earlier.

Based on its historical data, Black Knight is forecasting that the delinquency rate is likely to decrease in August.

There were about 61,300 foreclosure starts in July – a decrease of 11.54% compared with June and a decrease of 14.27% compared with one year earlier.

It was the second-lowest monthly total for foreclosure starts in 10 years, Black Knight says.

The presale foreclosure inventory rate in July was 1.09%, a decrease of 1.68% compared with June and a decrease of 28.36% compared with July 2015.

There were about 550,000 homes in the presale foreclosure inventory – a decrease of about 8,000 compared with June and a decrease of about 214,000 compared with July 2015.

It was the lowest presale foreclosure inventory rate since July 2007.

The monthly prepayment rate was about 1.26%. That’s down 11.98% compared with June and down 1.00% compared with July 2015.

Black Knight notes that prepayment activity fell in July despite overall growth in the number of refinance candidates and 30-year interest rates remaining at or below 3.45% for much of the month.

Affected Indiana Residents Could be Awarded $2 Million in Foreclosure Abuse Settlement

http://www.tristatehomepage.com/news/local-news/indiana-residents-could-be-awarded-2-million-in-foreclosure-abuse-settlement

Indiana residents should be on the lookout for mailed notices coming this month that provide instructions on how to claim reimbursements from the state of Indiana’s $470 million federal-state settlement with mortgage lender and servicer, HSBC.

Indiana Attorney General Greg Zoeller says Hoosiers can claim $2 million in reimbursements from the settlement for foreclosure abuses starting August 24.

The settlement was announced in February and it addresses foreclosure abuses by HSBC during the financial crisis.

An estimated 2,810 Indiana borrowers lost their homes from 2008-2012 and encountered servicing abuses by HSBC. Those 2,810 people are eligible for reimbursements. Individual payments will start at $780 and total reimbursement statewide could exceed $2 million.

Attorney General Zoeller says, “Many Hoosiers still feel the impact of the financial crisis, which was exacerbated by abuses and unethical practices in the mortgage lending and servicing industry.”

A postcard notice will be sent informing people of their eligibility on August 24.

All claim forms are due by November 1, 2016. Payments would be mailed out in February and March of 2017.

For more information about the D.O.J HSBC settlement, click here.

 

FDCPA and FCCPA: Temperatures rising

FDCPA and FCCPA (or similar state legislation) claims are getting traction across the country. Bank of America violated the federal Fair Debt Collection Practices Act (“FDCPA”) and the related Florida Consumer Collection Practices Act (“FCCPA”). (Doc. 26). The Goodin case is a fair representation of the experience of hundreds of thousands of homeowners who have tried to reconcile the numbers given to them by Bank of America and others.

In a carefully worded opinion from Federal District Court Judge Corrigan in Jacksonville, the Court laid out the right to damages under the FDCPA and FCCPA. The Court found that BOA acted with gross negligence because they continued their behavior long after being put on notice of a mistake on their part and awarded the 2 homeowners:

  • Statutory damages of $2,000
  • Actual damages for emotional distress of $100,000 ($50,000 per person)
  • Punitive damages of $100,000
  • Attorneys fees and costs

 

See http://www.leagle.com/decision/In%20FDCO%2020150623E16/GOODIN%20v.%20BANK%20OF%20AMERICA,%20N.A.

The story is the same as I have heard from thousands of other homeowners. The “servicer” or “bank” misapplies payments, negligently posts payments to the wrong place and refuses to make any correction despite multiple attempts by the homeowners to get their account straightened out. Then the bank refuses to take any more payments because the homeowners are “late, ” “delinquent”, or in “default”, following which they send a default notice, intent to accelerate and then file suit in foreclosure.

The subtext here is that there is no “default” if the “borrower” tenders payment timely with good funds. The fact that the servicer/bank does not accept them or post them to the right ledger does not create a default on the part of the borrower, who has obviously done nothing wrong. There is no default and there is no delinquency. The wrongful act was clearly committed by the servicer/bank. Hence there is no default by the borrower in any sense by any standard. It might be said that if there is a default, it is a default by Bank of America or whoever the servicer/bank is in another case.

Using the logic and law of yesteryear, we frequently make the mistake of assuming that if there is no posting of a payment, no cashing of a check or no acceptance of the tender of payment, that the borrower is in default but it is refutable or excusable — putting the burden on the borrower to show that he/she/they tendered payment. In fact, it is none of those things. When you parse out the “default” none of the elements are present as to the borrower.

This case stands out as a good discussion of damages for emotional distress — including cases, like this one, where there is no evidence from medical experts nor medical bills resulting from the anguish of trying to sleep for years knowing that the bank or servicer is out to get your house. The feeling of being powerless is a huge factor. If an institution like BOA fails to act fairly and refuses to correct its own “errors,” it is not hard to see how the distress is real.

I of course believe that BOA had no procedures in place to deal with calls, visits, letters and emails from the homeowner because they want the foreclosure in all events — or at least as many as possible. The reason is simple: the foreclosure judgment is the first legally valid instrument in a long chain of misdeeds. It creates the presumption that all the events, documents, letters and claims were valid before the judgment was entered and makes all those misdeeds enforceable.

The Judge also details the requirements for punitive damages — i.e., aggravating circumstances involving gross negligence and intentional acts. The Judge doesn’t quite say that the acts of BOA were intentional. But he describes BOA’s actions as so grossly negligent that it must approach an intentional, malicious act for the sole benefit of the actor.

 

PRACTICE NOTE ON MERGER DOCTRINE AND EXISTENCE OF DEFAULT:

It has always been a basic rule of negotiable instruments law that once a promissory note is given for an underlying obligation (like the mortgage contract), the underlying obligation is merged into the note and is suspended while the note is still outstanding. Discharge on the note would (due to the rule that the two are merged) result in discharge discharge of the underlying obligation. Thus paying the note would also pay the obligation. Because of the merger rule, the underlying obligation is not available as a separate course of action until the note is dishonored.

 

The problem here is that most lawyers and most judges are not very familiar with the UCC even though it constitutes state law in whatever state they are in. They see the UCC as a problem when in fact it is a solution. it answers the hairy details without requiring any interpretation. It just needs to be applied. But just then the banks make their “free house” argument and the judge “interprets a statute that is only vaguely understood.

The banks know that judges are not accustomed to using the UCC and they come in with a presumed default simply because they show the judge that on their own books no payment was posted. And of course they have no record of tender and refusal by the bank. The court then usually erroneously shifts the burden of proof, as to whether tender of the payment was made, onto the homeowner who of course does not  have millions of dollars of computer equipment, IT platforms and access to the computer generated “accounts” on multiple platforms.

This merger rule, with its suspension of the underlying obligation until this honor of the note cut is codified in §3-310 of the UCC:

(b) unless otherwise agreed and except as provided in subsection (a), if a note or an uncertified check is taken for an obligation, the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount of the instruments were taken, and the following rules apply:

(2) in the case of a note, suspension of the obligation continues until dishonor of the note or until it is paid. Payment of the note results in the discharge of the obligation to the extent of the payment.

thus until the note is dishonored there can be no default on the underlying obligation (the mortgage contract). All foreclosure statutes, whether permitting self-help or requiring the involvement of court, forbid foreclosure unless the underlying debt is in”Default.” That means that the maker of the promissory note must have failed to make the payments required by the note itself, and thus the node has been dishonored. Under UCC §3-502(a)(3) a hello promissory note is dishonored when the maker does not pay it when the footnote first becomes payable.

Bank of America HAMP Denial? Rackeetering Claims Revived

 http://www.courthousenews.com/2016/08/15/racketeering-claims-against-bank-of-america-revived.htm
Racketeering Claims Against Bank of America Revived
(CN) — Homeowners can sue Bank of America for claims it feigned compliance with a mortgage assistance plan that was a condition of the bank’s $45 billion bailout in 2008, the 10th Circuit ruled Monday.

     Bank of America hired Urban Settlement Services dba Urban Lending Solutions to administer its Home Affordable Modification Program, or HAMP.

The bank was required to participate in HAMP as a condition of receiving a $45 billion bailout from the federal government to shore up the bank’s bad loans during the 2008 financial crisis. The government also guaranteed $118 billion in potential losses at the bank.

HAMP required Bank of America to collect financial information from at-risk borrowers, and evaluate their eligibility for a loan modification that would allow them to pay a lower interest on their mortgage.

The program allowed eligible borrowers to enter a trial period plan to demonstrate their ability to make lower monthly payments, and permanently modified loans if the borrowers made regular payments.

But a class of homeowners led by Richard George say Bank of America and Urban conspired to obstruct and delay their HAMP loan modification applications.

The defendants lied to borrowers, according to a 2013 lawsuit filed in Colorado, denying they had received HAMP application documents that they had in fact received, as proven by FedEx tracking numbers, in order to mislead homeowners about the status of their applications.

The bank was allegedly motivated to feign compliance with the HAMP program in order to keep interest rates high on homeowners struggling to pay their mortgages.

A federal judge dismissed the class’s RICO and promissory estoppel claims, but the 10th Circuit revived them Monday.

“According to the plaintiffs, the enterprise’s dilatory tactics and wrongful denial of HAMP loan modifications defrauded borrowers of money. The plaintiffs specifically allege BOA profited from the fraud by improperly charging fees associated with delinquent loans and by ‘push[ing] homeowners into in-house modifications’ that carried higher interest rates than those associated with HAMP loan modifications,” Judge Nancy Moritz said, writing for the three-judge panel.

The appeals court found homeowners’ allegations sufficiently specific to sustain their racketeering claim against the bank. The judgment notes that plaintiffs identify bank employees by name, specify the dates on which they spoke to said employees, and explain the actions they took based on the misinformation they were allegedly given.

The homeowners’ claim against Urban also passes muster, because the allegations, if true, support a finding that Urban was aware of the overall scheme to defraud borrowers, the 38-page ruling states.

In addition, Moritz found that Bank of America made a promise to homeowners on its website and in documents sent to homeowners explaining the HAMP process, supporting their promissory estoppel claim.

“The language in BOA’s [trial period plan, or TPP] documents clearly and unambiguously promises to provide permanent HAMP loan modifications to borrowers who comply with the terms of their TPPs. And this is true regardless of whether those TPP documents state that promise inversely – i.e., that if the borrowers fail to comply with TPP terms, BOA will not modify the loan,” the judge wrote.

Rolling Stone’s Matt Taibbi: Why is the Obama Administration trying to keep 11k Documents sealed?

April 18, 2016

http://www.rollingstone.com/politics/news/why-is-the-obama-administration-trying-to-keep-11-000-documents-sealed-20160418

After 2008, everyone hated Fannie and Freddie, and for good reason. These quasi-private companies are essentially giant piles of money that were intended to advance a simple, utility-like mandate to keep credit flowing in the housing markets.

In the pre-crash years, however, the firms’ leaders acted less like the stewards of utilities and more like sleazy Wall Street hotshots. They made hyper-aggressive business decisions because their bonuses were tied to earnings growth. Some executives even engaged in Enronesque accounting manipulations in an effort to jack up their bonuses even further. These efforts led to record civil fines.

Contrary to popular belief, the one thing they weren’t guilty of was causing the 2008 crash. As the Financial Crisis Inquiry Commission later concluded, the GSEs were followers rather than leaders of the subprime craze. They invested far less recklessly than did the giant Wall Street firms primarily responsible for inflating the housing bubble.

In fact, it’s a little-known subplot of the financial crisis that bailout-era Fannie and Freddie was turned into a kind of garbage facility for other Wall Street institutions, buying up toxic mortgages that private banks were suddenly desperate to unload.

As early as March of 2008, then Treasury Secretary Hank Paulson was advocating using Fannie and Freddie to “buy more mortgage-backed securities from overburdened banks.”

And at the heat of the crisis, none other than former House Financial Services Committee chief and current Hillary Clinton booster Barney Frank praised the idea of using Fannie and Freddie to ease economic problems. “I’m not worried about Fannie and Freddie’s health,” he said. “I’m worried that they won’t do enough to help out the economy.”

Even after the state took over the companies in September of 2008, Fannie and Freddie continued to buy as much as $40 billion in bad assets per month from the private sector. Fannie and Freddie weren’t just bailed out, they were themselves a bailout, used to sponge up the sins of private firms.

The original takeover mechanism was a $110 billion bailout, followed by a move to place Fannie and Freddie in conservatorship. In exchange, the state received an 80 percent stake and the promise of a future dividend. All told, the government ended up pumping about $187 billion into the companies.

But now here’s the strange part. Within a few years after the crash, the housing markets improved significantly, to the point where Fannie and Freddie started to make money again. Lots of money. The GSEs became cash cows again, and in 2012 the government unilaterally changed the terms of the bailout.

Now, instead of taking a 10 percent dividend, the government decided that the new number it preferred was 100 percent. The GSE regulator, the Federal Housing Finance Agency (FHFA), explained the new arrangement.

“The 10 percent fixed-rate dividend was replaced with a variable structure, essentially directing all net income to the Treasury,” the FHFA wrote. “Replacing the current fixed dividend in the agreements with a variable dividend based on net worth helps ensure stability [and] fully captures financial benefits for taxpayers.”

http://www.rollingstone.com/politics/news/why-is-the-obama-administration-trying-to-keep-11-000-documents-sealed-20160418

Jorge Newbery’s Burn Zones: Playing Life’s Bad Hands

Burn Zones

Recommended by Living Lies: If you think losing a home to foreclosure and mortgage fraud is traumatic, try losing an empire of 4,000 apartments and 26 million in debt.  Jorge Newbery provides a comeback story full of inspiration, determination and leveling  the playing field when thing seem dire.  Recommended reading.

https://www.amazon.com/Burn-Zones-Playing-Lifes-Hands-ebook/dp/B00XA2JE0C/ref=as_li_ss_tl?_encoding=UTF8&qid=1468299137&sr=1-1&linkCode=ll1&tag=lauobraut-20&linkId=38e8030a3cab45499e7cc5fe88fafdd3#nav-subnav

Life was good for Jorge Newbery. A high school dropout and serial entrepreneur, he had built a real estate empire of over 4,000 apartments across the USA. Taking risks and working tirelessly were the ingredients to his rise. But, he took one risk too many.

An ice storm on Christmas Eve 2004 triggered his collapse.  He was maligned, publicly shamed, and financially gutted – even arrested. He lost everything and ended up $26 million in debt.

As he struggled to regain his footing, he spent what he could to get others to lift him up. But no one did. He discovered that there was only one person who could build him back up.  To move forward, he crafted a new life’s purpose: to help others crushed by unaffordable debts rebuild themselves

Burn Zones is a story of playing life’s bad hands and overcoming adversity against the greatest of challenges. It’s an inspirational story of a man who was pushed to his mental and physical limits, and came out the other side even stronger.

 

And, most of all, it’s a lesson that you can do the same.

  • “A riches-to-rags memoir that offers unique perspectives on business, punk rock, inequality, cycling, and family” -Kirkus
  • “I highly recommend this book to every human being on the planet. Not a very narrow audience to market to, but humanity in general needs a shot of Jorge Newbery’s candid take on life’s challenges and the personal relationships we develop along the way.” -Skin Deep Exposures Magazine
  • “In the heart of this book is the truth that life will always come to the aid of those who never give up. Whether readers are looking for words of encouragement, an interesting story to read on vacation, or the finest strategies in building and sustaining their wealth, Jorge P. Newbery’s book will be one of their best reads.” -Readers Favorite 
  • “Part memoir, part inspirational story, Jorge P. Newbery’s BURN ZONES: PLAYING LIFE’S BAD HANDS is the true life tale of a modern-day Renaissance man, a self-made success who will stop at nothing to achieve his goals.” -Best Sellers World
  • “Anyone who could use some inspiration in their life, or is a fan of the Disney-type inspirational sports movie, this is the book for you.” -Online Book Club
  • “Not many business books can be called page-turners, but Burn Zones is one of them” -Self-Publishing Review
  • “BURN ZONES is an engrossing and ultimately hopeful autobiography, involving an appealing combination of personal ambition and zeal for community improvement.” -IndieReader
  • “The ultimate burn – lose it all, come out fighting, and then share those valuable lessons with the world.” -TBR topbookreviewers.com
  • “Exceptionally well written and presented, ‘Burn Zones: Playing Life’s Bad Hands’ is a candid, insightful, absorbing, and ultimately inspiring memoir that is very highly recommended.” -Midwest Book Review
  • “Burn Zones by Jorge P. Newbery will enthrall readers and motivate many to conquer a new business, hobby, or life-long dream.” – San Francisco Book Review
  • “A compelling read: his telling of despair and humiliation at the darkest hours and how he turned his loss into strength and success are both thrilling and inspirational.” – Manhattan Book Review

Biography

Jorge P. Newbery is a successful entrepreneur, distressed debt and real estate investor, endurance athlete, and author. He turned around some of the country’s most troubled housing complexes in amassing a portfolio of 4,000 apartments across the USA from 1992 – 2005. However, a natural disaster triggered a financial collapse in which he lost everything and emerged over $26 million in debt. He never filed bankruptcy. Instead he developed strategies to gain leverage over creditors to settle debts at huge discounts, or simply did not pay them at all. He is a veteran of dozens of court battles, once fighting a creditor to the Missouri Court of Appeals. The entire debt (over $5,800,000) was inadvertently extinguished due to sloppy legal work.

As an athlete, Newbery raced bicycles for a living from 1986 – 1990 as a Category 1. He competed in the 1988 Olympic Trials and was 4th in the Spenco 500, a nonstop 500-mile bike race televised on ESPN. He also raced for the Costa Rican National Team in the Tour of Mexico, was 2nd in the 1987 Southern California State Championship Road Race, plus held the Green Jersey in the 1987 Vulcan Tour. Newbery also runs and has completed over 70 marathons and ultramarathons. In 2012, he was the overall winner of the Chicago Lakefront 50K. At 46-years-old, he was double the age of the 24-year-old second-place finisher.

Today, Newbery helps others crushed by unaffordable debts rebuild their lives. Jorge is Founder and CEO of American Homeowner Preservation (AHP), a socially responsible hedge fund which purchases nonperforming mortgages from banks at big discounts, then shares the discounts with families to settle their mortgages at terms many borrowers find “too good to be true.” Jorge’s response to the nation’s mortgage crisis creates meaningful social and financial returns for investors, while keeping families in their homes. AHP’s mission is to facilitate win-win-win solutions for homeowners, investors and lenders.

“Burn Zones: Playing Life’s Bad Hands” is Jorge’s autobiographical account of how he was pushed to his physical and mental limits during his time of strife, and how he overcame the challenges he faced. Jorge’s latest book is: “Debt Cleanse: How To Settle Your Unaffordable Debts For Pennies On The Dollar (And Not Pay Some At All),” which provides step-by-step help for families overwhelmed by debt.

Jorge is a regular contributor to Huffington Post and other publications, and speaks regularly on debt, investing, finance and housing issues.

Connect with Jorge at:
https://www.debtcleanse.com/
https://ahpinvest.com/
http://www.huffingtonpost.com/jorge-newbery/

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