securitized distrust part 2
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SECURITIZED DISTRUSTPART TWO
Posted onAugust 2, 2012
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The abuses and dishonesty and multiple breaches of contract within the shadow
banking world of securitized trusts appear to have been endless,
now with new revelations regarding the rigging of Libor rates, as well as constituting a litigation
puzzle for borrowers and for their attorneys seeking to use those abuses and dishonesty to their
advantage. But how?
SECURITIZED DISTRUST PART TWOprovides another outstanding synopsis of the
banking foreclosure fraud and little known hidden secrets used by lenders to defraud theborrowers and the courts.
SECURITIZED DISTRUSTPART TWOBy Gary Victor Dubin
In theMarch 15, 2012 Issueof Deadly Clear, I summarized what
for many were little known aspects and abuses of what has been going on behind the scenes,often unlawfully, in securitized trusts, where individual mortgage loans have been and still arebeing bundled together in the thousands, often undisclosed to borrowers or even to courts
contrary to sworn disclosures in court papers made cavalierly under penalty of perjury to the
contrary, and ownership certificates therein sold by Wall Street to investors like stocks, calledmortgage backed securities.
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Since then, borrowers and their attorneys throughout the Nation have been increasingly trying to
find which securitized trust their mortgage loans may be in, no easy task, and to expose and use
such associated abuses to defend against foreclosures.
Some have found, for instance, that their foreclosing mortgagees never owned their
mortgage loans which were instead found tradingin securitized trusts or even unlawfully were found placed simultaneously in more than one
securitized trust, or that their mortgage loans were paid off by investor certificates and lossesbeing reimbursed by insurance companies with TARP funds.
The problem for borrowers and for their attorneys has been how to use that information andfrequently violations of federal and/or state law either affirmatively or as a defense to
foreclosure.
Unfortunately, few state courts and almost no federal courts have, at least at first, responded
positively to securitization issues, still seemingly content to ask only principally the questionwhether the loan has been paid current or if it is in default, as if it does not matter who actually
owns the mortgage loan.
The reluctance or intellectual inability of the judiciary generally to comprehend the importanceof penetrating the inter-workings and machinations of securitized trusts has been historically
largely understandable, stemming principally from a traditional mindset that views mortgage
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loans as they were in an era of American banking that no longer exists.
Historically, when banks made mortgage loans, the borrowers were handed money upon signing
promissory notes and upon signing mortgages as security instruments, and the banks put thepromissory notes in their vaults and recorded the mortgages, and once fully paid returned the
promissory notes to the borrowers and recorded a release of the mortgages.
However, in the new Millennium for most lenders that procedure changed. Promissory notes and
mortgages rapidly became securitized by Wall Street, and in effect unknown to borrowers,
converted into continuously traded securities.
As a result, the traditional state-based methods of tracking and regulating mortgage ownershipthrough local recording offices and local agency regulators were bypassed, principally throughuse of the lender-created and lender-owned Mortgage Electronic Registration Systems, Inc.,
known commonly as MERS, which lead to the numerous abuses summarized in the original
SECURITIZED DISTRUSTarticle that appeared in Deadly Clear in March of this year.
Largely unregulated, promissory notes (the originals of which contrary to UCC negotiable
instruments laws appear initially reportedly to have mostly been shredded and digitized bysecuritized trusts for their alleged convenience) and related mortgages appear to have frequently
not been placed in their assigned securitized trusts at all, defrauding investors, although said to
have been and to be in securitized trusts, instead frequently used as collateral, for instance, for
Federal Home Loan Bank loans or placed in additional securitized trusts, all akin intentionally toa Ponzi scheme.
It appears that many investors in securitized trusts have been paid back their investments in
whole or in part with insurance dollars, tempting loan servicers to falsely claim in court
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that they own the mortgage loan so that they can
run off with the foreclosed property or the proceeds of a foreclosure sale without ever owning themortgage or paying anything for it.
It also appears that many borrowers seeking with federal promises loan modifications have been
strung along, sometimes for years, never being told that most securitized trusts cannot modifyloans without investor approval, no matter whether, for instance, formally HAMP loan
modification guidelines are met.
The abuses and dishonesty and multiple breaches of contract within the shadow banking world of
securitized trusts appear to have been endless, now with new revelations regarding the rigging of
Libor rates, as well as constituting a litigation puzzle for borrowers and for their attorneysseeking to use those abuses and dishonesty to their advantage. But how?
It is not usually sufficient, as many have with great disappointment learned at first, although itreally should be successful in a perfect legal system, to argue in court, for instance, that
insurance paid off the securitized investors, that your promissory note and mortgage were not in
the trust at the securitized cut-off date, that the mortgage assignment to the securitized trust wasrobo-signed, that you are a third-party beneficiary of the securitized trust, that the REMIC tax
laws were violated, and/or so on. Why not?
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Presently, courtswhose competence is unfortunately only slowly evolving in this area of the
law and only at present in a few parts of the Countryare beginning nevertheless to show some
signs of catching on to the significance of securitized trust issues in foreclosure contexts, butnevertheless seem to only grudgingly grant borrowers relief where borrowers plead and can
successfully outmaneuver the barbed wire of motions to dismiss and motions for summary
judgment, and show actual prejudice as a result. This can usually with perseverance be shown,however, in several possible ways.
First, the simplest way to show prejudice is to challenge the standing of your foreclosingmortgagee if you can show the court that your mortgage loan is instead in a securitized trust and
your foreclosing mortgagee is not the securitized trustee, as having no right to your monthly
payments, and perhaps owing you an accounting and back the money already paid by you unless
it can establish it went to the trust.
Second, another way is to show prejudice if you were denied a loan modification by claiming
that the foreclosing mortgagee had no authority under the securitized trust to decide on a loan
modification, yet strung you along and/or did not reasonably review your loan modificationapplication under applicable federal guidelines in good faith.
Third, another way is to allege that the required conditions precedent of notices of default,
right to cure, and acceleration were not given by the holderof your promissory note and mortgage or its actual representative while your loan was in a
securitized trust.
Fourth, if false pleading allegations and especially if false affidavits/declarations were submitted
to the court as to the ownership of your mortgage loan, you should seek an order to show causewhy your foreclosing mortgagee should not be held in contempt of court (and many States
including Hawaii, New York, and New Jersey now hold the attorneys representing foreclosing
mortgagees also liable and subject to disciplinary proceedings for such false submissions), or file
a separate independent lawsuit for fraud on the court, again stressing how you have been injuredincurring, for instance, attorneys fees and costs.
Fifth,borrowers can also allege and prove prejudice if they paid a mortgage insurance premium,as many borrowers do, as a part of their loan agreement and monthly mortgage payment
obligation, to the extent that it can be argued and in discovery it can be shown either that a
mortgage insurance company made payments to the trust or to investors on their loan if they didnot, or that their foreclosing mortgage damaged them by failing to submit an insurance claim,
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while alleging that they were parties to that mortgage insurance policy, indeed, the payor, if not a
direct third-party beneficiary. This has remained a largely low visibility and almost entirely
ignored area of foreclosure defense.
The above is not to suggest that borrowers and attorneys should not continue to also attack the
securitized trusts head on, for example arguing that the trust laws of Delaware and New York,for instance, render acts of trustees void if property is treated by the trustee
in
violation of the language of the trust instrument which in the case of securitized trusts is usuallycalled its Pooling and Servicing Agreement, and/or that various mortgage assignments in its
shadow banking world occurred while MERS was assigning a mortgage on behalf of an entity inbankruptcy proceedings and without the permission of the bankruptcy court and/or while not
having listed the mortgage as an asset of the bankruptcy estate, amounting to bankruptcy fraud.
Finding whether a loan is in one securitized trust or even unlawfully in more than one securitized
trust is, however, not an easy task.
Only a few law firms including mine and a few forensic advisors nationwide have found a
reliable way to do that tricky research, and even then it appears that securitized trusts are
understandably working around the clock to block such access at the present time.
This new research tool, although proving extremely valuable for an increasing number of
borrowers, will no doubt be met with continued resistance by courts that, although becoming
more and more educated on securitized trust abuses and the shadow banking system thatsecuritized trusts and MERS have created, can be expected to nevertheless be, as usual, slow to
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provide relief as millions of borrowers in the meantime will continue unjustly to be evicted from
their homes.
There are positive indications that finally state legislatures and local municipalities will more
rapidly be coming to the rescue of abused borrowers very shortly, a new and expected
development in the war against abusive securitized trusts to be highlighted in a subsequent articlein Dearly Clear.
Meanwhile, every borrower should immediately attempt to learn if his or her mortgage loan wasor is trading in one or more securitized trusts as the first step in preparing a foreclosure defense
or seeking damages thereafter for wrongful foreclosureeven if already foreclosed on either
judicially or nonjudically, and even if his or her property has already been sold.
DUBIN LAW OFFICES
Suite 3100, Harbor Court55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300Facsimile: (808) 523-7733
Email:gdubin@dubinlaw.net
___________________________________________________________________
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Research is expensivehowever, it is the key in many cases as it uncovers layers of
fraud committed by the servicers, the lenders, thetrustees and a host of other affiliates including MERS.
What a joke MERS really is! Supposedly, through MERS the homeowners and investors are ableto know precisely what is going on and where their loan is at any given timeWhat a crock of
nonsense that is!
Take the Pascual family for example. Aurora decided to foreclose in October 2009 after, of
course, the modification dance first the forced default in order to get HAMP help, then
the repetitive submission of paperwork, phone calls, more paperwork, more phone calls andeventually, the denial
Only Aurora failed to tell the Pascuals and the Court, Judge Seabright, (oranyone for that matter) that the Pascual loan was (and is) actively trading in the LEHMAN XS
TRUST Mortgage Pass-Through Certificates, Series 2007-5H. The Trust did not foreclose
and apparently had no damage to foreclose because the Trust tranche where the Pascual loan
allegedly landed had no losses in 2009everything was paid.
It appears Aurora did not buy the loan out of the Trust because it is still actively trading and
Aurora is only the servicer Ownership actually belongs to the Trust investors.
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And there was no paperwork that accompanied the foreclosure notices or eviction complaint that
would establish Aurora as anything more than a servicer
But it gets even betterthere is NO assignment of mortgage to the Trust to befoundAurora, the Master Servicer failed to file an assignment to the Trust in the Hawaii public
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recordation; however, they filed an assignment from MERS to themselves oh, what a wicked
web we weave, when first we practice to deceive
When challenged with the truth that the Pascual loan was noted in the LEHMAN XSTRUST Aurora failed miserably. As stated in the recentPascual Replybrief composed by
Frederick Arensmeyer of the Dubin Law Offices:
Rather than making any attempt to rebut this newly discovered evidence (which it clearly
cannot do), Defendant Aurora in its oppositionin complete disregard of its priorfraudulentmisrepresentation to this court that it in fact was the holder of the notemerely argues thatPlaintiffs could have previously presented this evidence in their memorandum in opposition or at
the hearing onDefendants motion for summary judgment. Defendant Aurora is mistaken, anditsfailure to offer any rebuttal is itself grounds for granting Plaintiffs instant motion.1 (citing in
foonote 1):
1. Cf. Naranjo v. SBMC Mortg., 2012 WL 3030370, *3 (S.D. Cal., July 24,2012) (The vital
allegation in this case is the assignment of the loan into the WAMU Trust wasnot completed by May 30, 2006 as required by the Trust Agreement. This allegation gives
rise to a plausible inference that the subsequent assignment, substitution, and notice ofdefault and election to sell may also be improper. Defendants wholly fail to address thatissue. . .. This reason alone is sufficient to deny Defendants motion with respect to thisissue. (Emphasisadded)).
How does the average homeowner or their
attorney find this information. As Mr. Arensmeyer continues in the reply brief: Plaintiffs
contracted with a finance expert to conduct a very specialized investigation utilizing anadvanced computer system regularly relied upon by professionals in the finance and investment
industries.
Furthermore, this newly discovered evidence is not of the type that is readily available to
borrowers, the public, or even most attorneys, and Plaintiffs cannot reasonably have
been expected to present such evidence before the prior hearing.
Aurora never expected that anyone would research the loans onBloomberg Terminal. It appears,
Aurora (and their attorneys), obviously think of the judges, homeowners and foreclosure defense
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lawyers as complete buffoons. This thought process enables them to think they can get away
with fraud. Hopefully, Judge Seabright will throw the book at themsua sponte!
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14 thoughts on SECURITIZED DISTRUST
PART TWO
1. justiceleague00onAugust 2, 2012 at 8:53 pmsaid:
Reblogged this onJustice League.
Reply
2. James GreenonAugust 5, 2012 at 5:41 amsaid:
This article is wonderful. Very insightful and pretty much what I have been saying since2010 . In fact there is a case that i wrote the brief for a woman prose in Kings County
New York where the end result was that the foreclosure judgment was vacated pursuantto CPLR 5015(a)2 and CPLR 5015(a)3 after the sale to defunct Fremont Investment and
loan as result of them as plaintiff hiding who actually owned the note. Please Google
Fremont vs Davilar.
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The funny thing is that I did not have a Bloomberg terminal to uncover said evidence. In
fact I used a little known federal law that requires a servicer if ask in writing pursuant to
15 USC 1641(f)2 and or 15 USC 1641(g)1 to reveal who is the actual owner of themortgage as defined by the Federal Reserve. Litton the loan servicer at the time, spilled
the beans and provided information that HSBC as Trustee was the real owner. Add this to
the fact that I showed a pattern in other cases of them trying to do such a thing bymisrepresenting that Fremont Investment and Loan was the owner of the loan during theaction and the servicer ended up sending the borrower a 1099C to cancel said debt. I had
a matter with Aurora Loan Services where they did the same thing and got a foreclosure
judgment vacated and dismissed. I sent Aurora Loan Services the letter pursuant to 15USC 1641(f)2 asking who owned the mortgage and note and there corporate lawyers
Mcginnis ,Tessitore Wutchester LLP came back with LEHMAN XS TRUST Mortgage
Pass-Through Certificates, Series 2006-15 as owner. The foreclosure was dismissed for
failure to meet a condition precedent pursuant to CPLR 3211(a)7
Reply
o Elisabeth BergeronAugust 5, 2012 at 9:52 pmsaid:
Great ArticleReat Reply!
Aurora Loan Services LLCthen Aurora BAnk FSB sold the service to adifferent company now out of Texas.
Could you please send me your sample letter in order to request in writing
pursuant to 15 USC 1641 (f)2 and or 15 USC 1641 (g)1 to reveal who the actual
owner of the mortage is as defined by the Federal Reserve.That would be tramendously helpful for my foreclosure situation.
Thank you so very much!
Reply
Ben onAugust 6, 2012 at 5:40 amsaid:
Please e-mail copy of letter, 15 usc 1641(f)2 asking who owns the
mortgage and the note Thanks BH
Eloise Haake onSeptember 12, 2012 at 11:23 amsaid:
Please email me the sample letter , 15 usc 1641(f)2 asking who owns themortgage and the note thanks for me> Eloise
o Eugene VillarrealonAugust 6, 2012 at 2:15 amsaid:
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Could you send me also your sample letter.
Reply
o Mark onAugust 6, 2012 at 10:34 amsaid:
I would love a copy of that form letter as well so I can find where my loan isbeing traded.
Reply
james greenonAugust 12, 2012 at 5:55 pmsaid:
Sorry this blog never notified me that it had replies. please email me at
smartenupconsulting@gmail.comor copy the following posted here
John Doe
100 Fulton AvenueHempstead, NY 11550
IndyMac Mortgage ServicesP.O. Box 4045
Kalamazoo, MI 49003-4045
CERTIFIED MAIL RETURN RECEIPT#Re: Loan No: 12345676
To Whom It May Concern:
This is a qualified written request under Section 6 of the Real Estate
Settlement Procedures Act (RESPA).
I understand that under Section 6 of RESPA and the Frank Dodd Act youare required to acknowledge my request within 5 business days and must
try to resolve the issue within 20 business days.
This is also a notice sent pursuant to the Fair Debt Collection Practices
Act, 15 USC 1692e Sec. 807 in regards to any additional informationregarding your authority to collect this debt on behalf of the alleged
creditor. I specially cite subsection (10) from the statue which states that
the use of any false representation or deceptive means to collect or attemptto collect any debt or to obtain information concerning a consumer is aviolation of this section.
This is NOT a request for verification or proof of my mailing address,
but a request for VALIDATION and your authority to negotiate andcollect on behalf of the principal pursuant to the above named Title and
Section, 5-701 and 5-702 of NY General Obligations Law
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I respectfully request that your office provide me with competent evidence
that you have legal authority to negotiate this debt on behalf of the name
creditor with proof of agency status and that said creditor is the owner andholder of said instrument pursuant to 15 USC 1641(f)2.
15 USC 1641(f)2 states Servicer not treated as owner on basis of
assignment for administrative convenience.
A servicer of a consumer obligation arising from a consumer credit
transaction shall not be treated as the owner of the obligation for purposesof this section on the basis of an assignment of the obligation from the
creditor or another assignee to the servicer solely for the administrative
convenience of the servicer in servicing the obligation. Upon written
request by the obligor, the servicer shall provide the obligor, to the bestknowledge of the servicer, with the name, address, and telephone number
of the owner of the obligation or the master servicer of the obligation.
15 USC 1641(g)1 states In addition to other disclosures required by this
title, not later than 30 days after the date on which a mortgage loan is soldor otherwise transferred or assigned to a third party, the creditor that is the
new owner or assignee of the debt shall notify the borrower in writing ofsuch transfer, including(A) the identity, address, telephone number of the new creditor;
(B) the date of transfer;
(C) how to reach an agent or party having authority to act on behalfofthe new creditor;
(D) the location of the place where transfer of ownership of the debt is
recorded; and
(E) any other relevant information regarding the new creditor.Please provide me with the following:
What the money you say I owe is for;
Explain and show me how you calculated what you say I owe;
Provide me with copies of any papers that show I agreed to pay what yousay I owe; (STATUE OF FRAUDS)
Provide a certified copy of said note to show that said note is owned by
the creditor. Identify the name, address, and telephone number current owner of the
debt as defined by 15 USC 1641(f)2 and whether the debt has been
transferred to any other creditor pursuant to 15 USC 1641(g)1 and the
name of the new creditor address, and telephone number of the newcreditor; the date of transfer; how to reach an agent or party having
authority to act on behalf of the new creditor; the location of the place
where transfer of ownership of the debt is recorded; and any other relevantinformation regarding the new creditor.;
the result of the NPV test and the detailed explanation of the NPV
methodology and model including all formulas and variables for themodification application for 100 Fulton Avenue Hempstead, New York
11550.
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If your offices have reported invalidated information to any of the three
major Credit Bureaus (Equifax, Experian or TransUnion), said action
might constitute fraud under both Federal and State Laws. Due to this fact,if any negative mark is found on any of my credit reports by your
company or the company that you represent I will not hesitate in bringing
legal action against you for the following: Violation of the Fair Credit Reporting Act Violation of the Fair Debt Collection Practices Act
Truth In Lending Act
Defamation of Character
Also during this validation period, if any action is taken which could be
considered detrimental to any of my credit reports, I will consult with mylegal counsel. This includes any information to a credit reporting
repository that could be inaccurate or invalidated or verifying an account
as accurate when in fact there is no provided proof that it is.
If your offices fail to respond to this validation request within 30 daysfrom the date of your receipt, all references to this account must be deleted
and completely removed from my credit file and a copy of such deletionrequest shall be sent to me immediately.I would also like to request, in writing, that no telephone contact be made
by your offices to my home or to my place of employment. If your offices
attempt telephone communication with me, including but not limited tocomputer generated calls or correspondence sent to any third parties, it
will be considered harassment and I will have no choice but to file suit.
All future communications with me MUST be done in writing and sent to
the address noted in this letter.This is an attempt to correct your records, any information obtained shall
be used for that purpose.
Best Regards,
John Doe
o MilesonOctober 2, 2012 at 11:32 amsaid:
Hello James, Very insightfulI am in California and had a property sold underthe direction of MERS with Aurora as Servicer back in 2006. Unaware of the
procedural rules you have noted. Can a foreclosure be reversed by not following
these rules?
Reply
3. Pingback:Deadly Clear | SECURITIZED DISTRUSTPART TWO | Challenge Your
Lender
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5. Charles Reed onAugust 6, 2012 at 6:09 amsaid:
I been reporting this exact situation with MERS, Wells Fargo Bank and Ginnie Mae. It sorefreshing to see the world is finally getting it. This crime is huge a most Americans
dont realize the financial problem they are faced with because of Ginnie Mae MortgageBacked Securities and the crimes committed with the illegal foreclosures that have been
committed. This is about Contract Law!
Reply
6. Bonnie PalinkasonFebruary 22, 2013 at 7:52 amsaid:
In 2008 we re-mortgaged with Countrywide Home Loans (FHA loan). There was an
accident and we filed for partial claim #1. Took over 1 year of massive paperwork and
the claim was accepted and paid. Back to normal servicing. Countrywide sold out to BAC
Home Loans and then transitioned to Bank of America. In 2010 husbands health failedand filed partial claim #2. FHA approved and paid claim in August 2010. Thereafter
received letter from BAC Home Loans back to normal servicing and Precepatae to
Discontinue and End filed in courthouse by BAC attorneys. In October 2010 receivednotice of intent to foreclose. We frantically called FHA and BOA to see what happened,
as we continued to pay our monthly mortgage payments. FHA blamed BOA and vica
versa. In the end spoke to a CEO at FHA (Kevin) and was told they were instructed to
reverse payments due to an overpayment. FHA reversed ALL payments made on PC2,and never notified us of their intentions, nor did BAC Home Loans notify us of their
intentions to have payments reversed. We continually made monthly mortgage payments
until BOA (now Bank of America and not BAC Home Loans) would not accept ourpayment in March of 2012. We had hired an attorney in Florida (May of 2012) and
nothing seems to be spurring on it. We have an IRS lien for PIT 2005, 2006 holding back
the modification process. BOA wants a certification of subordination from IRS and IRSwants proof that mod will take place (a catch 22 situation here). None of this would have
happened hadnt the payments been reversed. We have wrong doing done to us here. We
have had 2 court hearings; granted 60 day stay at both. Time is running out. We now had
to go per the advice of the Court Master to CACLV to get help. Any help would be
appreciated on our situation at hand. We have lived in our home since 1974 and do notwant to lose our home.
Reply
o Deadly ClearonFebruary 22, 2013 at 8:06 amsaid:
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There are several good foreclosure defense attorneys in Florida Not many good
Judges though. Jacqulyn Mack, Mack Law Firm; Matt Weidnertwo good
defense attorneys off the top of my list. Sure there are several more.
Reply
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I am a paralegal. I am not an attorney. I do not play one on TV. Nothing in this blog should be
construed as legal advice. If you need legal advice you should consult an attorney. DeadlyClearis a product of Entertainment Marketing in association with Project Maui, Inc., a Hawaii
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