Walking Away and Keeping Your House: Strategic Default Strategy

A provocative paper by Brent White, a law professor at the University of Arizona, makes the case that borrowers are actually suffering from a “norm asymmetry.” In other words, they think they are obligated to repay their loans even if it is not in their financial interest to do so, while their lenders are free to do whatever maximizes profits. It’s as if borrowers are playing in a poker game in which they are the only ones who think bluffing is unethical.

borrowers in nonrecourse states pay extra for the right to default without recourse. In a report prepared for the Department of Housing and Urban Development, Susan Woodward, an economist, estimated that home buyers in such states paid an extra $800 in closing costs for each $100,000 they borrowed. These fees are not made explicit to the borrower, but if they were, more people might be willing to default, figuring that they had paid for the right to do so.

Editor’s Note: Here is a strategy straight out of the tax shelter playbook that could result in widespread relief for homeowners underwater. It comes from a high-finance tax shelter expert who shall remain unnamed. He and a group of other people with real money are thinking of establishing a clearinghouse for these transactions.The author of this strategy ranks very high in finance and law but he cautions, as do I, that you should utilize the services of only the most sophisticated property lawyers licensed to do business in appropriate jurisdictions before initiating any action under this delightful reversal of fortune, restoring equity, possession and clearing title to the millions of properties that could fall under the rubric of his plan. He even invites others to compete with his group, starting their own clearing houses (like a dating service) since he obviously could not handle all the volume.

The bottom line is that it leaves you in your home paying low rent on a long-term lease, forces the pretender lender (non-creditor) to file a judicial foreclosure, and throws a monkey wrench into the current  foreclosure scheme. I am not endorsing it, just reporting it. This is not legal advice. It is for information and entertainment purposes.

  1. John Smith and Mary Jones each own homes that are underwater. Maybe they live near each other, maybe they don’t. To make it simple let’s assume they are in the same subdivision in the same model house and each owes $500,000 on a house that is now worth $250,000. Their payments for amortization and interest are currently $3500 per month. The likelihood that their homes will ever be worth more than the principal due on the mortgage is zero.
  2. John and Mary are both up to date on their payments but considering just walking away because they have no stake in the outcome. Rents for comparable homes in their neighborhoods are a fraction of what they are paying monthly now on a mortgage based upon a false appraisal value.
  3. In those states where mortgages are officially or unofficially “non-recourse” they can’t be sued for the loss that the bank takes on repossession, sale or foreclosure.
  4. John and Mary find out about each other and enter into the following deal:
  5. First, John and Mary enter into 15 year lease wherein Mary takes possession of John’s house and pays $1,000 per month in a net-net lease (Tenant pays all expenses — taxes, insurance, maintenance and utilities). There are some laws around (Federal and State) that state that even if the house is foreclosed, the “Buyer” must honor the terms of the lease. But even in those jurisdictions where the lease itself is subject to being foreclosed, John and Mary agree to RECORD the lease along with an option to purchase the house for $250,000 (fair market value) wherein the seller takes a note for the balance at a 3% interest rate amortized over 30 years.
  6. So now Mary can have possession of the John house under a lease like any tenant. And she has an option to purchase the house for $250,000. And it’s all recorded just like the state’s recording statutes say you should.
  7. Second, John and Mary enter into a 15 year lease wherein John takes possession of Mary’s house and pays $1,000 per month in a net-net lease (Tenant pays all expenses — taxes, insurance, maintenance and utilities). There are some laws around (Federal and State) that state that even if the house is foreclosed, the “Buyer” must honor the terms of the lease. But even in those jurisdictions where the lease itself is subject to being foreclosed, John and Mary agree to RECORD the lease along with an option to purchase the house for $250,000 (fair market value) wherein the seller takes a note for the balance at a 3% interest rate amortized over 30 years.
  8. So now John can have possession of the Mary house under a lease like any tenant. And he has an option to purchase the house for $250,000. And it’s all recorded just like the state’s recording statutes say you should.
  9. Third, John and Mary enter into a sublease (expressly permitted under the terms of the original lease) where in John (or his wife or other relative) sublet the John house from Mary for $1100 per month.
  10. So John now has rights to possession of the John house under a sublease. In other words, he doesn’t move.
  11. Fourth John and Mary enter into a sublease (expressly permitted under the terms of the original lease) where in Mary (or her husband or other relative) sublet the Mary house from John for$1100 per month.
  12. So Mary now has rights to possession of the Mary house under a sublease. In other words, she doesn’t move.
  13. Fifth, under terms expressly allowed in the lease and sublease, John and Mary SWAP options to purchase and record that instrument as well as an assignment.
  14. So now John has an option to purchase the home he started with for $250,000 and Mary has an option to purchase the home she started with for $250,000 and both of them are now tenants in their own homes.
  15. Presumably under this plan eviction or unlawful detainer is not an option for anyone claiming to be a creditor, wanting to foreclose. Obviously you would want to consult with a very knowledgeable property lawyer licensed in the appropriate jurisdiction before launching this strategy.
  16. In the event of foreclosure, even in a non-judicial state, would be subject to rules requiring a judicial foreclosure which means the pretender lender would be required to plead and prove their status as creditor and their right to collect on the note and foreclose on the mortgage.
  17. Meanwhile, after all their documents are duly recorded, John and Mary start paying rent pursuant to their sublease and stop paying anyone on the mortgages.
  18. Any would-be forecloser would probably have a claim to collect that rent, but other than that they are stuck with a house where they got title (under dubious color of authority) without any right to possession (unless they prove a case to the contrary — the burden is on them).
  19. If you want to slip in a poison pill, you could put a provision in the lease that in the event of foreclosure or any proceedings that threaten dispossession or derogation of the lease rights, the lease converts from a net-net lease to a gross lease so the party getting title still gets the rent payment but now is required to pay the taxes, insurance and maintenance. Hence the commencement of foreclosure proceedings would trigger a negative cash flow for the would-be forecloser.
  20. To further poison the well, you could provide expressly in the lease that the failure of the landlord or successor to the Landlord to properly maintain tax, insurance and maintenance payments on the property is a material breach, triggering the right of the Tenant to withhold rent payments, and triggering a reduction of the option price from $250,000 to $125,000 with the same terms — tender of a  note, unsecured, for the full purchase price payable in equal monthly installments of interest and principal.

Not much difference than the chain of securitization is it?

January 24, 2010
Economic View New York Times

Underwater, but Will They Leave the Pool?

By RICHARD H. THALER

MUCH has been said about the high rate of home foreclosures, but the most interesting question may be this: Why is the mortgage default rate so low?

After all, millions of American homeowners are “underwater,” meaning that they owe more on their mortgages than their homes are worth. In Nevada, nearly two-thirds of homeowners are in this category. Yet most of them are dutifully continuing to pay their mortgages, despite substantial financial incentives for walking away from them.

A family that financed the entire purchase of a $600,000 home in 2006 could now find itself still owing most of that mortgage, even though the home is now worth only $300,000. The family could rent a similar home for much less than its monthly mortgage payment, saving thousands of dollars a year and hundreds of thousands over a decade.

Some homeowners may keep paying because they think it’s immoral to default. This view has been reinforced by government officials like former Treasury Secretary Henry M. Paulson Jr., who while in office said that anyone who walked away from a mortgage would be “simply a speculator — and one who is not honoring his obligation.” (The irony of a former investment banker denouncing speculation seems to have been lost on him.)

But does this really come down to a question of morality?

A provocative paper by Brent White, a law professor at the University of Arizona, makes the case that borrowers are actually suffering from a “norm asymmetry.” In other words, they think they are obligated to repay their loans even if it is not in their financial interest to do so, while their lenders are free to do whatever maximizes profits. It’s as if borrowers are playing in a poker game in which they are the only ones who think bluffing is unethical.

That norm might have been appropriate when the lender was the local banker. More commonly these days, however, the loan was initiated by an aggressive mortgage broker who maximized his fees at the expense of the borrower’s costs, while the debt was packaged and sold to investors who bought mortgage-backed securities in the hope of earning high returns, using models that predicted possible default rates.

The morality argument is especially weak in a state like California or Arizona, where mortgages are so-called nonrecourse loans. That means the mortgage is secured by the home itself; in a default, the lender has no claim on a borrower’s other possessions. Nonrecourse mortgages may be viewed as financial transactions in which the borrower has the explicit option of giving the lender the keys to the house and walking away. Under these circumstances, deciding whether to default might be no more controversial than deciding whether to claim insurance after your house burns down.

In fact, borrowers in nonrecourse states pay extra for the right to default without recourse. In a report prepared for the Department of Housing and Urban Development, Susan Woodward, an economist, estimated that home buyers in such states paid an extra $800 in closing costs for each $100,000 they borrowed. These fees are not made explicit to the borrower, but if they were, more people might be willing to default, figuring that they had paid for the right to do so.

Morality aside, there are other factors deterring “strategic defaults,” whether in recourse or nonrecourse states. These include the economic and emotional costs of giving up one’s home and moving, the perceived social stigma of defaulting, and a serious hit to a borrower’s credit rating. Still, if they added up these costs, many households might find them to be far less than the cost of paying off an underwater mortgage.

An important implication is that we could be facing another wave of foreclosures, spurred less by spells of unemployment and more by strategic thinking. Research shows that bankruptcies and foreclosures are “contagious.” People are less likely to think it’s immoral to walk away from their home if they know others who have done so. And if enough people do it, the stigma begins to erode.

A spurt of strategic defaults in a neighborhood might also reduce some other psychic costs. For example, defaulting is more attractive if I can rent a nearby house that is much like mine (whose owner has also defaulted) without taking my children away from their friends and their school.

So far, lenders have been reluctant to renegotiate mortgages, and government programs to stimulate renegotiation have not gained much traction.

Eric Posner, a law professor, and Luigi Zingales, an economist, both from the University of Chicago, have made an interesting suggestion: Any homeowner whose mortgage is underwater and who lives in a ZIP code where home prices have fallen at least 20 percent should be eligible for a loan modification. The bank would be required to reduce the mortgage by the average price reduction of homes in the neighborhood. In return, it would get 50 percent of the average gain in neighborhood prices — if there is one — when the house is eventually sold.

Because their homes would no longer be underwater, many people would no longer have a reason to default. And they would be motivated to maintain their homes because, if they later sold for more than the average price increase, they would keep all the extra profit.

Banks are unlikely to endorse this if they think people will keep paying off their mortgages. But if a new wave of foreclosures begins, the banks, too, would be better off under this plan. Rather than getting only the house’s foreclosure value, they would also get part of the eventual upside when the owner voluntarily sold the house.

This plan, which would require Congressional action, would not cost the government anything. It may not be perfect, but something like it may be necessary to head off a tsunami of strategic defaults.

Richard H. Thaler is a professor of economics and behavioral science at the Booth School of Business at the University of Chicago.

19 Responses

  1. I think people tend to find scapegoats for the mistakes they make. If a person takes a loan on a house, they’re obligated to pay for it, and if they can’t they lose the house. If you paid too much, it’s your own fault. If you took too large a loan, it’s your own fault. Accept responsibility for your own actions.

  2. I love the plan! I am in Florida and after 4 months I was finally approved for a mortgage mod ,, basically a 1% haircut in the rate… won’t bore you with the runarounds and annoyances but 2 days before my first modified payment is due I get a letter basically saying the just approved mod is a dead deal and will never be approved for permanent status… They suggested applying for some new mortgage mod deal program.

    I am meeting with an attorney that “gets it” on Friday Feb 12,2010 … If they think this will work I will look for them to find a client of theirs for the “mortgage/tenant marriage/swap” …..

    If you are in central Florida send me a e:mail ,, What I really really like is that I’ll be defending and will have easier discovery (if I understand things well enough).

    Great Website ,, Thanks to all!!

  3. The lease scheme is a cute idea , but IMHO it has as much likelihood of success as declaring yourself a “church” and refusing to pay income taxes because you call your salary from work a “donation”. Sat in on a few of those trials back in the 1980s where the tax-protest crowd was chattering about how great the trial was going for their buddies, right up until the guilty verdict was announced and their buddies went to federal PMITA prison.

    In particular, in property law, you can only transfer to someone else the rights that you yourself have. If Albert buys a property such as a house, gets a mortgage on it from Banker Bill, and then leases the property to Corinne, Corinne doesn’t magically obtain unfettered rights to the property. There’s still that little matter of a secured mortgage lien on the property. That lien still exists even if Corinne then leases the house back to Albert. Corinne can stick a clause in the lease saying Albert can buy the house from her for $250K, or for $125K, or for $1, or for a Hershey bar (with almonds) and a can of Diet Coke, but that doesn’t eliminate the lien. Corinne can stick a clause in the lease saying Albert gets to lease the Brooklyn Bridge, too. Good luck getting a court to enforce it, recording or not.

    The folks who want to try this scam might want to look up the phrase “fraudulent conveyance”. Also take a look at how well the “pure trust” scam of the 1990s worked out for the people who dumped their money into those deals.

  4. Funny, was told my house was auctioned off this month – to Country Wide Mortgage??
    Part of a collateralized debt bond that they have, bought my house.
    So, Bank of America borrows 1/4% money from the government,then goes and buys foreclosures?
    I tried to get Wells Fargo to give me a break on my principle in my mortgage, and they said no way Jose!!
    So, they give a discount to another bank, so they can profit more from the mess they helped create??
    Hmmm- me smells something really fishy here.

  5. […] This post was mentioned on Twitter by Terry Short and Mary Sanders, PersonalBankruptcy . PersonalBankruptcy said: "Walking Away and Keeping Your House: Strategic Default Strategy ….." http://tinyurl.com/y8hnmag BankruptcyInformation […]

  6. @klh: i’m so sorry to hear about your situation. i’m pretty sure someone here will point you in the right direction, until then, i will be praying for you.

    @the a man: i did one better. i posted the link to this article on facebook. i have over 200 friends. hope that helps.

  7. An ingenious method for legally encumbering property … the pretender lender will certainly be expected to file a quiet title action to assert their “true ownership claims”. At that point in time, we could certainly beat them up over “potential” defects in the title, in recordation, in notarization, in the securitization process … and let’s not forget the fact that the “true parties in interest are not present in this court today, Your Honor”, along with our motion for summary judgment to slam dunk their case. hehe

  8. Yet another example of the media asymetry regarding strategic defaults: Here the corporate purchaser is simply “turning over the property to the creditors.” Just a business decision. No scornful “deadbeat speculator” label from politicians or regulators. Such monikers are not for corporations (nor for Wall Street for the matter), but are reserved only for individuals who purchased homes based on inflated appraisals and now can’t keep up their “moral obligation” to continue to pay for a home in which they’ll never have equity.

    With a purchase price of $5.4 billion, imagine what this baby paid out after default insurance, etc. to all intermediaries. The “creditors” are never even identified in the article.

    From the story: “We have spent the last few weeks negotiating in good faith to restructure the debt and ownership of Stuyvesant Town/Peter Cooper Village,” said the statement by the partnership. “Over the last few days, however, it has become clear to us through this process that the only viable alternative to bankruptcy would be to transfer control and operation of the property, in an orderly manner, to the lenders and their representatives.”

    From today’s NY Times at http://www.nytimes.com/2010/01/25/nyregion/25stuy.html?hp

  9. Well, I’m ready try this if someone else is! Thing is, can you find a good property attorney who will write up the leases?

  10. Can you do this if foreclosure suit is pending???

  11. FROM DEBTORS TO RENTORS.
    FROM RENTORS TO INVESTORS (HOUSE FREE AND CLEAR + DAMAGES)

  12. send the above article to ten people you know and ask them to send to ten others.

    THIS SHOULD BE THE MANTRA
    1. STOP PAYMENT WITH QWR AND DVL
    2. SUE FOR TREBLE DAMAGES SO IF YOU OWE A HALF MILLION SUE FOR 1.5 MILLION
    3. QUIET TITLE.

    forgot to ask Neil Garfield is it treble damage plus quiet title??????

    DONT FORGET THE BANKS HAVE A LOT OF MONEY THEY CAN AFFORD TO PAY. imagine sueing a private party for $1.5million even if you win good luck. Bank Of America has lots of money they can pay up.

    AT LEAST START A CHAIN WITH THE ABOVE ARTICLE
    10 PEOPLE SEND IT TO 10 PEOPLE.

  13. I wonder if this will work if the parties live in different states?

  14. Does anyone know what state laws or federal laws would apply? All I can find so far is if your lease was signed before the mortgage was recorded you can argue to continue renting until the lease expires, in Florida.

    BTW, libra 99 I did stop paying my cell phone bill with WOW http://www.freewowmobile.us
    Bob

  15. I am in a really terrible situation… I am facing an eviction on Jan. 28 2010, the Sheriff will be at my home. I purchased my home in Dec. 2005 in Van Nuys, Ca. My 69 year old mother lives with me. She is disabled from an attempted murder in 1986 in which she was robbed and set on fire after a substance was poured over her head. She is disfigured and I have taken care of her since then. In Sept. 2006 I took custody of my 16 year old twin daughters (now 18) because their grades were suffering. In late 2008 I started a loan modification with a “modification specialist” on a home The servicer, Ocwen Loan Servicing, in Florida finally agreed to the loan modification. With this modification specialist I found there were files needed by the servicer and the specialist wasn’t taking care of this. I then sent the files and started to deal with the modification myself. In Aug. 2009 I had not gotten a response from the servicer so I called them. They told me they needed three files that I had sent to them twice before which I told them but I told them I would fax the files and send them by mail also. The next day I got a letter in the mail saying I did not qualify for a modification on my second mortgage. This meant nothing to me because the servicer told me I can decide to pay whatever I wanted to on the second. They told me to let them know how much I wanted to pay. I assumed this meant there was no longer a second. Why else would a financial institution make this statement? Two days after I spoke to the servicer a man left a note on my door saying he’d purchased my home. I called the number on the note and spoke to a man named David Silver. He asked if he could come and speak to me and I agreed. At the meeting he said his company bought the home and would pay me $1500 to leave. I considered it but after the meeting I became upset about being fooled by the servicer. I started to look into this “so-called” sale and found issues with the chain of Title. Soon after I received the Unlawful Detainer notice. The Plaintiffs were listed as “DKDAR Trustee for the 5850 Vesper Trust, UDT 8/12/09. The name of this Trust was my address. I learned this was only a P.O. Box. As well, I learned the real name of the david person who came to my home to meet. David Darwish. He and his wife, Barbara Darwish were part of this transaction. I looked for help online and found people who helped me file the answer to the UD. One of the people online is a specialist who found that these people were involved in a Federal R.I.C.O trail in downtown Los Angeles for mortgage fraud which was to start in Nov. 2009. I have a copy of that case file. I also found their attorney Stephen Downey was suspended for a year for mortgage fraud and reprimanded be the CA. Bar in 2008 for misconduct concerning Real Estate. His email is evictman@aol.com. Soon after I filed a Demurrer which the judge sustained. The plaintiff atty. who showed up in court for the hearing was not Stephen Downey but his partner Lisa Rosenthal. She called me an f***ing idiot in the hallway outside the court room. But two days before I was to go to the first hearing in Unlawful detainer court Plaintiff Barbara Darwish started calling my mother on her phone which was never given to anyone on any filing at all. I don’t now how that got her number . Barbara Darwish called more than 10 times harassing her about the house belonging to them. I called the number on my mother phone and learned it was the number the David guy had written on the note left on my door. I called and the woman, Barbara Darwish, started yelling and threatening to come into my home without permission to change the locks and show my home to buyers. I told her she had an attorney and she shouldn’t be calling us. She called me more than 9 times over the next day. On the day of the court hearing at 8:30 am as I was walking into court my mother called me telling me that Barbara Darwish was outside banging on the door wanting to change the locks. I had my mother call the police. I tried to focus on the hearing so I would loose my case because of this person. My mother called again when the police arrived. I spoke to the officer telling him I was in court and Darwish had no order or right to be at my home. They said they would take care of it. I was very worried as I went into court. The Judge sustained my motion and I went home. The officers were there when I arrived home. They said Darwish wanted them to make us leave. They had to call a Sergeant and Lieutenant to convince her to leave. I then tried to file a complaint against her with LAPD but they would only allow me to file a harassing phone call complaint. I filed a restraining order on the Darwish’s but the Sheriff could not serve them from their P.O. Box. After this I tried to find an attorney to help me but they (5 atty.) wanted from $10,000 to $17,000 dollars to help me. I started a Web Design business just three weeks before all this happened and tried to keep working but soon was overwhelmed with the load of study it took to file my court responses. I also filed a Motion to dismiss this UD case because the UD court lack jurisdiction of this subject matter which is; I am the owner not a tenant and there is a dispute over the Title. This was a matter for the Unlimited Superior court which is where these people would have taken me if they had a real purchase and assignment. They, like thousands of other cases, were using the UD court to defraud me of my home . This is called fraud upon the court. My motion to dismiss was denied. I then knew I had to file a Quiet Title and a motion to Consolidate. But I didn’t know I had to file another answer to the Unlawful Detainer. This allowed the Plaintiffs to get a Default judgment against me on Dec. 23, 2009. I received a Sheriffs lock out letter on my door Jan. 4, 2010. I had to answer quickly. I answered in court but the judge said I notified the Plaintiffs incorrectly. She denied my answer and allowed the Darwish’s to continue with their eviction of me from my home. I have already filed the Quiet Title, which will resolve the matter of real Title but this eviction is continuing. I filed a motion to set aside the default due to a inadvertent mistake. I also put the information about the harassment, which is illegal under CA. law. I notified the judge of the RICO case in Federal court against these people. She ignored all of this. I also notated the judges earlier denial on my motion, which was based on her saying I notified the other side incorrectly. Her ruling was incorrect because the rule also states that I can give shorter notice to the other side if it is urgent and reasonable. It was urgent because the eviction was to be on saturday and the court doesn’t hear ex parte on friday. I scheduled the hearing for thursday 1:30 pm and notified the Plaintiffs lawyer at 9:00 am. The judge said she would have heard it on friday if it was an emergency. I told her I would have no way of knowing that, that’s why I chose thursday. As well the plaintiff lawyer showed up which illustrates he had enough time to arrive and I add the presence of the opposing side is not mandatory for ex parte hearings. The judge ignored all of this as if she was part of the other sides team. My daughters have not been an issue in this because they returned back with their mother in 2007. But we did plan for them to live with me during college. If my family is evicted we will be homeless, as my credit has been destroyed by this. There is not enough time to properly relocate, my income has suffered due to this action and my mother needs my care. It is within the judges power to allow me to stay in my home while I now sue these people over the fraud of the Title of my home. They will be able to quickly sale of transfer my home to someone else if we’re evicted. She has made a decision over the Title which is not in her power to do. I have filed a couple other motions, which I go in for on monday Jan. 25, 2010. I hope there is some way to get the judge to allow us to stay in my home while my case is tried in court. The Sheriff will be out to evict on Jan.28, 2010. This is terrible for us. There is so little time before this will become a tragedy for us. My number is 213-550-7654 if someone can help. Thanks

  16. I’ve stated before that everyone should not only stop paying their mortgages; but their CC’s, car-loans, and student loans. None of them are worth the paper they’re written on. And honestly, stop paying the damn IRS their bounty as well. Break their damn back !! The ONLY way we’ll ever beat this is utter and outright rebellion; it will never be won in the corruption that is the US court system.

    Steve
    99Libra@gmail.com

  17. If you can get enough people to stop paying their mortgages, the whole “mortgage-backed security” business would implode. Then the banks would HAVE TO SHOW THE LOSSES, instead of concealing them in “bankruptcy-remote” off-balance-sheet entities. I like it!

  18. All very interesting but what the US faces is a massive depression and runaway deflation, similar to
    the 1930’s (perhaps worse).
    The only solution to this problem is a “managed deflation”, whereby the government ie Mr. O’Bama,
    takes decisive action.
    The first step would be a moratorium on all mortgage interest. I know it sounds crazy but it isn’t when you consider that the commercial banks only
    monetized the appraised value of the properties, not the interest, so there is no way the interest could ever
    be repaid without destroying the dollar in the process.
    The moratorium on interest would allow the principal to be paid back in dollars that are worth more
    than today’s dollars, so there would be no need for interest to compensate the true lenders and investors.
    In deflation, just getting back your investment is a major accomplishment.
    The moratorium on interest would free up money for other purposes and stimulate the economy without
    further stimulus payments by the Federal Government.
    It would also allow the Government to increase taxes
    without harming the economy and help pay down the
    national debt.
    I call this the “Federalist Solution” to America’s debt problem. If you agree, run for office as a Federalist or at least find someone else who is a
    glutton for punishment with a big ego and let him or her do it! Possibly retired military officers who have
    the means and the brains to get it done!

  19. WOW…..WOW…..WOW!!!!!!!!!!!!!!!! I love the irony and the satisfaction of it all, indeed the whole idea is make them “HAVE” to prove what they cannot prove. I am looking for a very knowledgeable property attorney as I type….

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