STRATEGY: STANDARD HAMP MODIFICATION LETTER FROM PRETENDER LENDER

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

EDITOR’S NOTE: THE ANSWER IS YES, THIS IS WHAT I HAVE SEEN FROM REPORTS ALL OVER THE COUNTRY. But the BIG LIE is that the writer had any authority to sign the letter, whether the company for whom he/she was signing had any right to consider HAMP or settlement or modification of any kind, and whether your action in “cooperating” with these people will be used as your admission that they are in fact the lender or that they do in fact have the authority to act for the lender.

HERE IS A SIMPLE TEST: If you offered to pay off the full balance due on the obligation, who would sign the satisfaction of mortgage? Whoever is offered by the pretender lender, take that information to an independent title agent and ask them if THAT party can execute a satisfaction of mortgage wherein THAT title agent would issue a title policy without exceptions regarding the securitization of the loan. And yes it IS that simple.

My take is that before you start HAMP or anything else, and particularly if you are in court, you make them PROVE their authority. You waive our COMBO analysis at them, give it to the Judge, if he’ll take it, get an expert opinion if necessary and say “Look, you say you are the servicer and that you have the authority to modify this loan. I have a report here that raises serious questions of fact as to whether you have any apparent or actual authority other than through your own self-serving statements. I want to see your authority and question the signators on any documents that you are using — and I want to see the originals. THEN after you have proven your authority to my satisfaction or the Court’s satisfaction, we can start the HAMP process or settle the case.”

STRATEGIC NOTE: IT ALWAYS COMES DOWN TO THE SAME THING. IF YOU GIVE IT UP, YOU WILL LOSE, IF YOU DON’T YOU HAVE AN INCREASING CHANCE OF WINNING OR SETTLING YOUR CASE. DON’T GET CAUGHT UP IN THEIR NARRATIVE AND DON’T TAKE THEIR WORD FOR ANYTHING. THE LAWYERS ARE FREQUENTLY LYING, THEIR CLIENTS ARE LYING AND THE ENTIRE PROCEDURE IS IN MY OPINION COMPLETELY FALSE, VOID AND FRAUDULENT. IF THE REAL CREDITOR HAD STEPPED FORWARD, THE MODIFICATIONS WOULD BE HAPPENING AT THE RATE OF  THOUSANDS PER DAY. BUT THE REAL CREDITORS ARE NOWHERE TO  BE FOUND IN MODERN FORECLOSURE ACTIONS.

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Neil,
I received the following e-mail after a case I recently filed. We are in receipt of your lawsuit alleging a failure to modify under and/or comply with HAMP. The law is clear: HAMP does not require a lender or servicer to modify any eligible loan, nor does it provide any private right of action to your clients. See below:

Simon v. Bank of America, N.A., 2010 WL 2609436, at *10 (D. Nev. June 23, 2010) (“…district courts have consistently held that the Home Affordable Modification Program does not provide borrowers with a private cause of action against lenders for failing to consider their application for loan modification, or even to modify an eligible loan.” See, e .g., Lucero v. Countrywide Bank N.A.,NO. 09-CV-1742, 2010 WL 1880649, at *3-4 (S.D.Cal. May 10, 2010); Villa v. Wells Fargo Bank, N.A., NO. 10-CV-0081, 2010 WL 935680, at *3 (S.D.Cal., March 15, 2010); Aleem v. Bank Of America, 09-CV-01812, 2010 WL 532330, at *4 (C.D.Cal. Feb. 09, 2010); Escobedo v. Countrywide Home Loans, Inc.,09-CV-1557, 2009 WL 4981618, at *2-3 (S.D.Cal. Dec. 15, 2009″); Dugger v. Bank of America, N.A./Countrywide Home Loans, 2010 WL 3258383, at *2 (E.D. Mo. August 16, 2010) (“.neither EESA, TARP, nor HAMP provides a private right of action to individual borrowers.”) Absent express statutory authorization, courts can only find a private right of action if there is affirmative evidence of Congress’s intent to create a private right of action. Erwin Chemerinsky, Federal Jurisdiction § 6.3 (5th ed.2007); see also Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (refusing to create a private right of action under § 17(a) of the Securities Exchange Act of 1934 and stating that “our task is limited solely to determining whether Congress intended to create the private right of action asserted”).
Lenders are not even required to offer modifications under the HAMP. Marks v. Bank of America, N.A., 2010 WL 2572988, at *2-4 (D. Ariz., June 22, 2010) (“Under the HAMP, a qualified borrower would not be reasonable in relying on an agreement between a participating servicer and the U.S. Department of Treasury as manifesting an intention to confer a right on the borrower because the agreement does not require that the participating servicer modify eligible loans”); Simmons v. Countrywide Home Loans, Inc., 2010 WL 2635220, at *5 (S.D.Cal. June 29, 2010) (“.the [HAMP Servicer Participation] Agreement does not require that [the lender] modify all eligible loans.”).

Consequently, it is our opinion that your complaint fails to state a cause of action, is ripe for dismissal, and in fact may violate O.C.G.A. 9-15-14. Please dismiss it immediately. If this case is not dismissed and responsive pleadings are required to be filed, Saxon reserves all remedies available to it under O.C.G.A. 9-15-14 against both plaintiffs and their counsel, jointly and severally. Lastly, we are not the registered agent for Saxon, nor are we permitted to accept or acknowledge service of process for Saxon.

The font made it look like it was a form response. I was wondering if this is something you are seeing. If so, what are your thoughts? I responded that, since I am currently successfully handling around 40 of these cases, I am not too scared of their threats. Plus, my complaints allege that the homeowners are intended third party beneficiaries of the spa’s under HAMP, so I don’t think those cases would be on point anyway. Nevertheless, that was the most aggressive response I have had from a lender to date and I was wondering if this was a new trend.

Thank you, your thoughts would be appreciated.

Pete Ensign

36 Responses

  1. @ Cielo Ulpindo-

    Northern California_San Francisco Bay Area

    Chris Gardas
    Attorney At Law
    530 43rd Street
    Richmond, CA 94805
    Phone: (415) 407-4918 fax: (510) 778-1273
    chrisgardas@comcast.net

  2. It’s interesting because if the recording is not required as stated in the PSA, then why do they do it ?

    I’m not required to record these assignments, which are forged instrument ‘s which convey nothing at all and which were fabricated solely for use as false evidence in the foreclosure to memorialize a transaction which never actually took place, BUT I DO it anyway. Doesn’t make sense to me.

  3. Hey Don, Ca…I think they record just before NOD with a ROBO signed doc.

  4. “against the claim of any subsequent transferee or any successor to or creditor of the depositor or the seller. ”

    how about the claims of the related borrower?

  5. “The power of sale by non judicial means is contained in the civil code 2932. In order to be valid the assignment must be recorded California civil code 2932.5. ”

    so which is it?

  6. Hi, Can you please recommend a good foreclosure lawyer in San Jose, California area. I’ve been denied modification 3 times by Litton Loan. Already filed Chap 13, but my lawyer is not an expert in foreclosure . Greatly appreciates any recommendation.

  7. Assignments of the Mortgage Loans to the trustee (or its nominee) will be recorded in the appropriate public office for real property records, except in states such as California where in the opinion of counsel recording is not required to protect the trustee’s interests in the Mortgage Loan against the claim of any subsequent transferee or any successor to or creditor of the depositor or the seller. Under certain circumstances specified in the pooling and servicing agreement, the assignments will be recorded (at the Servicer’s expense).

  8. CALIFORNIA —

    INDYMAC MBS AS DEPOSITOR AND INDYMAC BANK FSB AS SELLER. THE OPINION OF COUNSEL DOES NOT FEEL THAT ASSIGNMENT IS NECESSARY IN CALIFORNIA. PAGE 51 OF PROSPECTUS.

    http://www.scribd.com/doc/44874932/PROSRECTIS-2007-A5-RAST-SERIES-2007E-PSA-3-1-2007

    Pursuant to the pooling and servicing agreement, on the closing date the depositor will assign without recourse to the trustee in trust for the benefit of the certificateholders all right, title and interest of the depositor in and to each Mortgage Loan and all interest in all other assets included in Residential Asset Securitization Trust 2007-A5.

    This assignment will include all scheduled payments received on or with respect to the Mortgage Loans that were due after the Cut-off Date, but not any principal and interest due on or before the Cut-off Date.

    In connection with the assignment of the Mortgage Loans, the depositor will deliver or cause to be delivered to the trustee the mortgage file, which contains among other things, the original mortgage note (and any modification or amendment to it) endorsed in blank without recourse, except that the depositor may deliver or cause to be delivered a lost note affidavit in lieu of any original mortgage note that has been lost, the original instrument creating a fIrst lien on the related mortgaged property with evidence of recording indicated thereon, an assignment in recordable form of the mortgage, the title policy with respect to the related mortgaged property and, if applicable, all recorded intervening assignments of the mortgage and any riders or modifications to the mortgage note and mortgage (except for any documents not returned from the public recording office, which will be delivered to the trustee as soon as the same is available to the depositor).

    With respect to up to 30% of the Mortgage Loans in each loan group, the depositor may deliver all or a portion of each related mortgage file to the trustee not later than five business days after the closing date. Assignments of the Mortgage Loans to the trustee (or its nominee) will be recorded in the appropriate public office for real property records, except in states such as California where in the opinion of counsel recording is not required to protect the trustee’s interests in the Mortgage Loan against the claim of any subsequent transferee or any successor to or creditor of the depositor or the seller. Under certain circumstances specified in the pooling and servicing agreement, the assignments will be recorded (at the Servicer’s expense).

    The trustee will review each mortgage file relating to the Mortgage Loans within 90 days of the closing date (or promptly after the trustee’s receipt of any document permitted to be delivered after the closing date) and if any document in a mortgage file is found to be missing or defective in a material respect adverse to the interests of the certificateholders in the related Mortgage Loan and the seller does not cure the defect within 90 days of notice of the defect from the trustee (or within such longer period not to exceed 720 days after the closing date as provided in the pooling and servicing agreement in the case of missing documents not returned from the public recordingoffice), the seller will be obligated to repurchase the related Mortgage Loan from the issuing entity.

    The trustee will hold the Mortgage Loan documents in trust for the benefit of the certificateholders in accordance with its customary procedures, including storing the documents in fire-resistant facilities. Rather than repurchase the Mortgage Loan as provided above, the seller may remove the Mortgage Loan (referred to as a deleted Mortgage Loan) from the issuing entity and substitute in its place another Mortgage Loan (referred to as a replacement Mortgage Loan); however,
    such a substitution is permitted only within two years of the closing date and may not be made unless an opinion of counsel is provided to the trustee to the effect that substitution will not disqualify any REMIC or result in a prohibited transaction tax under the Code. Any replacement Mortgage Loan generally will, on the date of substitution, among other characteristics set forth in the pooling and servicing agreement

  9. A denied/stalled loan modification provides an excellent foundation to press the lack-of-standing issue of the pretender-lender: TO ENGAGE IN MEANINGFUL MODIFICATION NEGOTIATIONS, IT IS NECESSARY TO DETERMINE THE BANK’S AUTHORITY TO ENTER INTO ONE. Also, a lack of authority to modify likely explains repeated denials of a mod even where the person qualifies.

    Thus, no one is trying to get a free house, but the lack-of-standing point is raised to achieve the common good (encouraged by the government) of entering into a loan modification agreement.
    http://bryllaw.blogspot.com/2010/12/before-addressing-loan-modification-it.html

  10. That’s great information John, thank you for taking the time and helping me out here.

  11. OK Charlie, Read the bottom line of my last post…..YOU NEED BK ATTORNEY! Your state is a non judicial state.They don’t even need to go to court for a deficiency.

  12. Charlie….Virginia Foreclosure Law Summary

    Stop Virginia Foreclosure

    Quick Facts

    – Judicial Foreclosure Available: Yes

    – Non-Judicial Foreclosure Available: Yes

    – Primary Security Instruments: Deed of Trust, Mortgage

    – Timeline: Typically 60 days

    – Right of Redemption: Varies

    – Deficiency Judgments Allowed: Yes

    In Virginia, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or non-judicial foreclosure process.

    Judicial Foreclosure

    The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, is used when no power of sale is present in the mortgage or deed of trust. Generally, after the court declares a foreclosure, the property will be auctioned off to the highest bidder.

    The borrower has two hundred forty (240) days from the date of the sale to redeem the property by paying the amount for which the property was sold, plus six (6) percent interest.

    Non-Judicial Foreclosure

    The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A “power of sale” clause is the clause in a deed of trust or mortgage, in which the borrower pre-authorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the “Power of Sale Foreclosure Guidelines”.

    Power of Sale Foreclosure Guidelines

    If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. However, additional requirements must be met, as outlined below in section one (1).

    Even when the deed of trust makes allowances for advertising the foreclosure sale, Virginia Statutes require ads to be published no less than once a day for three days, which may be consecutive days. These requirements are in addition to the advertising terms stipulated in the deed of trust. If the deed of trust does not provide for advertising, then the ad shall be run once a week for four successive weeks. However, near a city, an ad on five different days, which may be consecutive, will be sufficient.

    A copy of the advertisement or a notice with the same information must be mailed to the borrower at least 14 days before the foreclosure sale.
    The foreclosure sale ad must include anything required by the deed of trust and may include a legal description of the property, a street address and a tax map identification or general information about the property’s location. The notice must include the time, place and terms of sale. It must give the name of the trustee and the address and phone number of a person who will be able to respond to inquiries about the foreclosure sale.

    Any time before the sale, the borrower may cure the default and stop the sale by paying the lien debt, costs and reasonable attorney’s fees.
    The sale, which may be held no earlier than eight (8) days after the first ad is published and no more than thirty (30) days after the last advertisement is published, is to be made at auction to the highest bidder. Any person other than the trustee may bid at the foreclosure sale, including a person who has submitted a written one-price bid. Written one-price bids may be made and shall be received by the trustee for entry by announcement of the trustee at the sale. Any bidder in attendance may inspect written bids. Additionally, the trustee may require bidders to place a cash deposit of up to ten (10) percent of the sale price, unless the dead of trust specifies a higher or lower amount.

    In the event of postponement of sale, which may be done at the discretion of the trustee, advertisement of such postponed sale shall be in the same manner as the original advertisement of sale.
    Once the sale is complete, the proceeds will go to: 1) the expenses of executing the trust; 2) to discharge all taxes, levies, and assessments, with costs and interest if they have priority over the lien of the deed of trust; 3) to discharge in the order of their priority, if any, the remaining debts and obligations secured by the deed, and any liens of record inferior to the deed of trust under which sale is made; 4) any remaining proceeds go to the borrower.
    Lenders may obtain deficiency judgments, without limits, in Virginia.

  13. A POWER OF SALE! NO WAY. .. .GOT IT!
    By M.Soliman

    Equitable mortgages don’t fit the criteria for a legal mortgage. They are not covered under a power of sale and cannot happen!

    Yet, in securitization it happens every day. These securitization registrations transfer the equity value out of the note and into a company’s balance sheet.

    Herein is divesture at work. It is as if the original loan was deflated to compensate for the transferring of the value to a corresponding instrument or different type of security.

    Now, re-engineer this, my senior “IT” Tech and latest media jack of all trades. MERS by its own admission claims to be the Beneficiary or holder of the security for the benefit of the security holder.

    A lender is the beneficiary and its nominee is elective. MERS is the custodian for the original beneficiary shown on the note.Otherwise, is the Nominee alleging a beneficial interest as a custodian for the successors and assigns; violating GAAP under a controlled sale?

    Or, are MERS and the Deed of trust hijinks the successors and assigns on behalf of the fractional ownership? This with meaning the transfer is intended to mean capitalizing a SPE or special purpose vehicle.

    Securitization is for the benefit of the security holders and those holders are ambiguous. No ambiguous language allowed in a non-judicial State, Bad Boys! You see what I know and what we know on the Street is “divesture” and valuation’s linking “corresponding” values and not compensating balances.

    Counsel appointed as a Debt Collector….your caught in a lie here Bubba! GJ indictments are …..not good!

    Its tendering one constructive asset for another asset and that constitutes the loss of the security as a deed of trust.

    The collateral is exchanged for a security instrument or CDO stock certificate. The certificate is then split and severed from one another to establish good will value 10 times the base mortgages value.So we control the marets valaution of stocks in a private placecment or end up with a $10 billion mistake…BAC.

    Does the TRS own the QSPE asset that is isolated in a bankrupt remote entity?
    No chance- dual consideration.

    Does the SPE own the QSPE asset that is isolated in a bankrupt remote entity?
    No Chance- violation of FAS 140 and controlling interest in assets held by the registrant

    Does the investors claims denied by the FDIC for depositor funds their owed offer anyone rights to assets isolated in a bankrupt remote entity?

    ANSWER – Please! Ya…Right; Take me now Lord…
    please …take me now!

    expert.witness@live.com

  14. I have no idea John, does anyone know? I just know that we have the worse judges here, I had already seen 5 other lawyers before I hired this one and every single one told me, “good luck, no have no chance”.
    As for what he meant by saying wait, he is wating for them to show up with the notice at my door that they are foreclosing before going to court and stopping/slowing it down. I know that he has 40 other cases that he is been fighting by asking the banks to show they have the right to foreclose. BOA has not tried to foreclose on me yet so I guess I want to know if there is anything else I need to be doing besdies waiting for the door bell.

  15. Charlie, I’m sorry is Va a Non judicial or judicial state?

  16. Look under the banner “Find Grads” on his web site. Hopefully you will find somebody. Just because you have a litigating attorney doesn’t mean you don’t need a BK attorney.You will probably have to file a chapter 13 so you can stop the foreclosure and group all your unsecured debt with your late payments into one low payment. Just discuss your options with the BK attorney for the first hour free. I don’t understand what your other attorney meant by “wait until BoA comes after you”?Maybe you can clarify?

  17. Thanks John. I see he is in NC, does that matter?
    Also, I have already paid an lawyer here who is suppose to help me in case they try to foreclose. I know no one can tell me what to do, but what I do with that?
    Thanks again for your feedback, much appreciate it.

  18. Charlie, with the NOD filed you may not have enough time to apply for Hamp relief. The banks have been moving forward with the sale regardless of application. The good news is you are in a very friendly BK state and have a very good BK attorney there. Try and meet with Max Gardner, he will plead to the court all your concerns. Just google his name. Let me know what you think

  19. Correction, I am sorry John, Yes I have got the notice of Defualt already.

  20. “All of this was now being covered by the mainstream media and one thing was becoming quite clear… we now knew who at least some of the scammers were and their names were JPMorgan Chase, Bank of America, and Wells Fargo, et al. All of a sudden the idea of homeowners needing a lawyer when at risk of losing a home didn’t sound so bad, and no one expected those lawyers to work for free. Maybe charging for services wasn’t what made someone a “scammer” after all.

    The bank’s propaganda campaign about not needing a lawyer when trying to save your home from foreclosure had been a lie and was unraveling faster every day. Billy Shakespeare had said it best: Oh what a tangled web we weave, when first we practice to deceive. And when that web starts coming apart, it’s something to behold. GMAC froze foreclosures first, then Bank of America, then Chase… but then they checked their own work and in a matter of weeks gave themselves passing grades and went right back to work attempting to eradicate any remaining wealth still being held by the country’s working class.”

    http://mandelman.ml-implode.com/2010/12/how-to-tell-legitimate-loan-modification-firm-from-an-illegal-operation-or-scam-the-ftc%e2%80%99s-new-bright-line-mars-rule/

  21. In VA, No NOD as of yet filed, $440,000 on first and $60,000 on second, No BK filed, have a job so depends on the payments but I could do it if its based on what the house worse right now and a good rate with HAMP. Keep in mind that I have been rejected 4 times for mod saying the investors rejected it.
    Thanks John for any feedback

  22. Charlie….we need more
    1) what state are you in?
    2) NOD filed?
    3) loan balance?
    4) are you BK ready?
    5) do you have income to support HAMP payment?

  23. Let me guess, it’s McCurdy & Candler sending you that email, right?

    They always act as if you’ve (somehow) offended them personally, and they typically insist that you withdraw.

    Don’t let them bully you!

    Sonya… you do know there’s a class action against Bank of America and BAC Lending, right? IF not, see this: http://www.wsbtv.com/news/25777019/detail.html

    you can go to the FB page for the attorneys prosecuting this, it is: http://www.facebook.com/pages/Georgia-Mortgage-Class-Action/100949759977147?v=wall

  24. Neil

    Excellent – as to your comment – “HERE IS A SIMPLE TEST” – what your write in second paragraph.

    And, Roger — Angry — check your prior mortgage if you had one — check canceled checks — check return of mortgage note stamped “Paid” – check the discharge for compliance..

    May try to tell you the records no longer exist — but, you have a right to this.

  25. More on LPS (Lender processing services) 12/6/2010. http://www.huffingtonpost.com/lender-processing-services-legal woes_n_792663 They should be in just about every law suit along with the forclousing law firm.

  26. Neil,
    I am going through this right now. I got a lawyer from your list, nice person but I guess his plan is to wait and defend me when BOA comes after me.
    In the mean time, after angry emails and calls to the office of president of BOA and Wells F, I was given a negotiator and he emailed me saying we are ready to push you through HAMP and here what we need. My lawyer won’t even talk about this with me; he just says tell them you have counsel, and if you want to modify then go for it, I don’t want to be blamed for anything later. I have someone from HAMP who has been assigned to follow up with me and BOA to make sure they are doing what they need with me, and I have my lawyer who is waiting for them to come after me, I am so confused…
    I love to hear some of yours and others thoughts on this please,
    Thanks

  27. Roger Rinaldi
    haha … i doubt they got it, not without the foreclosure notice too ,truly unbelievable .

  28. Hey ANGRY, I’ve got one better. Received someone else’ letter stuck to mine stating the bank is paid off, and they will soon send a satisfaction of mortgage. The payoff was made, hmmm, 5 months previous to the date. Wonder if they ever got it?

  29. Yes. I agree with Pete. It sounds like they are talking out of both sides of their mouth. First, they do represent Saxon, then they don’t. Not going to work. A similar problem came up with a case in Kansas about MERS. Yes, they could foreclosure and then, no, they can’t be sued, because they own nothing. Totally contradictory! http://www.challengingforeclosure.com Sirak@challengingforeclosure.com

  30. Steevo, Ask for their points & authorities and follow up with a email about what was covered during meet/confer. A lot of local rules require meet/confer. And remember a MTD is not a responsive pleading

  31. Steevo, there is no REAL remedies for them. They always try and threaten. Write to them and request a meet and confer to discuss dismissal.

  32. Sonya , take it to the State Attorney , it cost you nothing , and the are happy to get some Info.

  33. By mistake..Litton loan sent me a letter intended for a different person with a mortgage Litton was servicing. This person wanted to pay off his mortgage, for over 6 months [this is how long it had been going on when i received the letter by mistake] Litton would not & did not provide a pay-off. I do not know how this ended as i was circling the drain at the time this occurred.
    All of these financial clowns ARE BAD ACTORS – ACTING BADLY

  34. Pete, this confused me:

    If this case is not dismissed and responsive pleadings are required to be filed, Saxon reserves all remedies available to it under O.C.G.A. 9-15-14 against both plaintiffs and their counsel, jointly and severally. Lastly, we are not the registered agent for Saxon, nor are we permitted to accept or acknowledge service of process for Saxon.

    In the first part of that statement they are speaking for “Saxon”, as if “Saxon” is their client.

    Then in the same paragraph say they cannot accept service for “Saxon”.

    Whom is “Saxon” and if that is not their client whom do they actually represent?

    Heh. Weird, to be sure.

  35. Georgia Residents, If you are experiencing problems with Bank of America or BAC , e-mail me and lets compare notes. sonya36767@yahoo.com. Safety is in numbers. Foreclosures are being in numbers, surely there is something we can do about it. I know I can’t be the only one out there that is getting foreclosed on even though I am not behind on my payments. I didn’t even do their home modification. FRAUD!!!

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