Banks Slammed for Misrepresenting Themselves as Owners of the Loan

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2008 Legal Memo at BKR Conference

Cautions Banks and Lawyers Against Lying About Ownership

A legal compendium of cases published by the American Bankruptcy Institute establishes a pattern of conduct by Ameriquest, Wells Fargo and Chase dating back before 2008 in which these and other banks have intentionally misrepresented themselves to the court as owners of the note, entitled to foreclose and seeking to lift the automatic stay in bankruptcy court under “color of title” arguments. The link to the entire article is below.

What I see is not just wrongful conduct in court but a continuous pattern of lying, fabricating, forging and cheating that has left millions of homeowners without possession of their rightful homes. The ONLY REMEDY in my opinion is to restore these homes to the bankruptcy estate and that the debtor’s be allowed to assert claims attacking the supposed mortgage liens that were based upon false identification of the lender, false and predatory figures used in borrowing and servicing and a large shroud thrown over the entire fictitious securitization process as a place to hide an illegal scheme to issue multiple securities in which the borrower was the issuer of the promissory note under false pretenses and the REMIC was carefully constructed to issue bogus mortgage bonds.

In both cases, the issuer and the investor were dealing with participants in the securitization chain who had no intention of allowing them to keep or recover their investment. In both cases, the instrument was a security that did NOT fall under the exemptions previously used to protect the banks. The borrower as issuer was induced to enter into a securities transaction in which he purchased a loan product under the false assumption created and promoted by the Banks that the real estate market never went down and would always go up, thus allaying the borrowers’ fear that the loan was not affordable. In fact that loan was not affordable and would violate the affordability guidelines in TILA and RESPA if it was classified as a residential mortgage loan. The REMIC that issued the bonds did so without any assets, and even though the disclosure was in the prospectus buried in parts where one would not be looking for that risk, that fact alone removes the REMIC issuance as a REMIC under the Internal Revenue Code, and removes the issuance of the mortgage bond from the cover of exemption under the 1998 Act.

We have all seen Wells Fargo, BOA, Chase, US Bank, Ameriquest and others banged repeatedly fro misrepresenting themselves in court as the owner of the loan when in fact they were not the owner of the loan, never loaned the money to begin with and never purchased the loan obligation from anyone because no money exchanged hands. Even if they tried, the only party who could sell or release claims to the receivable from the “borrower” (issuer) would have been the partnership or individuals or as a group pooled their money into leaky, fictitious entities created for the express purpose of deceiving the pension funds and other investors.

The bottom line is that when it suits them (when they want the property, in addition to the unearned insurance payments, proceeds of credit default swaps and proceeds from other credit enhancements and federal bailouts) these banks assert falsely that they are the creditor, claiming the losses that trigger payments to them rather than the investor. When it does not suit them, like when they abandon the property, or are subject to imposition of fees, sanctions or fines or attorney fees, then they finally fess up and state that they are not the owner of the loan in order to avoid paying appropriate costs, fines, fees, penalties and fees.

Here are some of the notable quotes from the piece written by Catherine V Eastwood, Esq., of Partridge, Snow and Hahn, LLP. At some point the lawyers must be subjected to the same sanctions knowing in the public domain that these practices exist as a pattern of conduct. see Consumer_Sept_2008_NE08_Messing_Mortgages_Cases

QUOTES FROM ARTICLE:

Make Sure Your Pleading Contains Accurate Information Regarding The Identity Of The Real Party In Interest
[AMERIQUEST FINED $250,000, LAW FIRM FINED $25,000, WELLS FARGO FINED $250,000 FOR A TOTAL OF $525,000] On April 25, 2008, Judge Rosenthal issued an memorandum of decision regarding an order to show cause why sanctions should not be imposed in the matter of Nosek v. Ameriquest Mortgage Company, 2008 Bankr. LEXIS 1251 (Bankr. D. Mass. 2008). Ameriquest had maintained throughout a prior adversary proceeding and bankruptcy case that it was the “holder” of the note and mortgage. When the debtor filed a second adversary proceeding requesting trustee process from two Chapter 13 Trustees to collect payment on the judgment issued in the prior case, Ameriquest argued that it was merely the servicer of the loans and that it was not the owner of the funds sought to be collected. The court noted that Ameriquest and its attorneys had made misrepresentations to the court throughout the prior proceedings regarding its status as noteholder. Wells Fargo, NA as Trustee for Amresco Residential Securities Corp. Mortgage Loan Trust, Series 1998-2 was the real holder of the note. The Court issued a Notice to Show Cause why sanctions should not be imposed

Make Sure Your Pleading Contains Accurate Financial Information or Fed. R. Bankr. P. 9011 May Be Imposed: Judge Bohm asked counsel why a motion from relief from stay was being withdrawn. The lawyer’s answer resulted in the judge issuing two show cause orders in In re Parsley, 2008 Bankr. LEXIS 593 (Bankr. S.D. Texas 2008). The real answer should have been that the motion for relief was filed in error on account of an erroneous payment history. Unfortunately, counsel misrepresented to the court that it was a “good motion” and that set off an explosion, leading to evidence of other misrepresentations…. Testimony also revealed that the payment histories were prepared by paralegals and were not reviewed by any attorneys. Countrywide did not review the loan histories either. No one was catching the errors under this system. Judge Bohm wrote “what kind of culture condones its lawyers lying to the court and then retreating to the office hoping that the Court will forget about the whole matter.”

[$75,000 Sanction against Law Firm] In an earlier matter, also in the Southern District of Texas, the Court sanctioned a law firm in the amount of $75,000 for filing an objection to plan and subsequent withdrawal of the objection that was deemed to be “gibberish.”    In re Allen, 2007 Bankr. LEXIS 2063 (Bankr. S.D. Texas 2007). It was clear to the Court that the pleadings were not being reviewed by an attorney after being generated by a computer as the objection listed reasons that were completely unrelated or blatantly opposite of the contents of the Chapter 13 plan filed by the debtor.

[Chase required to pay legal fees of debtor] On April 10, 2008, Judge Morris, a bankruptcy court judge for the Southern District of New York, issued a decision in the case of In re Schuessler, 2008 Bankr. LEXIS 1000 (Bankr. S.D. NY. 2008) regarding an order to show cause why Chase Home Finance, LLC should not be sanctioned for submitting pleadings that were misleading and that had no factual support.

Standing Challenges: Make Sure The Company Bringing The Action Has The Legal Right To Do So
[RELIEF FROM STAY DENIED RETROACTIVELY ON DEBTOR’S MOTION] In re Schwartz, 366 BR 265 (Bankr. D. Mass. 2007) that parties who do not hold the note or mortgage and who do not service the mortgage do not have standing to pursue motions for relief or other actions arising out of the mortgage obligation. In Schwartz the creditor was seeking relief to pursue an eviction action following a foreclosure sale. The assignment of mortgage into the foreclosing mortgagee was executed four days after the foreclosure sale took place. The Court stated that while the term “mortgagee”, as used in M.G.L. c. 244 §1, “has been defined to include assignees of a mortgage, there is nothing to suggest that one who expects to receive the mortgage by assignment may undertake any foreclosure activity.” Id. at 269. The motion for relief was denied.
While not a bankruptcy court case, a United States District Court case worthy of inclusion in this section is In re Foreclosure Cases, 2007 WL 3232430 (N.D. Ohio 2007). The District Court issued an order covering numerous foreclosure cases that were pending in the state. The creditor was ordered by the Court to produce evidence that the named plaintiff was the holder and owner of the note and mortgage as of the date the foreclosure complaint was filed. The court dismissed the foreclosure complaints when the lenders were unable to produce the assignments.
How Many Times Can A Lender Continue a Foreclosure Sale?
In re Soderman, 2008 Bankr. LEXIS 384 (Bankr. D. Mass. 2008). In Soderman the court recited the “one-time” postponement blessing in order to seek relief from stay but that repeated continuances may be a violation of the automatic stay.    The repeated continuances will be deemed a violation of the stay if the postponements are made in order to harass the debtor, gain an advantage for the creditor or renew the financial strain that led the debtor to file for bankruptcy protection. Id.    One month after the decision in Soderman was released, Judge Hillman also ruled that repeated continuances of a foreclosure sale was a violation of the automatic stay. In re Lynn-Weaver, 2008 Bankr. LEXIS 1101 (Bankr. D. Mass 2008).
Challenging the Assessment of Mortgage Fees to a Loan and the United States Trustee’s Office’s Investigation of Countrywide Home Loans, Inc.
In an unprecedented move, Judge Agresti of the Pennsylvania Bankruptcy Court, in April 2008, approved the Justice Department’s further investigation of Countrywide due to widespread allegations that the lender is filing false or inaccurate claims, misapplying funds, assessing unreasonable fees to borrowers’ accounts or ignoring the discharge injunction and other court orders. Countrywide Homes Loans, Inc. f/k/a Countrywide Funding Corp., 2008 Bankr. LEXIS 1023 (Bankr. W.D. PA. 2008).
This matter was precipitated by a Standing Chapter 13 Trustee in Pennsylvania originally filing for sanctions against Countrywide Home Loans, Inc. due to her experience with the lender
The Pennsylvania matters have led the United States Trustee’s Office to file similar suits in Georgia1 and Ohio2 seeking to investigate the servicing practices of Countrywide. Various subpoenas have also been served by the United States Trustee’s office upon Countrywide in Florida regarding the assessment of fees on borrower’s accounts.

1 The United States Trustee’s Office filed a complaint on February 28, 2008 styled as Walton v. Countrywide Home Loans, Inc.,08-06092-mhm in the Northern District of Georgia. The related bankruptcy case is In re Atchley, 05- 79232-mhm. In Atchley, the homeowners eventually sold their home to avoid foreclosure but believe the payoff amount cited by Countrywide contained excessive fees and that Countrywide continued to accept trustee payments after the loan paid off.
2    The United States Trustee’s Office filed a complaint on February 28, 2008 styled as Fokkena v. Countrywide Homes Loans, Inc., 08-05031-mss in the Northern District of Ohio. The related bankruptcy case is In re O’Neal, 07- 51027. In O’Neal, Countrywide filed a proof of claim and objection to plan when it had already accepted a short sale on the property prior to the bankruptcy filing.

ALL LENDERS ARE FAIR GAME
[Forensic Audits Suggested — $10,000 damages, $12,350 Legal Fees, Wells Fargo sanctioned $5000] in the matter of In re Dorothy Stewart Chase, Docket 07-11113, Chapter 13 (Bankr. E.D. LA 2008), Judge Magner issued a 49 page decision on April 10, 2008 which ordered Wells Fargo to audit every proof of claim it filed in the district since April 13, 2007 and to provide a complete loan history on every account. If the audits reveal additional concerns, the judge reserved the right to appoint experts to do forensic accountings at the expense of Wells Fargo. She also ruled that Wells Fargo was negligent in the loan servicing of Ms. Chase’s loan and assessed damages of $10,000, legal fees of $12,350 and sanctioned Wells Fargo $5,000 for filing a consent order that did not reflect the agreement of the parties and for filing erroneous proofs of claim.
[Wells sanctioned $67,202.45] The decision in Chase was on the heels of Judge Magner’s earlier decision in In re Jones, 2007 Bankr. LEXIS 2984 (Bankr. E.D. LA. 2007). In Jones, Judge Magner sanctioned Wells Fargo $67,202.45 for violating the order of confirmation and the automatic stay by improperly assessing the debtor’s loan with fees in the amount of $16,852.01 and diverting payments made by the Chapter 13 trustee and the Debtor to satisfy fees that had not been authorized by the Court. The judge stated that the Jones case would provide guidance in the post-petition administration of home mortgage loans to a degree that, until this decision issued, had been lacking in the industry.

26 Responses

  1. Ray Shelton, on December 19, 2013 at 12:20 am said:

    US Bank and SN Servicing has submitted Forged documents in our federal bankruptcy case too and we will never stop perusing them in court for damages. We are also asking our Federal judge to prosecute their current attorney out of Jacksonville Florida who continued to defend this case knowing that forged document are before a federal court. All the offending parties at SN Servicing and their attorneys are committing a serious crime against our country. We have filed a formal complaint with the FBI and the US attorney general and many great Judges all across this nation are finally stopping them from this kind of fraud on American families. US Bank and SN servicing and their attorneys are also violating a serious consent order that was to protect the people from these crimes but they could care less. Please feel free to have your clients join a class action suit so that we can end their behavior with a multi billion dollar punitive damage suit. Join us, call Ray Shelton in Florida at 352 274 8467

  2. My loan originated in 2001 but is in CWABS 2006 SD2, a private BNY trust. In 2006 I had two years, 24 payments to go on a five year Chapter 13 filed to prevent a previous Countrywide foreclosure. The way CWABS made me a “qualifying mortgage” to place me in the trust was by check kiting. They put 24 “investor payments” of my monthly mortgage payment into my account over $62,000 then the same day making 24 “investor reversals” for the same amount. This took place three days after the date of CWABS 2006 SD2 incorporation. This looks like accounting, securities and tax fraud to me. Any thoughts on this?

    I’m right around the corner from a foreclosure sale with fabricated backdated assignments from the infamous T. Sevillano and various other causes of action, lots of research and documentation. I still have equity and am looking for a contingency or partial contingency attorney. In northern California. Carlpforbes@gmail.com.

  3. Shelley Erickson: Please contact me re JPMC and the PAA:
    Thank you. numrich@msn.com

  4. Sorry about all the typos always typing in a hurry between business.

  5. All these debt collectors assumed was debt collector rights and servicing rights the did not assume the loans. Think about it how could the FDIC collect shredded notes? Read the assumption agreement and the extenstion assumption agreement of Chase/WAMU/FDIC, only the servicing rights were assumed and the PSA were not transfered in time. Deutsche bank sued FDIC/WAMU/Chase for not transfering them on time. None of the originators have assigned the deeds of trust to anyone. All of a sudden the assignments miraculously pop out of mers like a miracle. As Pratt said to the judges while bragging at the Bains V MERS case, at the Washington U.S. Supreme court, MERS had miraculously caused over a million unmovable loans to move after the S&L corruption, that MERS was invented just for that purpose. jThe FRAUD worked so well it is still in place. Now why were a million loans unmovable in the 1990’s from the 1980’s Savings and Loan Crisis? If they were legal why were they not movable. He brags infront of the U.S. Supreme Court judges that MERS was invented to move over a million unmovable loans. I slapped my forehead! Did any one else get that? MERS WAS INVENTED TO SKIRT AROUNG THE BROKEN CHAIN OF TITLES AND TO SKIRT AROUND THE RULE OF LAW. And still is used for this fraud. The mortgages back then were unmovable and void. They stole the houses back then and continue to use MERS to steal money and mortgages today.

  6. Frank

    Also, C-Bass a real give away — “scratch and dent” buyers.

    OK — scratched from where??

  7. carie,

    Book coming as soon as I can.

    Frank,

    All I can say now is go back — go back — go back. The fraud did not begin with your last refinance. And, as to jumbo new loan purchases, the fraud began — before you started.

    All of this subprime. Subprime was not qualifying mortgages. Reason for it. If not qualifying mortgages — how the heck did they become qualifying mortgage backed securities??? They did not.

    Easiest to try to trace for refinances. What really happened before the refinance??? Go back.

    Know what they did last —– you did last…….

    But, see my post as to Gramm-Leahy elsewhere — records not available — must dig and dig hard.

  8. ANONYMOUS needs to have an e-book or something that we can download or purchase with everything he has posted already regarding the truth of the subprime…so he doesn’t have to keep answering the same questions over and over…how ’bout it, ANON? I will give it to everyone I know and everyone I don’t know—we have to get the truth into everyone’s hands—and you seem to know more than anyone due to your intense research for the last 7 years or so…

  9. Anonymous, I’m more than a little interested in what you say but I have this question about something that seems fundamental to your position, viz., “these subprime loans were already classified default debt…” How do you know this? How could I as a disinterested searcher verify this per some law, ordinance, regulation, etc? In my research into C-BASS 2006 CB5, the trust into which one of my mortgages was apparently placed, the PSA states that mortgages being put into the trust cannot be in default at that time. Moreover, the trenches were composed of various quality of debt, some worse than others, but sub-prime loans were not disallowed. Hence my question…….. I appreciate your reply and thanks.

  10. Bart,

    How did so few become so obsenely rich? It just dawnwed on me that all that money went in the pocket of those few, in the form of bonuses and obsene wages. While everything was a game of tranposing empty number, the actual money being circulated was simply going into a few pockets.

    When we read that, under Obama, 93% of the wealth went to the 1%, and we look at how they handled the foreclosure by way of Hamp, Harp and others, giving banks the absolute right to pocket most of that tax papers’ money in the form of servicing the modification, bonuses and others, (banks were given BONUSES for voluntarily participating, for Pete’s sake!!) we know where all the money went: exactly where it had gone since 2000 and probably even before that…

  11. Anonymous, what you are saying is interesting but what if one finds that there true praties of interest are private people behind a servicer? Where did all the payments go, the originator or someone else or a combination of . I agree this makes it unsecured but is it even a debt with the use of a servicer and no evidence of an origination with any of the found perpetrators.

  12. @ Joann, ever notice that the FDIC will post many of the documents as part of the Public / Private Program. Look for the schedule of loans in any of those documents.

    Now if all you guys want the true disclosure – go look at the FHFA lawsuits on behalf of the former GSE’s against all of the originators who sold them loans. They are suing on the participation agreements. Very soon, folks will realize that GSE certificates were just another means to keep the GSE’s open and allow the culprits a means to socialize all the refinance loan losses. I will be releasing something big soon! It will shock the world to the extent that the insolvency of Italy, Spain and France will seem irrelevant.

  13. Seems this government will dismiss a few secret service men for a prostitution scandal but will not jail the bankster for molesting the tens of millions of home owners who were financially harmed. Bet the hooker got her $ 800 bucks and the home owner is sleeping in the streets.

  14. So, your Honor, if Deutsche Bank sent the funding check, Wells listed themselves as the “mortgagee” in the records, and HSBC filed the foreclosure 14 months before the assignment of mortgage, and the counterparty BearStearns CDS obligations are in TARP, who do I owe and how much of the obligation is left?
    I will be sure to give the BK judge a headache. I better bring some aspirin.

    “We should be dancin’…….YEAH!!!!”

  15. THANK YOU ANONYMOUS…come ON Neil!!! Geez—when will you speak the whole truth??? Be a little more courageous…I know you can do it…

  16. This is an article from 2008. Yes — all true, but liability signed away by the 49 state AG agreement.
    And, the clincher is — these were NOT “mortgage” notes. Yes, get to BK, or you will forever be held responsible if wrong party named in foreclosure — you still “legally” owe.

    Why not mortgage notes? Because these subprime loans were already classified default debt — non-compliant for mortgage backed securities. Security investors put up nothing — NOTHING. After origination, which was NOT mortgage origination, security investors purchase a right to a stream of cash flows derived from DEBT BUYING collection rights to default debt. All this occurred when subprime borrowers signed on the dotted line, (in error) thinking they were actually getting a mortgage refinance, or jumbo purchase. .

    Who were the debt buyer investors (not security investors) in cash flows)??? The banks themselves. What a mess their financial statements are — stress tests?? Enron magnified to the hilt.

    Get it??? Subprime was default/non-compliant debt. Refinances were modifications of default debt. Jumbo subprime loans were orchestrated default debt from the onset. NON-COMPLIANT — NON –QUALIFYING. (for, of course, mortgage backed securities).

    So — what investor put up any money???? NONE. Non-compliant/default (false) subprime loan collections rights were purchased from GSEs (insurance paid out — so no cost to investors).
    Then the INVESTORS — suck in security investors — to pass through cash flows. INVESTORS making money on securitization (debt collection purchase) that cost them nothing. COST THEM NOTHING. Security investors were suckers who purchased cash flow stream to non-compliant/default debt — that is how the “banks” made their money. NO cost to subprime collection rights, and then sell the cash flows to the collection rights.

    NO SECURITY INVESTORS EVER FUNDED YOUR SUBPRIME LOAN.
    NONE. They are not your creditor by law, not your lender by law, not your originator by law, not your assignee by law. They are NOTHING to you. Any issues they have is with the default/non-complaint debt buyer “BANK” — who told them that the cash flow pass-through was triple A rated.

    Okay — what does this mean for the borrower??? Means your packaged subprime “refinance” and/or jumbo purchase were NOT secured debt. NOT-secured debt. BK courts — get ready. .

    Neil — you have to do better. Start listening to what others are telling you.

  17. So when will the government force the banksters and judges to resign after they molested the 10s of millions of US homeowners ?

    http://content.usatoday.com/communities/theoval/post/2012/04/obama-aide-too-early-to-draw-secret-sevice-conclusions/1

  18. “as purchaser of the loans and other assets”
    when it suits them

    and

    “JPMC did not become WMB’s successor in interest”
    when it suits them

    and

    “only specified liabilities: those that had been reduced to a dollar amount on WMB’s “general ledger ”

    So is that a purchase for value as defined by the UCC and or fasb and or qualifed anything and then what is the balance owed Chase now who is a stranger?……but all that is without taking into consideration that all of the above including the P &A is irrelevant because wamu was paid in full on the closing date of the trusts years before it ever heard of bankruptcy or jpm and now jpm seems to think they can sell/assign for value (what value?) and sell/transfer loans to trusts now which is an impossible transaction.

  19. i know you’re still recovering Neil, but you had to blow almost 4 years’ worth of dust off this one to post it.

  20. Enraged – I also meant to clarify – that statement is JPM’s own statement.

  21. “While JPMC purchased all of the assets of WMB, it assumed only specified liabilities.” They all did it. They assume exactly what allowed them to make money, and more money, while depriving everyone: homeowners, counties, cities, states , the feds, absolutely everyone.

    With our government(s) blessings. Is it any wonder we buy guns?

  22. yup…the courts continue to bulldoze right over the homeowner…why? does anyone EVER have a conversation with these judges? neil?

  23. Neil,

    I don’t think you seriously consider banks giving BACK houses they foreclosed on 4 or 5 years ago, or do you? To me, it compounds the insane of resolving one problem by creating another one. Once the house was taken away, if it was sold, this is it: there is no giving it back. Unless, of course, you intend to resolve one problem by throwing out in the street the families that have dared purchase houses since 2007 or 2008. But how fair is that?

    No, the banks will have to compensate wrongfully foreclosed homeowners with an amount equal to whatever the house was at the time or something similar, allowing them to move into a comparable but different house. Maybe even give them some additional damages for the fraud but throwing more people in the street? It makes no sense! And I doubt that, assuming banks do indeed have to compensate homeowners, any judge would purposely kick the current owner out. Plus… what about all the houses that were demolished? What do you give back to the homeowners? An empty lot?

    I’m all in favor of compensating homeowners, don’t get me wrong. But the way of going about it has to make legal sense. otherwise, the can of worms you open is even worse than the one already existing.

  24. When will the facts begin to outweigh the known faulty assumptions from the bench? And what can be done to penalize those that abuse their positions?

  25. “The bottom line is that when it suits them (when they want the property, in addition to the unearned insurance payments, proceeds of credit default swaps and proceeds from other credit enhancements and federal bailouts) these banks assert falsely that they are the creditor, claiming the losses that trigger payments to them rather than the investor. When it does not suit them, like when they abandon the property, or are subject to imposition of fees, sanctions or fines or attorney fees, then they finally fess up and state that they are not the owner of the loan in order to avoid paying appropriate costs, fines, fees, penalties and fees.”

    From foreclosure notices:

    JPMorgan Chase Bank, National Association, as purchaser of the loans and other assets of Washington Mutual Bank, formerly known as Washington Mutual Bank, FA (the “Savings Bank”) from the Federal Deposit Insurance Corporation, acting as receiver for the Savings Bank and pursuant to its authority under the Federal Deposit Insurance Act, 12 U.S.C. § 1821(d).”

    From Chase lawsuit with Deutsche Bank:

    Under the plain terms of that agreement, JPMC did not become WMB’s successor in interest. Since its closure, the FDIC as receiver has controlled WMB. While JPMC purchased all of the assets of WMB, it assumed only specified liabilities: those that had been reduced to a dollar amount on WMB’s “general ledger and subsidiary ledgers and supporting schedules which support the general ledger balances.”

    And the futher development:

    The Court has ordered discovery, to be completed by May 11, 2012, “as to the meaning of the Purchase and Assumption Agreement”, which is the agreement Chase uses to foreclose and assign mortgages nationwide. This production is under a “Confidentiality Order”.

    Just wondering – how is this not relevant to homeowners? A court needs discovery as to the meaning of who owns the mortgages? It’s confidential? And no discovery is needed when a homeowner asks the same question? Court accepts anything the banker says as final rule and automatic non-judicial foreclosure just fine?

  26. […] View the original here: Banks Slammed for Misrepresenting Themselves as Owners of the Loan […]

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