Foreclosure Bid Rigging at Its Worst: Tiffany and Bosco Reportedly Worst Offender

Challenging the Foreclosure Auction Process

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The selection of an attorney is an important decision  and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

see also http://livinglies.me/2013/04/04/banks-could-owe-trillions-on-fake-rigged-credit-bids/

Editor’s Analysis: The piece below is a report from our best investigator doing some work in Arizona. If you want to hire him, just contact us and we will put you in touch with him. The emphasis is added by me.

The report speaks for itself, but there clearly is something wrong with the operation of a system that allows for bidding without proof of loss, without paying the $10,000 required as earnest money and without any transparency.

The auctioneer, selected by the substituted trustee who was substituted usually by a fabricated document claiming false authority and forged by someone who may never have existed, is clearly the paid underling of the banks that ordered the foreclosure with perks offered at the end of the auction process for those who want the house in question.

Despite numerous law-breaking allegations and even proof of violations of the notary laws and recording laws, Tiffany and Bosco continue to practice without any impediment. You can thank the DOJ and AG Holder along with the Obama administration for establishing a climate where crime and moral hazard run rampant.

More importantly, while the bids and value of the notes are manipulated to be in conformance with what is reported to Wall Street investors (as pointed out by Charles Koppa), they still have no jumped the hurdle of having a non-creditor bid at the auction and are essentially hoping that the passage time will overcome any claim that they should have paid cash. It is for this and other reasons that we believe that both the substitute trustee and auctioneer, individually and as representative of the company that sent them to the auction have exposure to liability and if the right fact pattern emerges from all this, they should be sued and prosecuted.

Fundamentally the strings are being pulled by Wall Street banks who are so far successfully avoiding trillions of dollars in liabilities for paying cash on bids made on their behalf but for which there was no consideration in the form of the debt or the cash required by statute.

In my opinion those banks are extremely vulnerable to this challenge and the piercing of the corporate veils and ladders and layering will be relatively easy. There is gold in these hills for both evicted homeowners and lawyers who represent them. The pot can be measured in the trillions of dollars.

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Hi Neil,
I have digitally recorded, at the request of a client, FIVE Tiffany & Bosco trustee sales from beginning to end.  My declarations regarding these trustee sales are now part of the record in a BK Adversary Proceeding.

I can state categorically the creditor is never at the auction.

THIS is how it goes at T&B [Tiffany and Bosco].  T&B has an auction list on their web site.  You can print it out on their web site and take it to the auction.

The auctioneer enters the room, sits down, and proceeds to read at LIGHT SPEED the list of properties scheduled for that auction.  All he calls is the T&B internal auction number and the street address.  If a bidder is interested, he yells PULL.  The auctioneer proceeds with the list with a variable number of trustee sales having had a PULL yelled.  The auctioneer then leaves the room and the bidders talk amongst themselves.

The auctioneer then returns with a stack of files, that match the sales that had a yell of PULL.  The other homes on the list are never brought up again.  I have checked the recorders web site and every one of the homes which never got passed the PULL stage had a trustee deed which T&B stated that an auction occurred and the property was sold for cash or, protanto, via a credit bid (which never happened, I have it on tape).

Now, regarding the sales prefaced with PULL.  The auctioneer then starts reading a long trustee disclaimer at rapid speech.  He then calls a property, starts that T&B as trustee for the lender, opens the bid with XXXXXX amount, whatever is listed on the form.  Anyone who wants to bid can not do so but has to have first handed the auctioneer a $ 10,000.00 check.  The auction continues until the last bid is received.  I have checked these properties and the Trustee Deed does match the final amount bid.

HOWEVER, I do not recall, ever, an auction where the sale amount was MORE than the declared amount of the original note (that number is in the sales list).  And I believe I know why.  The Arizona excess funds statute says there are excess funds, only, when the sale amount is HIGHER than the declared value of the original note on the Notice of Trustee Sale.  Therefore, whatever made up amount is on the Trustee Notice controls whether or not there are excess funds.

So, to avoid having excess funds, all a lender has to be is gerrymander the note about, enter whatever credit bid they want, and certainly low enough to encourage a sale, and voila, not a dime back to homeowners, even if they have received payment on the note from credit default swaps, etc.

Finally, the creditor is never there at the sale.  At least in the case of T&B, the creditor has their bid PLACED by the AUCTIONEER when a file is PULLED, or, the credit bid is never even mentioned for properties that are not PULLED!

As an aside, during some auctions, when nearly everyone has left, a couple of bidders would linger behind and when alone with only the auctioneer and ME looking like I am packing to go, the bidders ask for a LATE PULL.  Of course my recorder is still running.  The auctioneer goes and gets the late PULL property files.  He calls an auction and in these case, there is only one bidder who offers ONE DOLLAR above the credit amount bid by T&B on behalf of the lender.  You can draw a conclusion from these collusive late events that is probably entirely accurate.  AND, I have them on tape.

IF you would like a copy of the videos to see for yourself, just ask.

 

Still Pretending the Servicers Are Legitimate

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Editor’s Comment:

I keep waiting for someone to notice. We all know that the foreclosures were defective. We all know that in many cases independent auditors found that strangers to the transaction submitted credit bids that were accepted by the auctioneer, and that in the non-judicial states where substitutions of trustees are always used to replace an independent trustee with one owned or controlled by the “new creditor” the “credit bid” is accepted by the creditor’s agent even if the trustee has notice from the borrower that neither the substitution of trustee nor the foreclosure are valid, that the borrower denies the debt, denies the default and denies the right of the “new creditor” to do anything.

In the old days when we followed the law, the trustee would have only one option: file an interpleader lawsuit in court claiming two stakeholders and that the trustee is not a stakeholder and should be reimbursed for fees and costs. Today instead of an interpleader, it is a foreclosure because the “creditor” is holding all the cards.

So why is anyone surprised that modifications are rejected when in the past the debtor and borrower always worked things out because foreclosure was not as good as a work-out?

Why do the deeds found to be lacking in consideration with false credit bids still remain on the books? Why hasn’t the homeowner been notified that he still owns the property and has the right to possession?

And why are we so sure that the original mortgage has any more validity than the false documents to support fraudulent foreclosures? Is it because the borrower’s signature is on it? OK. If we are going to look at the borrower’s signature then why do we not look at the rest of the document and the facts alleged to have occurred in those documents. The note says that the payee is the lender. We all know that isn’t true. The mortgage says the property is collateral for payment to the payee on the note. What first year law student would fail to spot that if the note recited a loan transaction that never occurred, then the mortgage securing the payments on the false transaction is no better than the note?

So if the original transaction was defective and the servicer derives its status or power from the origination documents, then who is the servicer and why is he standing in your living room demanding payment and declaring you in default?

If any reader of this blog somehow convinced another reader of the blog to sign a note and mortgage, would the note and mortgage be valid without any actual financial transaction. No. In fact, the attempt to collect on the note where I didn’t make the loan might be considered fraud or even grand theft. And rightfully so. I am told that in some states the Judges say it is the absence of anyone else making an effort to collect on the note that proves the standing of the party seeking to enforce it. Really?

This sounds like a business plan. A lends B money. B signs papers indicating the loan came from C and C gets the mortgage. B is delinquent by a month and having lost his job he abandons the property. D comes in and seeks to enforce the mortgage and note and nobody else is around. The title record is still clear of any foreclosure activity. D says he has an assignment and produces a false forged assignment. Nobody else shows up. THAT is because the parties in the securitization chain are using MERS instead of the public record title registry so they didn’t get any notice. D gets the foreclosure after substituting trustees in a non-judicial state or doing absolutely nothing in a judicial state. The property is auctioned and D submits a credit bid which is accepted by the auctioneer. The clerk or trustee issues D a deed upon foreclosure and D immediately transfers the property to XYZ corporation that he formed the day before. XYZ sells the property to E for $300,000. E pays D $60,000 down payment and gets a mortgage from ABC Lending Corp. for the other $240,000. ABC Lending Corp. sells the note and mortgage into the secondary market where it is sliced and diced into parcels that are allocated into one or more REMIC special purpose vehicles.

Now B comes back and finds out that he was never foreclosed on by his lender. C wakes up and says they never released the mortgage. D took the money and ran, never to be heard from again. The investors in the REMIC trusts are told they bought an invalid mortgage or one in which the mortgage has second priority instead of first priority. E, who bought the property with $60,000 of his own money is now at risk, and when he looks at his title policy and makes a claim he is directed to the schedules of exclusions and exceptions that specifically cover this event. So no title carrier is going to pay. In fact, the title company might concede that B still owns the property and that C has the first mortgage on it, but that leaves E with two mortgages instead of one. The two mortgages together total around $500,000, a price that E’s property will never reach in 20 years. Sound familiar?

Welcome to USA property law as it was summarily ignored, changed and enforced for the past 10 years? Why? Especially when it turns out that the investment broker that sold the mortgage bonds of the REMIC knew about the whole story all along. Why are we letting this happen?


Recording and Auctions: AZ Maricopa County Recorder Meets with Homeowners

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Phoenix, May 23, 2012: Last night we had the pleasure of meeting with Helen Purcell, Maricopa County Recorder, after having met with Tom Horne, AZ Attorney General and Ken Bennett, the AZ Secretary of State on issues relating to mortgages, robo-signing, notary fraud, etc.  Many thanks again to Darrell Blomberg whose persistence and gentle demeanor produced these people at a meeting downtown. See upcoming events for Darrell on the Events tab above.

The meeting was video recorded and plenty of people were taking notes. Purcell described the administrative process of challenging documents. By submitting a complaint apparently in any form, if you identify the offending document with particularity and state your grounds, again with particularity, the Recorder’s office is duty bound to review it and make a determination as to whether the document should be “corrected” by an instrument prepared by her office that is attached to the document.

If your complaint refers to deficiencies on the face of the document, the recorder’s office ought to take action. One of the problems here is that the office handles electronic recording via contracts who sign a Memorandum of Understanding with her office and become “trusted submitters.” Title companies, law offices, and banks are among the trusted sources. It appears to me that the mere submission of these documents in electronic form gives rise to the presumption that they are valid even if the notarization is plainly wrong and defective.

If the recording office refuses to review the document, a lawsuit in mandamus would apply to force the recorder to do their job. If they refer matters to the County Attorney’s office, the County Attorney should NOT be permitted to claim attorney client privilege to block the right of the person submitting the document or objection from know the basis of the denial. You have 10 years to challenge a document in terms of notary acknowledgement which means that you can go back to May 24, 2002, as of today.

One thing that readers should keep in mind is that invalidating the notarization does not, in itself, invalidate the documents. Arizona is a race-notice state though which means the first one to the courthouse wins the race. So if you successfully invalidate the notarization then that effectively removes the offending document as a recorded document to be considered in the chain of title. Any OTHER document recorded that was based upon the recording of the offending document would therefore NOT be appropriately received and recorded by the recording office.

So a Substitution of Trustee that was both robo-signed and improperly notarized could theoretically be corrected and then recorded. But between the time that the recorder’s correction is filed (indicating that the document did not meet the standards for recording) and the time of the new amended or corrected document, properly signed and notarized is recorded, there could be OTHER instruments recorded that would make things difficult for a would-be foreclosure by a pretender lender.

The interesting “ringer” here is that the person who signed the original document may no longer be able to sign it because they are unavailable, unemployed, or unwilling to again participate in robosigning. And the notary is going to be very careful about the attestation, making sure they are only attesting to the validity of the signature and not to the power of the person signing it.

It seems that there is an unwritten policy (we are trying to get the Manual through Darrell’s efforts) whereby filings from homeowners who can never file electronically, are reviewed for content. If they in any way interfere with the ability of the pretender lender to foreclose they are sent up to the the County Attorney’s office who invariably states that this is a non-consensual lien even if the word lien doesn’t appear on the document. I asked Ms. Purcell how many documents were rejected if they were filed by trusted submitters. I stated that I doubted if even one in the last month could be cited and that the same answer would apply going back years.

So the county recorder’s office is rejecting submissions by homeowners but not rejecting submissions from banks and certain large law firms and title companies (which she said reduced in number from hundreds to a handful).

What the pretenders are worried about of course, is that anything in the title chain that impairs the quality of title conveyed or to be covered by title insurance would be severely compromised by anything that appears in the title record BEFORE they took any action.

If a document upon which they were relying, through lying, is then discounted by the recording office to be NOT regarded as recorded then any correction after the document filed by the homeowner or anyone else might force them into court to get rid of the impediment. That would essentially convert the non-judicial foreclosure to a judicial foreclosure in which the pretenders would need to plead and prove facts that they neither know or have any evidence to support, most witnesses now being long since fired in downsizing.

The other major thing that Ms Purcell stated was that as to MERS, she was against it from the beginning, she thought there was no need for it, and that it would lead to breaks in the chain of title which in her opinion did happen. When asked she said she had no idea how these breaks could be corrected. She did state that she thought that many “mistakes” occurred in the MERS system, implying that such mistakes would not have occurred if the parties had used the normal public recording system for assignments etc.

And of course you know that this piece of video, while it supports the position taken on this blog for the last 5 years, avoids the subject of why the MERS system was created in the first place. We don’t need to speculate on that anymore.

We know that the MERS system was used as a cloak for multiple sales and assignments of the same loan. The party picked as a “designated hitter” was inserted by persons with access to the system through a virtually non-existence security system in which an individual appointed themselves as the authorized signor for MERS or some member of MERS. We know that these people had no authorized written  instructions from any person in MERS nor in the members organization to execute documents and that if they wanted to, they could just as easily designated any member or any person or any business entity to be the “holder” or “investor.”

The purpose of MERS was to put a grand glaze over the fact that the monetary transactions were actually off the grid of the claimed securitization. The single transaction was between the investor lenders whose money was kept in a trust-like account and then sued to fund mortgages with the homeowner borrower. At not time was that money ever in the chain of securitization.

The monetary transaction is both undocumented and unsecured. At no time was any transaction, including the original note and mortgage (or deed of trust) reciting true facts relating to the loan by the payee of the note or the secured party under the mortgage or deed of trust. And at no time was the payee or secured holder under the mortgage or deed of trust ever expecting to receive any money (other than fees for pretending to be the “bank”) nor did they ever receive any money. At no time did MERS or any of its members handle, disburse or otherwise act even as a conduit for the funding of the loan.

Hence the mortgage or deed of trust secured an obligation to the payee on the note who was not expecting to receive any money nor did they receive any money. The immediate substitution of servicer for the originator to receive money shows that in nearly every securitization case. Any checks or money accidentally sent to the originator under the borrower’s mistaken impression that the originator was the lender (because of fraudulent misrepresentations) were immediately turned over to another party.

The actual party who made the loan was a large group of institutional investors (pension funds etc.) whose money had been illegally pooled into a PONZI scheme and covered over by an entirely fake and fraudulent securitization chain. In my opinion putting the burden of proof on the borrower to defend against a case that has not been alleged, but which should be (or dismissed) is unfair and a denial of due process.

In my opinion you stand a much greater chance of attacking the mortgage rather than the obligation, whether or not it is stated on the note. Admitting the liability is not the same as admitting the note represents the deal that the borrower agreed to. Counsel should object immediately, when the pretender lender through counsel states that the note is or contains a representation of the deal reached by the borrower and the lender. Counsel should state that borrower denies the recitations in the note but admits the existence of an obligation to a lender whose identity was and remains concealed by the pretender in the foreclosure action. The matter is and should be put at issue. If the Judge rules against you, after you deny the validity of the note and the enforceability and validity of the note and mortgage, then he or she is committing reversible error even if the borrower would or probably would lose in the end as the Judge would seem to predict.

Trial is the only way to find out. If the pretenders really can prove the money is owed to them, let them prove it. If that money is theirs, let them prove it. If there is nobody else who would receive that money as the real creditor, let the pretender be subject to discovery. And they MUST prove it because the statute ONLY allows the actual creditor to submit a “credit bid” at auction in lieu of cash. Any auction in which both the identity of the creditor and the amount due was not established was and remains in my opinion subject to attack with a motion to strike the deed on foreclosure (probably on many grounds) based upon failure of consideration, and anyone who bids on the property with actual cash, should be considered the winner of the auction.

DON’T Leave Your Money on the Table

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Editor’s Comment:

The number of people passing up the administrative review process is appallingly low, considering the fact that many if not most homeowners are leaving money on the table — money that should rightfully be paid to them from wrongful foreclosure activity (from robo-signing to outright fraud by having non-creditors take title and possession).

The reason is simple: nobody understands the process including lawyers who have been notoriously deficient in their knowledge of administrative procedures, preferring to stick with the more common judicial context of the courtroom in which many lawyers have demonstrated an appalling lack of skill and preparation, resulting in huge losses to their clients.

The fact is, administrative procedures are easier than court procedures especially where you have mandates like this one. The forms of complaints and evidence are much more informal. It is much harder for the offending party to escape on a procedural technicality without the cause having been heard on the merits. 

The banks were betting on two thngs when they agreed to this review process — that people wouldn’t use it and that even if they used it they would fail to state the obvious: that the money wasn’t due or in default, that it was paid and that only a complete accounting from all parties in the securitization chain could determine whether the original debt was (a) ever secured and (b) still existence. They knew and understood that most people would assume the claim was valid because they knew that the loan was funded and that they had executed papers that called for payments that were not made by the borrower.

But what if the claim isn’t valid? What if the loan was funded entirely outside the papers they signed at closing? What if the payments were not due? What if the payments were not due to this creditor? And what if the payments actually were made on the account and the supposed creditor doesn’t exist any more? Why are you assuming that the paperwork at closing was any more real than the fraudulent paperwork they submitted during foreclosure?

People tend to think that if money exchanged hands that the new creditor would simply slip on the shoes of a secured creditor. Not so. If the secured debt is paid and not purchased then the new debt is unsecured even if the old was secured. But I repeat here that in my opinion the original debt was probably not secured which is to say there was no valid mortgage, note and could be no valid foreclosure without a valid mortgage and default.

Wrongful foreclosure activity includes by definition wrongful auctions and results. Here are some probable pointers about that part of the foreclosure process that were wrongful:

1. Use the fraudulent, forged robosigned documents as corroboration to your case, not the point of the case itself.

2. Deny that the debt was due, that there was any default, that the party iniating the foreclosure was the creditor, that the party iniating the foreclosure had no right to represent the creditor and didn’t represnet the creditor, etc.

3. State that the subsitution of trustee was an unauthorized document if you are in a nonjudicial state.

4. State that the substituted trustee, even if the substitution of trustee was deemed properly executed, named trustees that were not qualified to serve in that they were controlled or owned entities of the new stranger showing up on the scene as a purported “creditor.”

5. State that even if the state deemed that the right to intiate a foreclosure existed with obscure rights to enforce, the pretender lender failed to establish that it was either the lender or the creditor when it submitted the credit bid.

6. State that the credit bid was unsupported by consideration.

7. State that you still own the property legally.

8. State that if the only bid was a credit bid and the credit bid was invalid, accepted perhaps because the auctioneer was a controlled or paid or owned party of the pretender lender, then there was no bid and the house is still yours with full rights of possession.

9. The deed issued from the sale is a nullity known by both the auctioneer and the party submitting the “credit bid.”

10. Demand to see all proof submitted by the other side and all demands for proof by the agency, and whether the agency independently investigated the allegations you made. 

 If you lose, appeal to the lowest possible court with jurisdiction.

Many Eligible Borrowers Passing up Foreclosure Reviews

By Julie Schmit

Months after the first invitations were mailed, only a small percentage of eligible borrowers have accepted a chance to have their foreclosure cases checked for errors and maybe win restitution.

By April 30, fewer than 165,000 people had applied to have their foreclosures checked for mistakes — about 4% of the 4.1 million who received letters about the free reviews late last year, according to the Office of the Comptroller of the Currency. The reviews were agreed to by 14 major mortgage servicers and federal banking regulators in a settlement last year over alleged foreclosure abuses.

So few people have responded that another mailing to almost 4 million households will go out in early June, reminding them of the July 31 deadline to request a review, OCC spokesman Bryan Hubbard says.

If errors occurred, restitution could run from several hundred dollars to more than $100,000.

The reviews are separate from the $25 billion mortgage-servicing settlement that state and federal officials reached this year.

Anyone who requests a review will get one if they meet certain criteria. Mortgages had to be in the foreclosure process in 2009 or 2010, on a primary residence, and serviced by one of the 14 servicers or their affiliates, including Bank of America, JPMorgan Chase, Citibank and Wells Fargo.

More information is at independentforeclosurereview.com.

Even though letters went to more than 4 million households, consumer advocates say follow-up advertising has been ineffective, leading to the low response rate.

Many consumers have also grown wary of foreclosure scams and government foreclosure programs, says Deborah Goldberg of the National Fair Housing Alliance.

“The effort is being made” to reach people, says Paul Leonard, the mortgage servicers’ representative at the Financial Services Roundtable, a trade group. “It’s hard to say why people aren’t responding.”

With this settlement, foreclosure cases will be reviewed one by one by consultants hired by the servicers but monitored by regulators.

With the $25 billion mortgage settlement, borrowers who lost homes to foreclosure will be eligible for payouts from a $1.5 billion fund.

That could mean 750,000 borrowers getting about $2,000 each, federal officials have said.

For more information on that, go to nationalmortgagesettlement.com.

AFTER THE SALE: PART III On the Courthouse Steps

Submitted by Charles Koppa

The auctioneer represents the “beneficiary” in the sale.. If there is a “reserve amount minimum” (see below) the auctioneer actually bids up as agent for the unnamed beneficiary! The recipient “beneficial trust” is finally publically identified and documented by the Foreclosing Trustee in the recorded Trustees Deed Upon Sale.  Try to find a human officer for that trust!

Beneficiary makes no personal bid, delivers no cash, and is allowed a credit bid!  PROBLEM: a beneficiary (if known) would be a “party in interest” and could not be a bonafide buyer.  An est. 80% of the Courthouse sales go “Back to Beneficiary” (publicly unknown) and therefore are unlawful.  Lack of Notice and availability of Due Process to meet your accuser are historically common.

Predatory devaluations, plus untitled transfer of foreclosed mortgage notes systematically confiscated by “investment trusts” that were structured by Bank Holding Companies with no skin in the game, plus processing by shadow intermediaries “against the borrower”, equals “Tyranny on the Courthouse Steps!”

Sellers have the option of setting a hidden Reserve Price that is above the minimum starting bid.  If a reserve price is in effect, then the seller does not have sell the item unless the high bid meets or exceeds his reserve.  Auctions with a reserve price will be noted in their listing, describing whether the reserve has been met or not.  The actual amount of the reserve price is not revealed to bidders, until it has been met.

When you submit a bid on a reserve price auction, one of three things might happen:
(1) If the reserve has already been met, then your bid will be submitted at one increment above the next highest competitor, in the same manner as an auction without a reserve price.
(2) If the reserve has not been met, and your maximum bid is also less than the reserve, then your bid will be entered at one increment above the next highest competitor.
(3) If the reserve has not been met, but your maximum bid is enough to meet the reserve, then your bid will be entered at exactly the seller’s reserve price.  If your maximum was above the seller’s reserve, then your proxy will defend your bid, up to your maximum.If you are the highest bidder at auction close but the reserve was not met, then neither you nor the seller are obligated to the transaction.  However, you may wish to negotiate further via email, to see if a mutually satisfactory price can be reached.

EXAMPLES:

No sale:
Item #9999 had a minimum starting bid of $100.00
The seller set a reserve price in his listing of $200.00.
At the end of the auction, the highest bid is $175.00.
In this case, the seller is not obligated to sell for $175.00, but may choose to do so anyway.

Sale:
Item #8888 had a minimum starting bid of $900.00.
The seller set a reserve price in his listing of $1,200.00.
At the end of the auction, the highest bid is $1,225.00.
In this case, the seller is obligated to sell for $1,225.00 to the highest bidder.

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