Discovery Changes and Broadens After Hawaii Supreme Court Decision

Based on questions that greeted me when I got to my desk this morning, here are just some of the thoughts that apply — a case review and analysis for each case being necessary to actually draft the right questions and to close any trap doors.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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NOTE: Procedural questions should be posed to local counsel who knows local discovery rules and court procedure. My answer is based upon general knowledge and not based upon any experience in litigating discovery issues in your state.
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The effect of the new decision in the link above is most probably (a) a broadening of existing discovery requests (b) rehearings on recent decisions denying discovery and (c) an opportunity and a reason to ask the questions you really want to ask.
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The first question is whether the questions you would ask now are already within the scope of the questions you have already asked. If so, generally speaking, there is nothing to do. In this scenario you could send a letter, I think, that clarifies your questions in view of the new Supreme Court ruling. The letter would specifically address certain issues that were raised in questions already asked and tells them the details you expect. This could be done in a supplemental request for discovery citing the new Supreme Court decision. Check with local counsel.
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Second, and this is more likely, your case should be analyzed within the context of the new decision. It seems to me that the decision opens up some broader scope of discovery than had previously been submitted. Your opposition will fight this tooth and nail. Pointing to the Hawaii Supreme Court decision is not going to be enough even if the property is in Hawaii. You need to have a very clear narrative that explains why you are asking for the answers to questions and the production of documents and answers to request for admissions. Without a clear defense narrative your first Motion to Compel them to respond will likely fail. The general rule is that discovery, with certain exceptions, can be any request that could lead to the discovery of admissible evidence. By “admissible” the meaning is evidence that is relevant and “probative” to the truth of the matter asserted. It isn’t relevant unless it ties into either the case against you or the defense narrative. Lack of clarity can be fatal.
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The opposition is going to claim privilege, privacy, and proprietary information. You should force them to be more specific as to how the identification of the creditor is proprietary, or an invasion of privacy or some privilege. Tactically I would let them paint themselves into a corner, so you need someone who knows how to litigate. Once it is established that they can’t or won’t disclose the matters into which you have inquired, then the question becomes how they will prove authority from the creditor without identification of the creditor from whom all authority flows.
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That could lead to a motion for summary judgment wherein you allege that they have failed and refused to make disclosure as to the most fundamental aspect of pleading a case. Since their authorization to initiate and maintain a foreclosure action must relate back to the authorization of the creditor (owner of the debt) and they now have not or will not identify that party(ies), the presumption of authority must be considered rebutted, thus requiring them to prove their case with facts and not with the benefit of legal presumptions.
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Since they have admitted on record that they cannot prove they are acting on behalf of the creditor, it follows that they cannot prove authority to initiate or maintain a foreclosure action. Hence, the outcome is certain. They will not be able to prove standing although they might have made certain assertions or allegations that might pass for standing such that they can withstand a motion to dismiss or demurrer. The essential assertion of standing is either rebutted or barred from proof. Hence judgment should be entered for the homeowner.
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Some of this might come out in a motion for sanctions which is virtually certain to come from you when they fail to properly respond to your requests for discovery. This is intricate litigation that should be handled by a local attorney.
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Again don’t start a second front in the battle if you have already covered it in your previously submitted requests for discovery. I think you have asked most of the right questions, although now with this decision it becomes more refined.Among the questions I would ask in view of the new decision from the Supreme Court of Hawaii are the following presented only as narrative draft, subject to improvement by local counsel:
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  1. Does the trust exist under the laws of any jurisdiction? If yes, describe the jurisdiction in which the trust is recognized as existing.
  2. Was the trust organized under the laws of any jurisdiction? If yes, when and where?
  3. Does the trust own the subject debt? If yes, please explain why the trust is not claimed as a holder in due course.
  4. Does the trust allow the beneficiaries an interest in the assets of the trust?
  5. Please describe the manner in which the certificate holders are beneficiaries of a trust.
  6. Does the named Trustee of the Trust have any rights or obligations to monitor trust assets?
  7. Does the named Trustee of the Trust engage in any activities in which it is administering the assets of the Trust.
  8. Describe the assets of the Trust.
  9. Please identify the Trustor or Settlor of the Trust.
  10. Please identify the date, place and parties involved in any transaction in which assets were entrusted to the named trustee for the benefit of named or described beneficiaries.
  11. Please identify the date, place and parties involved in any transaction in which assets were purchased by the Trust or in which a Trustor or Settlor purchased assets that were then entrusted to the named trustee of the Trust for the benefit of named or described beneficiaries.
  12. Is the named Trust a fictitious name being used by one or more other entities?
  13. Do the certificates contain provisions in which the holder of the certificate disclaims any right, title or interest to assets of the Trust or any right, title or interest to the subject loan? If yes, please describe the provision, in what document it is located, the date of the document, and where that document currently exists in the care, custody and/or control of the Trust or any party doing business as or on behalf of the named Trust.
  14. Please describe the owner of the debt, to wit: describe the party currently carrying a receivable on its books that includes the subject loan, wherein no other party is ultimately entitled to proceeds of payments, proceeds or recovery on the subject loan.
  15. Is it your contention that residential foreclosure is legally allowed without ownership of the underlying debt from the borrower? If so, describe the elements of a party who would be legally allowed to foreclose on a residential mortgage without ownership of the underlying debt.
  16. Does the Trust have a bank account in the name of the Trust?
  17. Does the Trust have a bank account in the name of the named Trustee as Trustee for the Trust.
  18. If the answer to either of the two preceding question is yes, please describe the account, its location and identify the signatories on said account.
  19. Please describe the retainer agreement between the named Trust and current counsel of record including all the parties thereto, the date(s) of execution and date that the agreement became effective, the names of the signatories, and their authority to execute the instrument.
  20. With respect to loans attributed to or allegedly owned by the Trust please describe the parties who make decisions, along with a description of their authority, with respect to the following relating to the subject loan:
    1. Whether to foreclose
    2. When to foreclose
    3. What documents are needed for foreclosure
    4. Applications for modification
    5. Terms of modification
    6. Terms for settlement of the debt

World Savings Bank Loans Were Securitized Before Wachovia Merger

World Savings Bank  was acquired by Wachovia Bank  which in turn was acquired by Wells Fargo.  We have previously reported here that we had no information regarding the actual securitization of loans had been originated by World Savings Bank.  Now we have that information. And in a case of the right hand not aware of the left hand it turns out the source is our very own senior securitization analyst — Dan Edstrom, who operates DTC Systems (shown as watermark on documents shown below).

The original opinion that I had written about was that virtually all of the loans originated by world savings bank were eventually securitized either by World Savings Bank directly,  or by Wachovia Bank after it acquired WSB, or by Wells Fargo bank after it acquired Wachovia Bank.  I am now more sure than ever that this is correct. Despite the public assurances during the mortgage meltdown WSB was in fact acting solely as an originator and not as a lender in many transactions. Many other transactions in which they were technically the lender were actually closed in anticipation of sale into the secondary market for securitization.

If you look at the link below, you will be able to see part of the information that has been sent to me. Apparently Foreclosure Hamlet has been ahead of me on this issue since some of the screenshots show that they are from that blog site. This opens the door to a whole set of cases in which Wells Fargo is insisting that it is the current creditor when in fact the loan was securitized and sold into what appeared to be a REMIC trust. of course it still remains an issue as to whether or not the money taken from investors for the purchase of mortgage bonds ever made it into the trust; so it remains an issue as to whether or not the trust is the creditor or the investors are the creditor.

Thus it remains an issue as to whether or not any of the alleged securitization participants can claim authority to act on behalf of the “trust beneficiaries” when the actual status of the entity (the trust) was ignored by those parties. It might be that they can only claim apparent authority as opposed to legal authority since the documents that were given to the investors show a structure that is very different from what was done in  the real world.

World Savings Bank REMICs

Comment from Dan Edstrom:

These docs are mostly from DTC Systems.  We have been reporting on this since at least October 2010.  DTC Systems does Securitization Reverse Engineering and Failure Analysis for attempted World Savings securitizations and they are also included in the LivingLies combo’s where your client had a World Savings loan.  We have the names of all (or most) of the REMICs.  In a judicial foreclosure case in the mid-west a Wells Fargo expert (a former World Savings Bank employee) testified that the loan was pledged to a World Savings REMIC, but was “unpledged” when the homeowner was behind on the loan.  This is why we see several World Savings promissory notes with an endorsement to The Bank of New York on the back but they are stamped “Cancelled”.

Which is very interesting because the PSA states that the loans will be endorsed to the trustee (without recourse and showing an unbroken chain of endorsements (and/or certificates of corporate succession) from the originator thereof to the Person endorsing ti to the Trustee AND an original assignment to Trustee or a copy of such assignment.
So they seem to have the FORM of without recourse but the SUBSTANCE of the transaction is recourse?  What is the purpose of such ambiguity?  Or is it only ambiguous now in light of the mortgage meltdown and the related handling, such as that discussed (unsafe and unsound handling) in the OCC Cease and Desist Consent Order against Wells Fargo and others?
Also note this law from CA which I have yet to see brought up in a case like this (it seems that it is highly probable this same law exists in most states):
CA Civ. Code 1058
Redelivering a grant of real property to the grantor, or canceling it, does not operate to retransfer the title.
The expert testified that it was a pledge and that World Savings (and thus Wells Fargo) owned both the loan and the REMIC.

 

The Devil Is In the Details: Summary of Issues

Editor’s note: in preparing a complex motion for the court in several related cases I ended up writing the following which I would like to share with my readers. As you can see, the issues that were once thought to be simple and susceptible to rocket docket determination are in fact complex civil cases involving issues that are anything but simple.

This is a guide and general information. DO NOT USE THIS IF YOU ARE NOT A LICENSED ATTORNEY. THESE ISSUES ARE BOTH PROCEDURALLY AND SUBSTANTIVELY ABOVE THE AVERAGE KNOWLEDGE OF A LAYMAN. CONSULT WITH AN ATTORNEY LICENSED IN THE GEOGRAPHICAL AREA IN WHICH THE PROPERTY IS LOCATED.

If you are seeking litigation support or referrals to attorneys or representation please call 520-405-1688.

SUMMARY OF ISSUES TO BE CONSIDERED

 

1)   Whether a self proclaimed or actual Trustee for a REMIC Trust is empowered to bring a foreclosure action or any action to enforce the note and mortgage contrary to the terms of the Trust document — i.e., the Pooling and Servicing Agreement (PSA) — which New York and Delaware law declare to be actions that are VOID not VOIDABLE; specifically if the Trust document names a different trustee or empowers only the servicer to bring enforcement actions against borrowers.

2)   Whether a Trustee or Servicer may initiate actions or take legal positions that are contrary to the interests of the Trust Beneficiaries — in this case creating a liability for the Trust Beneficiaries for receipt of overpayments that are not credited to the account receivable from the Defendant Borrowers by their agents (the servicer and the alleged Trustee) and the creation of liability to LaSalle Bank or the Trust by virtue of questionable changes in Trustees.

3)   Whether US Bank is the Plaintiff or should be allowed to claim that it is the Trustee for the Plaintiff Trust. Without Amendment to the Complaint, US Bank seeks to be substituted as Plaintiff in lieu of Bank of America, as successor by merger with LaSalle Bank, trustee for the Plaintiff Trust according to the Trust Document (the Pooling and Servicing Agreement) Section 8.09.

a)    A sub-issue to this is whether Bank of America is actually is the successor by merger to LaSalle Bank or if CitiMortgage is the successor to LaSalle Bank, as Trustee of the Plaintiff Trust — there being conflicting submissions on the SEC.gov website on which it appears that CitiMortgage is the actual party with ownership of ABN AMRO and therefore LaSalle Bank its subsidiary.

b)   In addition, whether opposing counsel, who claims to represent U.S. Bank may be deemed attorney for the Trust if U.S. Bank is not the Trustee for the Trust.

i)     Whether opposing counsel’s interests are adverse to its purported client or the Trust or the Trust beneficiaries, particularly with respect to their recent push for turnover of rents despite full payment to creditors through non stop servicer advances.

4)   Whether any Trustee for the Trust can bring any enforcement action for the debt including foreclosure, assignment of rents or any other relief.

5)   Whether the documentation of a loan at the base of the tree of the assignments and transfers refers to any actual transaction in which the Payee on the note and the Mortgagee on the Mortgage.

a)    Or, as is alleged by Defendants, if the actual transaction occurred when a wire transfer was received by the closing agent at the loan closing with Defendant Borrowers from an entity that was a stranger to the documentation executed by Defendant Borrowers.

b)   Whether the debt arose by virtue of the receipt of money from a creditor or if it arose by execution of documentation, or both, resulting in double liability for a single loan and double payment.

6)   Whether the assignment of mortgage is void on its face as a fabrication because it refers to an event that occurred long after the date shown on the assignment.

7)   Whether the non-stop servicer advances in all of the cases involving these Defendants and U.S. Bank negates the default or the allegation of default by the Trust beneficiaries, the Trust or the Trustee, regardless of the identity of the Trustee.

a)    Whether a DEFAULT exists or ever existed where non stop servicer advances have been paid in full.

b)   Whether the creditor, under the debt obligation of the Defendant borrowers can be allowed to receive more than the amount due as principal , interest and expenses. In this case borrower payments, non stop servicer advances, insurance, credit default swap proceeds and other payments by co-obligors who paid without subrogation or expectation of receiving refunds from the Trust Beneficiaries.

c)    Whether a new debt arises by operation of law as a result of receipt of third party defendants in which a claim might be made by the party who advanced payment to the creditor, resulting in a decrease the account receivable and a corresponding decrease in the borrower’s account (loan) payable.

i)     Whether the new debt is secured by the recorded mortgage that the Plaintiff relies upon without the borrower executing a security instrument in which the real property is pledged as collateral for the advances by third parties.

8)   Whether turnover of rents can relate back to the original default, or default letter, effectively creating a final judgment for damages before evidence is in the court record.

9)   Whether the requirements of a demand letter to Defendants for turnover of rents can be waived by the trial Court, contrary to Florida Statutes.

a)    Whether equity demands that the turnover demand be denied in view of the fact that the actual creditors — the Trust Beneficiaries of the alleged Trust were paid in full up to and including the present time.

b)   Whether, as argued by opposing counsel, the notice of default letter sent to Defendant Borrowers is an acceptable substitute to a demand letter for turnover of the rents if the letter did not mention turnover of rents.

c)    Whether the notice of default letter and acceleration was valid or accurate in view of the servicer non-stop advances and receipt of other third party payments reducing the account receivable of the Trust beneficiaries (creditors).

i)     Whether there was a difference between the account status shown by the Servicer (chase and now SPS) and the account status actually shown by the creditor — the Trust Beneficiaries who were clearly paid in full.

10)         Whether the Plaintiff Trust waived the DUE ON SALE provision in the alleged Mortgage.

a)    Whether the Plaintiff can rely upon the due on sale provision in the mortgage to allege default without amendment to their pleadings.

11)         Whether sanctions should apply against opposing counsel for failure to disclose essential facts relating to the security of the alleged creditor.

Whether this (these cases) case should be treated off the “rocket docket” for foreclosures and transferred to general civil litigation for complex issues

Attorneys Admit No Authority to Represent US Bank in Foreclosure

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EDITOR’S COMMENT: When I raised this issue some years back, most lawyers thought I was stretching for a technicality. But in fact the lack of authority to represent a forecloser in litigation lies at the core of the “plausible deniability” defense that the Banks raise when confronted with a lawsuit over a wrongful foreclosure.

The challenge should be in the form of a Motion for Proof of Authority to Represent. Whether they come up with the proof or not, you are in a better position. If they admit no authority the case is over, at least for the moment. If they show the proof, then the Bank can’t say they didn’t know what was going on.

The exchange below shows clearly that the foreclosure would have proceeded with a rubber stamp from the Judge had the borrower not raised defenses and challenged US Bank on its right to foreclose. Attorneys for the Banks are getting a little more careful now about what they say in court since there is a movement afoot to hold them responsible for fraudulent foreclosures. So in this exchange with the Court, the lawyer for the Bank admitted that he had no contact with US Bank nor did he represent the Bank.

BOMBSHELL- Your Honor, We Don’t Represent The Plaintiff….EXACTLY!
January 10th, 2012 | Author: Matthew D. Weidner, Esq.

http://mattweidnerlaw.com/blog/2012/01/bombshell-your-honor-we-dont-represent-the-plaintiff-exactly/

The following is a transcript from a hearing when I was sitting in a courtroom where a most extraordinary exchange occurred.

The Plaintiff in the case is, “US Bank”. “US Bank” is suing a homeowner, trying to throw them into the street. There is an attorney standing in the courtroom arguing on behalf of “US BANK”….the judge is upset because she’s been trying to figure out who to hold responsible when the Plaintiffs who are foreclosing are ignoring rules of the Florida Supreme Court, abusing homeowners and just generally making a real mess of things and the responses out of the Plaintiff sound like an Abbott and Costello Routine called, “Who’s On First”….

Who owns the note? We don’t own the note, “they” own the note. Who’s “they”? “They” who? The who that owns the note.

And then that’s when this exchange occurs:

“U.S. Bank is not our client. We have no communication with them on this loan.”

Whoa, say what?

“U.S. Bank is not our client. We have no communication with them on this loan.”

WHICH IS PRECISELY WHAT IS WRONG WITH THIS ENTIRE STINKING SYSTEM CALLED THE AMERICAN LEGAL, FINANCIAL AND FORECLOSURE MESS.

A bank, US BANK, is foreclosing, but they are not represented by an attorney. US Bank is the Wizard Behind The Curtain, somewhere there’s someone else calling the shots. Someone else deciding not to accept a modification. Someone else not accepting a short sale. Someone else pulling the strings. To which my friend Rand, quite correctly responds:

MR. PEACOCK: Your Honor, I’m a little bit
troubled because plaintiff’s counsel just said
that the plaintiff — she is not their client or
vice versa. That makes a real representation
issue. If they are not represented by her firm,
she cannot advocate on their behalf, and they
can’t continue this lawsuit.

This is precisely what is wrong with this country. Exactly what what is wrong with what is choking our court system. Exactly why our court system has such problems with what is happening.

Full transcript below:

March 11 CL
http://mattweidnerlaw.com/blog/wp-content/uploads/2012/01/March-11-CL.pdf

 

THE FIRST LIE: “WE REPRESENT THE PLAINTIFF BANK”

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“My head almost exploded clear off my body last week when I heard a foreclosure mill exclaim to a judge when questioned about how she was going to get a complaint verified: “But we don’t represent the Plaintiff, we represent the servicer!” (Editor’s Note: That is an admission that they filed a lawsuit on behalf of someone they do not represent. They are not the attorney for the Plaintiff but they filed the suit anyway!)

EDITOR’S NOTE: Weidner has it right here and this is a very ripe area of vulnerability for Banks and the lawyers who represent them. The article below gives you a couple if ideas about that.

As I have repeatedly said on these pages, the first words out of the mouth of the lawyer seeking to foreclose is probably a lie: “Good Morning, your honor my name is John Smith and I represent the holder of this loan, Aurora Loan Servicing.” After stating his name, the rest was at best a misstatement from lack of knowledge and probably just a lie.

The foreclosure mills send out lawyers who have no idea whether they represent the bank or any other party who is seeking to foreclose. And when he states that he  represents the holder,, he only knows that he was told to say that, not that it is true or even if the party whom he alleges to represent would agree. This entire game is made up of plausible deniability and “excusable neglect” so that when caught in the lies, each one can say we didn’t realize our information was bad. But they do know their information is bad and that is their vulnerability.

I would counsel attorneys to file a motion for proof of authority to represent as soon as the first pleading is filed — the compliant in judicial states and the motion to dismiss in the non-judicial states. And I would suggest you press the point by testing their proof through discovery. Most of the time they will cave and revamp their strategy. I actually know of a few cases where the filing of that motion alone was enough for the foreclosing parties to simply vanish.

Second, I again repeat that you should raise an immediate objection, based in part on your challenge to their authority to represent. When the statement is made that “we represent the Plaintiff” or “we represent the holder” or “we represent the creditor” that is a statement of fact, which the lawyers want to be tacitly admitted into the narrative of the case. Your objection should be along the lines of no foundation, that counsel is testifying, that if he is testifying you want to conduct a voir dire examination to determine if he has any personal knowledge for making that assertion, and if so, where he got his information.

Even if he say “I represent U.S. Bank” the same objections would apply after he makes his first argument of “fact” rather than law. It is the same as the “default.” How does he know that a default has occurred.  What contact has he had with the creditor? Who is the creditor. How do we know the creditor has not been satisfied and that the note and mortgage are therefore satisfied? We know that the servicers and others are trying to sneak in under the umbrella of the note and mortgage when their claim, for themselves, has nothing to do with the note or mortgage.

BE ALERT! And don’t assume anything. Challenge everything.

Fraudclosure Mill- Just Who Is Your Client Anyway?
Author: Matthew D. Weidner, Esq.

http://mattweidnerlaw.com/blog/2011/12/fraudclosure-mill-just-who-is-your-client-anyway/

A question that must be asked in every foreclosure case is just who hired the Plaintiff mill that is prosecuting the case…and who is paying that mill?

There has been a battle raging for years now between consumer attorney warriors who have been working to crack the secret relationship between their attorneys and the fake plaintiff that is named in the foreclosure lawsuit.

We’re especially cracking this relationship when judges start asking real questions or start putting the plaintiff actually comply with the Supreme Court’s rules.

My head almost exploded clear off my body last week when I heard a foreclosure mill exclaim to a judge when questioned about how she was going to get a complaint verified:

“But we don’t represent the Plaintiff, we represent the servicer!”

This is exactly the case and this is precisely the problem. Well, here’s where things get even more interesting. The referrals don’t come from the servicer, they come from a computer….and that’s a problem….or at least it should be if state bars and judges really started digging into this. It’s one of the backstories that’s running behind the Nevada Attorney General v. LPS Lawsuit, first addressed by my friend, Nick Wooten and a dude named Bubba Grimsley, see this article in HousingWire:

The alleged splitting of attorney fees between foreclosure law firms and third-party mortgage servicing providers is the subject of another lawsuit, bringing the number of cases filed on this issue to five within the past seven months, said Nick Wooten, an Alabama-based plaintiff’s attorney involved in all of the cases.

By mid-May, Wooten said he expects to file 10 to 12 additional cases, making similar allegations about what he claims are illegal, split-attorney fee arrangements between mortgage servicing outsourcers and law firms. The cases are concentrated in the Northern District of Mississippi, the Southern District of Alabama and the Northern District of Florida-Pensacola division.

NICK WOOTEN
http://www.housingwire.com/2011/04/22/lawyer-intensifies-fee-splitting-battle-against-mortgage-servicing-providers

And what did the banksters do when confronted by these allegations? Why they attacked the attorney that dared to challenge them? From another article in HousingWire:

An Alabama circuit court judge denied a motion Wednesday from Lender Processing Services (LPS: 14.30 -17.53%) for sanctions against attorney Nick Wooten and also declined to seal a transcript and default services agreement at the heart of Wooten’s cases.

LPS alleged in April http://www.housingwire.com/2011/04/26/lps-fires-back-with-motion-seeking-sanctions-against-alabama-attorney that Wooten, who is suing LPS in several cases on behalf of homeowners, used confidential information from a bankruptcy case he was handling between Larry David Wood and Karen Wilborn Wood against Option One Mortgage, and filed multiple lawsuits against LPS in other states using that information.

http://www.housingwire.com/2011/05/12/judge-declines-to-sanction-lawyer-involved-in-lps-fee-splitting-cases
KEEP AT THEM NICK!

 

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