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Zwicker/Amex 18 months in to this mess...finally a trial?


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I was contacted in September of 2010 by Zwicker and Associates and I sent two DV letters in September of 2010 and again in January of 2011 when I was still being ignored.  They never sent me anything and were completely silent until August of 2011.  They sued me in State district court and have been dragging along now for 18 months.  I have answered every single piece of mail using this site and to date they have only been able to provide me copies of a few months of statements that

show that there were never charges, only payments to the account and no documentation of how the balance got up to $10K.

 

Now, I receive a letter from the courts telling me it's time to set a trial within the next 6 months.  I need help and I need it fast.  I'm not down to the wire yet, but I'm ready to fight like crazy.

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I was contacted in September of 2010 by Zwicker and Associates and I sent two DV letters in September of 2010 and again in January of 2011 when I was still being ignored.  They never sent me anything and were completely silent until August of 2011.  They sued me in Idaho district court and have been dragging along now for 18 months.  I have answered every single piece of mail using this site and to date they have only been able to provide me copies of a few months of statements that

show that there were never charges, only payments to the account and no documentation of how the balance got up to $10K.

 

Now, I receive a letter from the courts telling me it's time to set a trial within the next 6 months.  I need help and I need it fast.  I'm not down to the wire yet, but I'm ready to fight like crazy.

Is the court wanting you to set a date or are they saying a date  needs to be set. 18 months plus 6 to go to trial is unjust enrichment lack of procecution, its seems to me. They will probably fight it, but I'd do a motion to preclude any evidence they might have due to the fact they have had 18 months to get or send the information. You did request information did you not?

 

Do this and we'll go from there:

 

1. Who is the named plaintiff in the suit?

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for?

4. Who is the original creditor? (if not the Plaintiff)

5. How do you know you are being sued? (You were served, right?)

6. How were you served? (Mail, In person, Notice on door)

7. Was the service legal as required by your state?

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

9. What state and county do you live in?

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

11. What is the SOL on the debt?

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

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First of all.....thank you for replying.   I'm no idiot, but I really need the help of somebody that is not emotionally involved

in this case!

 

1. Who is the named plaintiff in the suit?  American Express Centurion Bank


2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Zwicker & Associates based in Milwaukie, OR (not my state).

3. How much are you being sued for?  $10,002.00

4. Who is the original creditor? (if not the Plaintiff)

5. How do you know you are being sued? (You were served, right?)  Served in August of 2011

6. How were you served? (Mail, In person, Notice on door)  Served my husband while I was at church one Sunday.

7. Was the service legal as required by your state?  Apparently, from what I gather from Idaho Code.

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  They sent me a debt collection letter in October of 2010 and I replied immediately with a certified letter asking for DV.  I asked again in February of 2011 with another certified letter, but they didn't send a single thing.   I never received a single call from them before they filed the lawsuit 11 months after the first debt collection letter. 

9. What state and county do you live in?  Idaho

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  June 2010

11. What is the SOL on the debt?  4 Years.

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).  So far, they sent discovery which I answered and I sent discovery which they ignored until 3 months had passed. Then they sent me ONE of the TWELVE things I requested in Discovery which was copies of a few years of statements showing that I made LOTS of payments and made almost no charges.    They have never provided me with a full account number and the partial number they refer to does not match the account number that Amex has on my credit report.  I have heard NOTHING from them since March of 2012.  Suddenly, the case was up for Retention and they asked that it be retained in November 2012 and now I get a letter saying that the court is ready for a trial within 60 days. 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  Yes, but they came to nothing. 

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.  Yes, I requested it, in writing and using Certified USPS mail service on two different occasions in October 2010 and February 2011. 

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?   I answered the summons, the complaint, the interogatories, the discovery and 4 different letters telling me that I was being "evasive" and they were giving me another chance.  Each time I requested (in writing and certified) for them to give me an account number that had not been blacked out and they refused in writing saying that I had already been given that item.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

They sent NOTHING. They didn't even have my correct name, address, or the correct year that the account was opened.  There was nothing attached to the complaint. 

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Just some things to consider and start learning. You need to study these so that when things are popped into the room for you, you can grasp what everyone is saying. If not it is sometimes confusing and intimidating. It is not magic or voodoo just legal jargon. I didn't get a chance to read through them much, but looks like Idaho pretty much follows Federal Rules so the format of affidavit in opposition and motions are not unusual. Just look at the Court heading on their paperwork and follow that for form. Then lookup your other arguments.

 

http://www.isc.idaho.gov/ircp Idaho Rules of Civil Procedure

 

http://www.isc.idaho.gov/ire  Idaho Rules of Evidence  especially section 8 hearsay

 

Rule 57.  Time standards for case processing.

(a) The following time standards are adopted as guidelines for judges,
trial court administrators, lawyers, and litigants to assist them in
determining the length of time it should take to conclude a case in
the trial courts:

CIVIL
District Court 540 days from complaint                  Is it in District Court?
Magistrate Court 180 days from complaint                   Is it in magistrate?

 

I'd file a motion to dismiss for lack of prosecution, that waiting is injuring you in the addition interest they will be able to charge. Motion to dismiss and/or a Motion to Strike/Preclude any additional evidence that they come up with. They haven't given you squat, so I figure they will try and throw out the motion to dismiss (which is ok, its mainly smoke screen), the real deal is to get anything that they come up with that they have not already given you in previous discovery striken or precluded. Do so and you remove their standing to sue, thus their case is gone. 

 

 

This will keep you busy for a few hours!!
     

 

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 OP has answered discovery, BUT, may have still have an option to exercise arbitration, because: NO agreement was attached.

 

Was the summons for contract or account stated ? Either way it should have something attached to it. Check your state rules of civil procedures for requirements.

 

As Racercar said arbitration, best to tell the court plaintiff  concealed a contract that had arbitration clause.

 

Did you ask for written agreement/ contract in discovery ?

 

I also would suggest digging deeper into who is actually suing , it maybe NCO who is calling the shots !

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  • 1 month later...

Interesting.... 

 

Zwick/Amex sent a letter to the courts basically saying thanks for the court date, but we intend to file a Motion for Summary Judgement.

Since they've been saying this since October of 2011, I was surprised to see that they really did do it...on Christmas Eve.

 

Looking through the MSJ they included the following:

 

Plaintiff's Motion

Plaintiff's Brief in Support of Motion (Keeps repeating that I "breached the Agreement", but until now they refused to provide me ANYTHING)

Memorandum of Costs : $163.

Affidavit of Pre-Judgement Interest Calculation: $604.89

Order on Plaintiff's Motion for Summary Judgement (Check yes or no)

Judgement (Helpfully filled out for the full amount)

Exhibit 1: Original Complaint dated August 8, 2011

Exhibit 2: Affidavit in Support of Plaintiff's Motion for Summary Judgement (Clearly states that the complaint was for "Breach of Contract"

Exhibit 3: Affidavit of Plaintiff in Support of Judgement (Signed by a records clerk for AMEX and notarized)

Copies of 3 years of Statements showing $7471.05 in Charges and interest and  $7267.42 in payments received.  Nearly $500 in interest and fees were tacked on after my "default".

and FINALLY!!!!!  An official AMEX Cardholder Agreement from 2009.

 

A few questions:

They didn't answer my request for production.  Do I need to ask them again?

 

If they keep saying that I am being sued for "Breach of Contract", do they have to provide the Contract?

 

Now that I finally have an Agreement, is it too elect Arbitration and should I for a $10K debt?   

 

Since they ignored three DV letters (yes, I have proof) and have taken nearly 2 years to file their MSJ, what should I do first?

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Make the court header just like whats on the paper they sent you.

IN THE DISTRICT COURT OF ADA COUNTY IDAHO

AMERICAN EXPRESS
Plaintiff,                                                                            Case No: 13L XXXXXX

Vs.                                                                                     Division:

IdWrknGrl
Defendant.


MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION

COMES NOW Defendant IdWrknGrl appearing Pro Se for her Motion to Compel Private Contractual Arbitration with American Express and as grounds thereto states the following:

1. That on or about August 15, 2011, Plaintiff filed its Complaint against Defendant.

2. Defendant moves this court to compel binding Private Contractual Arbitration with Jams based on the terms and conditions of the American Express Credit Card Agreement

(see Exhibit A, attached).

3. The parties are bound by the American Express Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

 IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM,NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c ) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION
PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT.

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.

4. The Federal Arbitration Act (FAA) 9 USC Section 1-2 provides:A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration, a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract transaction, or refusal, shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

5. The Supreme Court Ruling, decided April 27, 2011, ATT MOBILITY LLC v. CONCEPCION 131 S. Ct. 1740 (2011), states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. "We have described this provision as reflecting both a liberal federal policy favoring arbitration,Moses H. Cone , supra, at 24, and the fundamental principle that arbitration is a matter of contract,Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010 (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ." Furthermore, "The principal purposeof the FAA is to ensure that private arbitration agreements are enforced according to their terms. Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. Animal Feeds international Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA text. Section 2 makes arbitration agreements valid, irrevocable, and enforceableas written (subject, of course, to the saving clause); requires courts to stay litigation of arbitral claims pending arbitration of those claims in accordance with the terms of the agreement; and requires courts to compel arbitration in accordance with the terms of the agreement upon the motion of either party to the agreement . "

6. The Defendant elects arbitration with Jams to settle this dispute.

(see Exhibit B, attached).

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration with American Express pursuant to the American Express Cardmember Agreement and to dismiss Plaintiffs complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending private contractual arbitration with JAMS.

Respectfully submitted,
IdWrknGrl
Defendant, pro'se

By: sign your name here

 

Defendant

your address

city,state,zip

phone number

Certificate of Service,
On January 16, 2013, I IdWrknGrl caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below: Lawyers name and address.By Certified U.S. Mail, Return Receipt Requested

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send this to the law office as soon as you can

your name
your address

law firm name

law firm address

RE: American Express Centurion Bank

Date:01/17/2013

Account File No.XX-XXXXX

To: American Express Centurion Bank/ Attorney Name Here

Regarding the account XX-XXXXX referenced above, the agreement states, "The parties acknowledge that they have a right to litigate claims through a court before a judge or jury, but will not have that right if either party elects arbitration. The parties hereby knowingly and voluntarily waive their rights to litigate such claims in a court before a judge or jury upon election of arbitration by either party."

Pursuant to the American Express cardholder agreement page 6 of 6, I ELECT arbitration via JAMS to resolve our disputes.

In filling out the JAMS forms, I will need some information. Please forward an email address and fax number and contact person's name who will be handling the JAMS claim for your office and for American Express Centurion Bank to my address listed above.

Pursuant to the terms of the agreement We will be responsible for any additional arbitration fees. At your written request, we will consider in good faith making a temporary advance of all or part of your share of any arbitration fees.

your name here is requesting the temporary advance of of all the arbitration fees.

Please advance the sum of $1750.00 to my address listed above or you can send the funds directly to JAMS on my behalf.

All phone calls are inconvenient, so all communications need to be by us mail.

Sincerely,

your name here

Certificate of Service,
On January 16, 2013, I IdWrknGrl caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below: Lawyers name and address.By Certified U.S. Mail, Return Receipt Requested


 

 

 

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http://www.jamsadr.com/rules-download-rules/

Case Submission Form

Demand for Arbitration

You wont need to do anything with jams yet till the court grants the arbitration or tells you to do so.

get some cheap binders to put your Exhibits A & B in,you will need 3 one for everybody + 1 extra just in case the judge spills coffee.check your court rules on exhibits.

 

Assuming that each exhibit is one page/picture, I would label each one A, B, C etc. consistently in the upper right corner and make a cover sheet that is an index to each exhibit you have.

Exhibit Index:

Exhibit A - 01/17/2013 - copy of American Express Credit Card Agreement

Exhibit B - 01/17/2013 - copy of The Defendant elects arbitration with Jams to settle this dispute

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However....they are suing me for Breach of Contract but didn't attach the contract to the complaint.  Nor have they responded to my discovery requests.

 

The only statements that they have submitted (2008-2010) show that I charged $7200 (including interest) and paid $7200. 

 

Nothing shows how they came up with the amount due.  In fact, I have my bank statements from 2007 showing that I paid $9978.00 on my account when I sold my house.  Now that I'm digging deeper into my old records, I'm thinking that they might have to show me more statements from the time period of 2007-2008.  But since I asked for them and they refused, can they suddenly bring them to court?

 

Still considering Arbitration.....

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They would make that argument.  As far as this being a litigation waiver, doesn't look like it to me.  Looks more like they've done little to nothing over the past 18 months.  I'd check your state case law regarding waiver and see what it says.

 

Interesting that they provided a 2009 agreement.  Does it contain JAMS?  I know the ones prior to November 2009 were Naf and AAA only.  Amex amended their contract on paper billings for the statement closing dates of 11/27/09.  It's buried on page 7 or so, replacing naf with jams because as it states:  Because  NAF no longer does consumer arbitrations.

 

Thus, I wouldn't be surprised if Z sent you one without that change.

 

Lastly, their contracts as written include and encompass claims against....Debt collectors.   

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Okay, after about 70 hours of research I think I may have found some things that have made me decide to fight this thing out in court and NOT elect Arbitration.

 

First of all, I'm up for a MSJ hearing in a week.  They filed the MSJ on Christmas Eve after almost a year of complete silence. 

 

Yes, I've filed an Opposition to Motion for SJ, but I just didn't feel confident about it.

 

 

I drafted my discovery requests using this board but only got a couple years of statements, nothing else.  This was in February 2012.  I haven't heard one word since the day I got them. 

 

Now, attached to the MSJ I have received the exact same statements, an Agreement from 07/2009 and an affidavit from American Express.

 

So not to run on and on I will submit these things one by one.  PLEASE, friends, let me know if I'm way off base here!!

 

All 100+ pages of the statements that they sent me say that the company sending them is American Express.  They give addresses in Los Angeles for payments by mail and an address in El Paso if you have questions.  Also, there is an address in Fort Lauderdale, FL for Membership Rewards questions.  But I've read every single page of these statements and NOWHERE on them do I find the words

 

American Express Centurion Bank of Utah

 

If that is the company that is suing me, do they have standing? 

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Next item of interest:  The Affidavit from AMEX

 

It does not state my name correctly.  It omits my middle initial (I have never had a single account without it).

 

It does not state my account number.

 

It does not state the date that my agreement started or ended.

 

It refers to an application that "if available" will be attached as Exhibit C.  But no attachement. 

 

Also, it's signed by an AMEX employee that was recently called out in a NY court for robo-signing these things.

 

A little more digging...the Notary that signed it works for the CA/Law firm in another state.  Doesn't seem quite right

that an AMEX employee drove to another state to have something notarized, right? 

 

What do I need to do to show that this thing is possibly robo-signed? 

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The AMEX employee (affiant) gave a NY address, correct?  What is stated at the bottom of the affidavit?  Normally, there's a statement such as "sworn before me this day"...some statement that indicates the notary and affiant were in each other's presence. 

 

Also, have you investigated the notary?  Look her up.  There should be either a MA notary organization or a government website that would allow you to look up the name of the notary to see if she exists or if she is still licensed.

 

This is from the MA governor's website:

 

Responsibilities of a Notary Public

  • A notary public may witness documents for use in Massachusetts and in other states. However, a notary public may only witness documents so long as he or she is physically present in Massachusetts at the time of the notarization.

 

The notary had to be in MA in order to notarize that affidavit.

 

  • The notary public must ask for and receive satisfactory evidence of identity (e.g. driver's license, passport)

 

How did the notary identify the person if that person was not in her presence to present identification?

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Okay, after about 70 hours of research I think I may have found some things that have made me decide to fight this thing out in court and NOT elect Arbitration.

 

First of all, I'm up for a MSJ hearing in a week.  They filed the MSJ on Christmas Eve after almost a year of complete silence. 

 

Yes, I've filed an Opposition to Motion for SJ, but I just didn't feel confident about it.

 

 

I drafted my discovery requests using this board but only got a couple years of statements, nothing else.  This was in February 2012.  I haven't heard one word since the day I got them. 

 

Now, attached to the MSJ I have received the exact same statements, an Agreement from 07/2009 and an affidavit from American Express.

It appears from BV80's response that the affidavit could be negated in court and the Agreement is generic without your name or account number on it. Appear's that both could be attacked pretty successfully in court and striken. Here a "contract" must include the agreement, terms, interest rate, signature all contained in the four corners of the document. 

 

So not to run on and on I will submit these things one by one.  PLEASE, friends, let me know if I'm way off base here!!

 

All 100+ pages of the statements that they sent me say that the company sending them is American Express.  They give addresses in Los Angeles for payments by mail and an address in El Paso if you have questions.  Also, there is an address in Fort Lauderdale, FL for Membership Rewards questions.  But I've read every single page of these statements and NOWHERE on them do I find the words

 

American Express Centurion Bank of Utah

I don't think this really matters much as the affidavit and alledged defective "bill of sale" aka agreement. But it is an arguing point against their suit, but don't hang your hat on this one.

 

If that is the company that is suing me, do they have standing? 

 

If you can get the affidavit and bill of sale destroyed, no they have no standing.

Please post them if you can (not the 100+) The agreement and their "alledged affidavit"

 

Have you sent any admission's yet?

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I would attack the affidavit, but it's less likely to be stricken, after all Amex is the original creditor and affiant is an employee of the OC.

 

I would take another angel and attack their records " Amex vs Vinhnee " is a good case to read.

 

Did AMEX statements come form NJ ? or PA? . You may be dealing with NCO.

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Even if the affiant is an employee of the OC (AmEx), the affidavit still has to comply with the laws of the state in which it was allegedly taken.  Unless MA law states that a MA notary can notarize documents from any state without the presence of the affiant, it might not be a valid affidavit. 

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BV80 No argument on that, I was just saying don't leave any doors open. Most judges in my district take affidavit on its face value.

 

I once witness 54 default in 15 minutes.(I was counting the clock infront of me in court)

The only question judge ever asked was " Is it verified ? " yes your honor. "Then judgement for the plaintiff". No one questioned what verified was except one attorney and the answer was: If the affiant can verify then it's competent to be accepted by court !

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