Winelover

Asset Acceptance Attorney asking Defendant for an extension of time

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Hello everyone,

 

Up until now,  I have found most of my answers by researching this site. I think I am even more

confused now tho and would really appreciate any help or guidance you could give. To start from

the beginning:

1. Asset Acceptance is the plaintiff.

2. Rodenburg Law Firm is the plaintiff's attorney

3. Being sued for $7,000.00

4. BOA is the original creditor.

5. Was served in person and service was legal

6. No prior correspondence from Asset Acceptance at all

7. North Dakota

8. Last payment was April 2009, SOL is 6 years

9. Status of this case is where I am confused and need your help. To elaborate:

 

Plaintiff's attorney served me a summons on June 4, 2012 (nothing attached)

 

I responded immediately with a letter requesting written validation since I had not received

any prior correspondence.

 

June 18, 2012 I received a letter from Plaintiff's attorney stating they had no duty to provide "verification" after the 30 day vaildation period has expired, but stated they ordered account documentation and enclosed an affidavit from AA dated April 16th 2012, but notarized on May 9th, 2012 and what they refer to as a "Statement of Account" for AA with my name and the address I lived at when the summons was served, but not my address for any of the dates listed on their supposed "Statement of Account".  Also listed on the statement was the last 4 of the account #, a purchase date of November 22, 2011, a charge off balance and a statement date of May 7, 2012 stating that AA is an assignee of BOA.

 

I responded to and answered the summons denying everything stating that I am entitled to validation of the alleged debt.

 

October 25, 2012 Plaintiff's attorney sent the last 9 months of CC statements from BOA, a Cardholder agreement, a Bill of Sale and Assignment of Loans dated 11/22/2011 that does not reference my name or account # stating bulk sale (11/18/2011) and an attached Schedule A that is redacted with a BOA Acct # and My name and the amount (it looks like AA typed it up themselves on a spreadsheet.

 

November, 2012 I sent Plaintiff's attorney a letter stating that i dispute the alleged debt in full and that

basically all of the documents that they sent me either didn't prove anything relating to me or that they have to be attested that they are true and accurate or in the digital world we live in everything can be faked and manipulated whether intentional or not.

 

December 11, 2012 I received Plaintiff's  Request for POD's and Interrogatories

 

January 7, 2013 I mailed my answers to Plaintiffs Request for POD's and Interrogatories as well as my own Request for POD's directed to Plaintiff.

 

January 11, 2013 Plaintiff's attorney filed papers with the court along with a MSJ. (no papers had actually been filed with the court prior to this date).

 

February 7, 2013 I filed a request for an extension of time to respond to the MSJ because I had not received discovery answers from plaintiff.

 

February 13th, 2013 Plaintiff's attorney withdrew the MSJ stating that they inadvertently neglected to respond to my discovery requests, and were not recognized as discovery requests and are in the process of responding to such requests.

 

February 15th, 2013 the judge granted the extension of time until April 7, 2013.

 

March 11, 2013 I faxd and mailed a good faith letter to Plaintiff's attorney stating that I am still waiting for discovery answers and reminded them that it has been well over 30 days (actually over 60 days). 

 

March 13, 2013 I received a letter from Plaintiff's attorney requesting an extension to April 5, 2013 because my discovery requests were not recognized until February 12, 2013 and seeks documentation that will take more than 30 days to obtain.

 

Ok, so now you have the whole story so far (sorry to be so long winded). I have no idea what I should do next. I was going to file a motion to compel, hoping that they would not respond and then file a motion to dismiss. But now they are requesting an extension. It has been more than 60 days. I have tried researching this, but not really finding any solid answers. Do I have to agree to the extension? Would that even be in my best interest or is there something else I should be doing? I feel like they are just yanking my chain, but really have no idea what to do next. I appreciate any help, suggestions or direction anyone could provide.

 

 

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February 15th, 2013 the judge granted the extension of time until April 7, 2013.

 

 

Looks like they have until April 7. Extensions are routinely granted, I suggest you use the additional time to study, you are making a bunch of procedural errors here. The answers to most of your questions are in your rules of civil procedure.

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Send them request for admissions. Make them admit they don't have what they haven't gotten you. If they deny and say they do have it, let's see if they come up with it on April 5th. Should be interesting. They will most likely butcher their whole case.

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This is a FDCPA violation by the way, assuming there is a way to prove it.

 

How is no prior correspondence an FDCPA violation?

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He beat me to it. They can sue you out of the blue, they are under no obligation to send you a bunch of collection letters. If they do send one, you can request validation.

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The judge already ordered an extension, if they want more time give it to them.   All the time in the world is not going to make a junk debt buyers case stronger.   Generally speaking, delays, both civil and criminal only help the Defendant.   As more time passes more things get lost, people no longer care, witnesses die, and whole laundry list of things that only help you.    This is not a complex case where they need to find witnesses or do complex  testing on the evidence.   They want a delay to try and wear you down.   Flip that on them and wear them down by just being rentless.   Agree to their delays and then just hit them with more paperwork.  

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Thanks for the replies and suggestions. Flyerfan, I think I will take your advice and send them a request for admissions.

I forgot to ask a question. The judge granted an extension of time to answer the MSJ, but then they withdrew it, so is there anything that I have to answer or file with the courts by the extension date?  That might be a dumb question, but you guys are the pro's here and as Bruno TheJDBKiller said - I have alot of learning and studying yet to do.

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Thanks for the replies and suggestions. Flyerfan, I think I will take your advice and send them a request for admissions.

I forgot to ask a question. The judge granted an extension of time to answer the MSJ, but then they withdrew it, so is there anything that I have to answer or file with the courts by the extension date?  That might be a dumb question, but you guys are the pro's here and as Bruno TheJDBKiller said - I have alot of learning and studying yet to do.

 

If the MSJ was withdrawn then no, it is no longer an issue unless they refile. Now you can focus all of your attention back to discovery.

 

Do make sure though that the court has recognized that the plaintiff withdrew the motion. If the plaintiff sent something directly to you and not the court that they withdrew it, follow up with the court. They've been known to pull dumber tricks.

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I received answers to my request for POD's. Basically, they objected to almost everything and sent me the same documents that they have sent me previously with the exception of a letter they claim to have sent me in March 2012 stating that AA purchased my BOA account and that I have 30 days to dispute the validity of the debt (I know I never got that letter). They also stated  that if I would like to discuss a settlement to contact their office before April 15th, rather than proceeding with litigation.

 

I have a couple of questions.  Plaintiff's responses state that Jane Doe is the Paralegal for the Office of General Counsel for AA and makes the following answers and responses to Defendant's Requests for POD's on behalf of Plaintiff, but the signature page is signed and notarized by Joe Black (no title or mention of who he might be)???  Doesn't the person answering the request for POD's have to be the person who signs and notarizes them?

 

When asked to produce the original alleged credit application from BOA with Defendant's signature, they answered that the account was opened in 2005 so the account application is not available.

 

When asked to produce a complete history of the alleged  BOA account evidencing monthly credit and charge statemnts and receipts showing all charges and payments and the balance due establishing the legitimacy of the balance sought, they objected, stating overly broad and unduly burdensome, oppressive and harassing. Additionally, the request seeks documentation that defendant already possesses or has equal asscess to. Objection notwithstanding see statements attached. (they have the last 9 months worth of cc statements).

 

When asked to produce a notarized statement, by a person with original knowledge of the alleged debt, as it was constituted , and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally, they objected stating request is vague, overly broad and unduly burdensome, oppressive and harassing. (But when they filed the MSJ, they attached an affidavit in support of MSJ by an employee of AA stating she had personal knowledge of AA's business records.

 

So I guess I'm wondering since they stated that an original signed application is not available, they have cc statements but can't prove verified use of the account (they did include a copy of a BOA Cardholder Agreement though) and the fact that they objected to the notarized statement by a person with original knowledge, what is the best way to use that to my advantage?

 

I was planning on sending Request for Admissions, but I'm wondering if I should be doing something else like a motion to strike the affidavit or cc statements first? 

 

Again, any thoughts, guidance or suggestions are greatly appreciated.

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The first thing you need to do is make sure you attack their motion for summary judgement against you.   I hate a$$ Acceptance but I can see where your request could be overly broad.   I know what you meant and they know what you meant but you did just make a pretty broad request.  Again, I know where you are going with this but you have to spoon feed those requests to the other side, especially if you are not limited in the amount of requests you can make.

 

You need to be very specific about what you are asking for and if possible narrow down dates.   Just like we do, if there is any defect with your requests at all you are opening the door for them to play dumb and act confused.  

 

I would recommend that you get down to business with finding material facts in dispute where a trier of the facts should order a trial to take place and where reasonable minds would differ as to those material facts which are in dispute.   It's almost a 100% guarantee if you beat their motion for summary judgement you have just beat them.   They don't have the evidence, generally speaking, and even if they can get it they don't want to spend the time and money to get it when they paid three cents on the dollar. 

 

You knock them out on the MSJ and you most likely win this thing going away.   Concentrate on your MSJ right now. 

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Thank you for replying Coltfan 1972. The plaintiff withdrew the MSJ to answer my request for POD's, so as of now, there is not any MSJ.  I have questions on alot of their answers, but I'm really confused also about the person who signed/notarized all of the answers on the POD's - it wasn't the person who said they were answering on behalf of AA. Is that even legal?

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Thank you for replying Coltfan 1972. The plaintiff withdrew the MSJ to answer my request for POD's, so as of now, there is not any MSJ.  I have questions on alot of their answers, but I'm really confused also about the person who signed/notarized all of the answers on the POD's - it wasn't the person who said they were answering on behalf of AA. Is that even legal?

 

Can you send them more discovery requests according to ND rules?  Because, if so, I would be formulating some right now if I were in your shoes.  Don't stand up and whine about how they pulled this crap if you know they're going to send another MSJ.  MTC their asses over any objections that you think and can back up with caselaw that were invalid, then hammer them with new discovery about the BS (if it really is BS,) and watch them whine about how unfair it is.  Keep the pressure on their asses so that they will not have a viable path to an MSJ, poke holes in everything, and then annihilate them. 

 

They'll get the picture.

 

As for the notarized statement, IMO, that was a bad request.  It'd be better to ask them to identify all persons who have original knowledge, and you define original knowledge to mean people who were there at the beginning.  No notarized statements.  No creation of documents.  Just the identities.  Why?  Because they may have a valid argument when you are asking them to produce a new document when they object.  Do they have a valid argument when you ask them to identify the people who set up the account on BofA's end?  Not in any court that is following anything resembling the FRCP.  Then, what happens when they send in a witness claiming to have personal knowledge of the account?  Well, you get the idea, and that's only a start of how you could start hammering them.

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Thank you usagi555, I understand what you are saying and I am getting ready to send RFA's.

 

Couple of questions:  1) I am using BV80's RFA's and it says "Admit that (affiant who signed the affidavit), etc. etc.

                                       Which affiant do I list, the one on the affidavit they sent me first (it was not attached to the summons or

                                       complaint, but mailed later), or the affiant on the affidavit in support of motion for MSJ (remember, they for

                                       now have withdrawn the MSJ - but another one is probably coming)???

 

 

                                   2) I am still confused and nobody has responded to my question about the fact that Elizabeth MacLean,

                                       (I didn't list their real names before, so I probably wasn't real clear), the paralegal from AA responded

                                       and answered my requests for POD's on behalf of plaintiff, but a Kenneth Proctor (no title or explanation

                                       of who he is) signed the last page and was notarized by a C. Nieman in Michigan. The attorney in ND for 

                                        the plaintiff also signed it.

 

                                       Doesn't the person who is responding to answers have to be the person who signs/notarizes it???

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It's probably technically improper for a paralegal for AA to answer discovery, but judges know that the law offices all do this. At best it is "curable," which means all they'd have to do is switch the names. It's the answers that count, not who wrote them up. I'd leave this one alone.

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Thank you usagi555, I understand what you are saying and I am getting ready to send RFA's.

 

Couple of questions:  1) I am using BV80's RFA's and it says "Admit that (affiant who signed the affidavit), etc. etc.

                                       Which affiant do I list, the one on the affidavit they sent me first (it was not attached to the summons or

                                       complaint, but mailed later), or the affiant on the affidavit in support of motion for MSJ (remember, they for

                                       now have withdrawn the MSJ - but another one is probably coming)???

 

 

                                   2) I am still confused and nobody has responded to my question about the fact that Elizabeth MacLean,

                                       (I didn't list their real names before, so I probably wasn't real clear), the paralegal from AA responded

                                       and answered my requests for POD's on behalf of plaintiff, but a Kenneth Proctor (no title or explanation

                                       of who he is) signed the last page and was notarized by a C. Nieman in Michigan. The attorney in ND for 

                                        the plaintiff also signed it.

 

That goes back to the hitting them with new discovery requests.  You want to ask about that, and you also want to start looking at how you can object to anything presented there based on that.  It sounds like they're pulling some schizophrenic litigation tactics on you.  Don't yell and scream about it, hit them with discovery and object.  Very calmly use the rules of civil procedure to object to their idiocy while simultaneously making them explain their idiocy. 

 

Also, document everything, because, should this go on long enough, you may be able to go to a consumer attorney and say "Please sue these guys on my behalf." 

 

 

                                       Doesn't the person who is responding to answers have to be the person who signs/notarizes it???

 

You'll have to go back to your state's rules of civil procedure.  The reason that I'm not going to answer that for you is because then I would have to go back to your states rules, find the answer and then tell you when these rules are something that YOU have to know anyway.  I cannot go into the courtroom with you and I cannot write briefs for you. 

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Their answers to discovery are exactly what AA does in their cases. Their answers were very close to what they answered in my case. I kept hammering. They finally admitted they did not have what I was requesting. So, then they filed an intent to subpoena docs from the OC. (By this time, it had been months since they filed their lawsuit against me, which is when they should have already had the docs.) You notice, they never actually subpoenaed the docs, only filed an INTENT to do that. At first, I thought it was a subpoena (more intimidation tactics). Then I calmed down and actually read what it said. It was shortly after that when I refused to cave, that they dismissed their case. Then I sued THEM!

 

Keep hammerin'!

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Thank you for replies, advice and encouragement. I am going to mail out my RFA's. I followed BV80's RFA's almost exactly,

but there was discussion about them being overkill and since it was posted awhile ago, I would appreciate if they could be

critiqued. Please let me know if you think I should add, delete or change anything. 

 

In the interest of time and space, I am only listing the questions to admit. (the ones that I mail are typed up in the proper format).

 

1. Admit that Plaintiff purchases defaulted debts as a regular course of business.

 

2. Admit that Plaintiff is not the original creditor of the alleged debt which is the subject of this lawsuit.

 

3. Admit that Plaintiff is not an affiliate or subsidiary of BOA.

 

4. Admit that Plaintiff does not now nor has ever originated records for BOA that would be maintained by that

    company in their regular course of business.

 

5. Admit that Plaintiff does not calculate or maintain records for the benefit of BOA.

 

6. Admit that Plaintiff does not have an application for an extension of credit from the Defendant.

 

7. Admit that Plaintiff does not have an application for an extension of credit from the Defendant exhibiting a Signature

    from the Defendant.

 

8. Admit that Plaintiff does not have access to all of the records created and maintained by BOA  that pertain

    to the alleged account that is the subject of this lawsuit.

 

9. Admit that Plaintiff has submitted all documentation in Plaintiff's possession related to the alleged debt which is the

    subject of this lawsuit.

 

10. Admit that Plaintiff did not originate the account statements submitted into evidence.

 

11. Admit that Plaintiff did not calculate and maintain the account statements while they were in the possession of BOA.

 

12. Admit that Plaintiff does not have personal knowledge of the accounting methods of BOA.

 

13. Admit that Plaintiff does not have perssonal knowledge of the record keeping methods of BOA.

 

14. Admit that Affiant, Amber Bialkowski is employed by AA.

 

15. Admit that Affiant is not an employee of BOA. #should I list her na#e every time??? or just state Affiant???#

 

16# Admit that Affiant has never been employed by BOA#

 

17# Admit that Affiant is not now nor has ever been involved in the creation of any records originated by BOA#

 

18# Admit that Affiant was not involved in the creation of the BOA credit card statements#

 

19# Admit that Affiant was not involved in the maintenance of the account statements while they were allegedly in

      the possession of BOA#

 

20# Admit that Affiant does not have personal knowledge of the creation of records, record keeping methods, or

      maintenance of records  of BOA#

 

21# Admit that Affiant does not have access to records created and maintained in the regular course of business of

      BOA while such records are in the possession of that company#

 

22# Admit that Affiant never had access to the submitted account statements while they were allegedly in the possession

      of BOA#

 

23# Admit that Affiant cannot attest to the accuracy of the account statements submitted into evidence by Plaintiff#

 

24# Admit that Affiant cannot attest to the authenticity of the account statements submitted into evidence by Plaintiff#

 

25# Admit that Affiant cannot attest that the account statements were maintained by a person with personal knowledge

      of the alleged account while the statements were allegedly in the possession of BOA#

 

26# Admit that Plaintiff cannot prove accuracy of the account statements submitted into evidence#

 

27# Admit that Plaintiff cannot prove the authenticity of the account statements submited into evidence#

 

28# Admit that Plaintiff cannot prove the account statements were maintained by a person with personal knowledge

      of the alleged account before allegedly being acquired by Plaintiff#

 

29# Admit that the Bill of Sale from BOA to Plaintiff does not reference the na#e of the Defendant#

 

30# Admit that the Bill of Sale from BOA to Plaintiff does not reference the account number of the alleged debt that is

      the subject of this lawsuit.

 

 

I have an unlimited amount of discovery requests. I would like to get these mailed out today, so any thoughts will

be greatly appreciated.

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All you need is an admission for each item they did not give you in production of documents. This other stuff won't help you much. You do not have an "unlimited" amount of discovery you can send. You torture someboidy with unnecessary, repetitive, or objectionable discovery and they will get an order of protection against you.

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Personally I think the admissions are fine. I gave Asset a similar list in my case, they answered every single one with no objections.

 

 

 

#should I list her na#e every time??? or just state Affiant???#

 

I would, unless you define whom the affiant is in a definition paragraph/preamble. 

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Ok, so per Bruno's suggestion, I basically condensed the earlier version and am trying

not to be repetetive or ask anything unnecessary but get them to admit that the documents

they have provided are a bunch of crap and not credible.

 

Before I started this pro se process, I thought that I was a fairly intelligent person, but

I'm really having serious doubts now! I am really trying to learn, understand and apply

what everyone is suggesting, but I guess I'm not always comprehending! I for sure do

not really understand the Rules of ND Civil Procedure - and do not for sure always know

what to attack, much less know how to attack it!  Urrrgggh!

 

So here is the revised version - let me know what thoughts are again. Thanks all again

for your help - I appreciate it!

 

REQUEST FOR ADMISSIONS

  1. Admit that Plaintiff purchases defaulted debts as a regular course of business.

 

           ANSWER:

 

  1. Admit that Plaintiff is not the original creditor of the alleged debt which is the subject of this lawsuit.

 

ANSWER:

     

  1. Admit that Plaintiff is not an affiliate or subsidiary of Bank of America.

 

ANSWER:

 

  1. Admit that Plaintiff does not now nor has ever originated records for Bank of America that would be maintained by that company in their regular course of business.

 

ANSWER:

 

 

  1. Admit that Plaintiff does not calculate or maintain records for the benefit of Bank of America.

 

ANSWER:

 

  1. Admit that Plaintiff does not have an application for an extension of credit from the Defendant.

 

ANSWER:

 

  1. Admit that Plaintiff does not have an application for an extension of credit from the Defendant exhibiting a Signature from the Defendant.

 

ANSWER:

 

  1. Admit that Plaintiff does not have access to all of the records created and maintained by Bank of America that pertain to the alleged account that is the subject of this lawsuit.

 

ANSWER:

 

  1. Admit that Plaintiff has submitted all documentation in Plaintiff’s possession related to the alleged debt which is the subject of this lawsuit.

 

ANSWER:

 

  1. Admit that Plaintiff did not originate the account statements submitted into       

evidence.

 

ANSWER:

 

      11.  Admit that Plaintiff did not calculate and maintain the account statements

             while they were in the possession of Bank of America.

 

             ANSWER:

 

      12.  Admit that Plaintiff does not have personal knowledge of the accounting

             or record keeping methods of Bank of America.

 

             ANSWER:

                                     

  1. Admit that Affiant, Amber Bialkowski is employed by Asset Acceptance, LLC.

 

ANSWER:

  1. Admit that Affiant, Amber Bialkowski is not an employee of Bank of America.

 

ANSWER:

 

      15.  Admit that Affiant, Amber Bialkowski has never been employed by Bank of

             America.

 

            ANSWER:

 

      16.  Admit that Affiant, Amber Bialkowski does not have personal knowledge of

             the creation of records, record keeping methods, or maintenance of records

             of Bank of America.

 

             ANSWER:

 

      17.  Admit that Affiant, Amber Bialkowski does not have access to records created

             and maintained in the regular course of business of Bank of America while

             such records are in the possession of that company.

 

            ANSWER:

 

      18.  Admit that Affiant, Amber Bialkowski never had access to the submitted account

             statements while they were allegedly in the possession of Bank of America.

 

            ANSWER:

 

      19.  Admit that Affiant, Amber Bialkowski cannot attest to the accuracy or 

             authenticity of the account statements submitted into evidence.

 

             ANSWER:

 

      20.  Admit that Plaintiff cannot prove the accuracy or authenticity of the account

             statements  submitted into evidence.

 

             ANSWER:

 

      21.  Admit that Plaintiff cannot prove the account statements were maintained

             by a person with personal knowledge of the alleged account before allegedly

             being acquired by the Plaintiff.

 

             ANSWER:

 

      22.  Admit that the Bill of Sale from Bank of America to Plaintiff does not reference

             the name of the Defendant or an account number of the alleged debt that is the

             subject of this lawsuit.

 

            ANSWER:

 

      23.  Admit that the Plaintiff does not have proof of service by mail of any letter(s)

             sent to the Defendant demonstrating an attempt to collect on the alleged debt

             prior to the service of summons and complaint. 

 

             ANSWER:

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OK. This one.

 

 

  1. Admit that Plaintiff did not originate the account statements submitted into evidence.  Nothing is in evidence yet. Say what they were sent with. EX: "...account statements submitted by plaintiff in response to defendant's request for documents( or with the complaint or whatever they sent them with).

Also, you always want to have one particularly damning admission. Why? If they don't respond they can be deemed admitted. So, if the last admission is something like:

 

Admit plaintiff is not the legal owner of the debt that is the subject of this lawsuit.

 

If they don't respond to these and you get them deemed admitted, their case is destroyed. I have seen cases where admissions were deemed admitted and it didn't completely take the plaintiff's case away. You only need one.

 

:)%

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