SQLguy

Need Assistance Asset Acceptance /Johnson Mark

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I'm starting this thread as mainly a sanity check and to ask questions. I've dealt with Johnson Mark before, however it was several years ago. In that case the amount was so small that once I answered and started discovery I think they decided it was more trouble than it was worth. In that specific cases I threw the laundry list of Affirmative Defenses at them  (23 total) From what I have been reading over the past few days, it sounds like that probably isn't the best way to go. My main concern right now is making sure that I don't hang myself with any affirmative defenses. Thanks in advance for the help.

 

 

 

 1. Who is the named plaintiff in the suit? Asset Acceptance


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

3. How much are you being sued for? ~$1600.00

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

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

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

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in? Utah, Salt Lake

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

11. What is the SOL on the debt? To find out: 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). Suit Served. Too early to confirm it has actually been filed.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

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. No

15. How long do you have to respond to the suit? 20 Days from service on 3/21 Will post the full summons below.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Nothing

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Here is the summons. Please excuse the formatting. It get mangled when converting from the PDF scan. I've also included my proposed answers in bold

 

 

 
JOHNSON MARK LLC
Attorneys for Plaintiff PO Box 7811
Sandy, UT 84091
Tel 801-285-5700
Fax 801-285-5701 
 
THIRD JUDICIAL DISTRICT COURT, STATE OF UTAH
SALT LAKE COUNTY, SALT LAKE CITY DEPARTMENT
ASSET ACCEPTANCE, LLC,
 
Plaintiff,
 
vs.
 
SQLGuy,
 
 
Defendant.
 
SUMMONS Judge: 
 
Case No.
 
 
THE STATE OF UTAH TO THE ABOVE-NAMED DEFENDANT:
You are summoned and required to answer the attached Complaint. Within 20 days after service of this summons, you must file your written answer with the clerk of the court at the following address: 450 S STATE ST SALT LAKE CITY, UT 84111 and you must mail or deliver a copy to Plaintiffs Attorney at the address listed above. If you fail to do so, judgment by default may be taken against you for the relief demanded in the Complaint. The Complaint is attached hereto.
This action is commenced under Rule 3(a)(2) and therefore you need not answer the complaint if it is not filed within 10 business days of service upon you. You may contact the clerk of the court at: 801-238-7300 at least 13 days after you have been served with the complaint to determine whether or not the complaint has been filed with the Court.
If in fact a Complaint has been filed within 10 business days after service, you must file an answer to the Complaint within 20 days after it was served upon you. Otherwise, a default judgment may be entered against you for the relief demanded in the Complaint. The relief demanded is as prayed for in the attached Complaint and said Complaint is hereby served upon you.
 
 
DATED: February 1, 2013
 
This communication is from a debt collector. If you wish to resolve this matter please call Johnson Mark at 801-285-5795. Reference# <Removed>
 
JOHNSON MARK LLC
Attorneys for Plaintiff PO Box 7811
Sandy, UT 84091
Tel 801-285-5700
Fax 801-285-5701
 
THIRD JUDICIAL DISTRICT COURT, STATE OF UTAH SALT LAKE COUNTY, SALT LAKE CITY DEPARTMENT
 
ASSET ACCEPTANCE, LLC, Plaintiff,
 
vs.
 
SQLGuy, Defendant. 
 
CLAIMS:
 
1. Defendant resides in this county and/or signed the contract giving rise to this action in this county. Jurisdiction and venue are proper in this court.

 Defendant resides in this county. Defendant admits jurisdiction and venue are proper. Defendant Lacks sufficient information to answer all other statements in  paragraph 1 and therefore denies all other information in paragraph 1 Defendant leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

 

 
 
2. Defendant entered into a contract with DELL FINANCIAL SERVICES/CIT ONLINE BANK opening an account ending in XXXXXXXXXXXXXXXXXXX, which contract was subsequently assigned to Plaintiff.

Lacks sufficient information to answer paragraph 2 and therefore denies paragraph 2. Defendant leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

 
3. Defendant has defaulted on the obligation under the contract.
Lacks sufficient information to answer paragraph 3 and therefore denies paragraph 3. Defendant leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.
 
4. The amount due and owing to the Plaintiff is $1600.07 plus accrued interest of $83.00 as of February 1, 2013, at the rate of 10.00% per annum less any payments made. In addition, Plaintiff is entitled to recover interest from February 1, 2013, until the date all amounts due are paid.
Lacks sufficient information to answer paragraph 4 and therefore denies paragraph 4. Defendant leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.
 
5. Plaintiff may be entitled to recover a reasonable attorney's fees as provided in the contract. In the event Defendant fails to respond to this Complaint, and default is entered, Plaintiff
may seek attorney's fees in the amount of $325.00 pursuant to U.R.C.P. 73. Said fees will not be shared in violation of Rule of Professional Conduct 5.4.

Pursuant to U.R.C.P. 73, Plaintiff must state the basis for such fees and attach a copy of the contract authorizing the award.  Plaintiff has neither stated the basis nor attached said contract. Defendant therefore denies

 
6. The Plaintiff may also be entitled to additional attorney's fees for post-judgment services rendered in accordance with applicable law.
This request calls for admission of matter defendant has denied and thus it is improper. Defendant therefore denies.
 
7. Further, equity requires Defendant to pay the value of the benefits received. 
This request calls for admission of matter defendant has denied and thus it is improper. Defendant therefore denies.
 
DEMAND: Plaintiff requests judgment as follows:
 
A. For damages in the amount of $1600.00 plus accrued interest of $83.00 as of February 1, 2013, at the rate of 10.00% per annum less any payments made;
B. For additional interest from February 1, 2013 until amounts dues are paid at the rate of 10.00% per annum;
C. For reasonable attorney's fees (if any) in the amount of $325.00 pursuant to U.R.C.P. 73;
D. For post-judgment attorney's fees in accordance with applicable law;
E. For costs of court both prejudgment and post-judgment; and
F. Any other relief as the court deems just and equitable.
 
 

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Ok All,

 

I would appreciate any feedback on the answers I listed above. I also need suggestions on Affirmative Defenses.

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In my state, if you deny an allegation, you must state the substance behind your denial.

I'm not familiar with Utah's civil procedure but, make sure that your rules don't undermine your denials.

 

As for affirmative defenses ......... unless you know that they are applicable, and you know how to prove them (they are yours to prove if challenged) most posters say not to use any.  Again, consult your rules; they usually dictate if, when, and what defenses you may use.

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Here is the rule regarding denials

 

URCP Rule 8 (B)Defenses; form of denials. A party shall state in simple, short and plain terms any defenses to each claim asserted and shall admit or deny the statements in the claim. A party without knowledge or information sufficient to form a belief about the truth of a statement shall so state, and this has the effect of a denial. Denials shall fairly meet the substance of the statements denied. A party may deny all of the statements in a claim by general denial. A party may specify the statement or part of a statement that is admitted and deny the rest. A party may specify the statement or part of a statement that is denied and admit the rest.

 

So I'm pretty sure the denials are ok. The only ones I am slightly concerned about are 5,6, and 7.

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 Defendant demands strict proof thereof.
 

 

You don't need this, I would remove it. As for 5 and 6, I would answer this way: Attorney's fees are not within the purvey of defendant's scope of knowledge. Any such award is only within the authority of the Court. Therefore, defendant has no response to this claim, which calls for a legal conclusion.

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Here is the rule regarding denials

 

URCP Rule 8 ( B)Defenses; form of denials. A party shall state in simple, short and plain terms any defenses to each claim asserted and shall admit or deny the statements in the claim. A party without knowledge or information sufficient to form a belief about the truth of a statement shall so state, and this has the effect of a denial. Denials shall fairly meet the substance of the statements denied. A party may deny all of the statements in a claim by general denial. A party may specify the statement or part of a statement that is admitted and deny the rest. A party may specify the statement or part of a statement that is denied and admit the rest.

 

So I'm pretty sure the denials are ok. The only ones I am slightly concerned about are 5,6, and 7.

 

This statement (bold, underlined) is almost word for word the way that my state's rule reads.

I interpret this to mean that you must give a reason as to why you deny the allegation.

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I think he's okay, he gave some basic reasons. I doubt any JDB attorney is going to ask for a revision on an answer. usually they save that for discovery.

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But the very next sentence says one may generally deny all the statements. If one must give a reason, they would be unable to generally deny the statements. I'm with Bruno. I believe he is okay. A simple Deny or Admit will suffice.

 

Less is generally more. In #1 a simple "Admit I live in this county" would work here in FL.

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I bow to your superior knowledge ......... both of you.

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Thanks all. I do have a question about standing. Would that be considered the same as Failure to state a claim upon which relief can be granted. My states rules only allow certian defenses to be asserted after the answer and I want to make sure that if I do decided to include any defenses, I know if those are the same thing.

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They are not the same.

 

Standing give your opponent the legal right to bring suit against you. In your case it would be a legally sufficient proof of ownership of your account.

 

Failure to state a claim involves the insufficiency of their complaint and is mainly procedural in nature. They may even be allowed to amend their complaint to remedy. A somewhat shortened definition of 'Failure ...' would be "Given the 'facts' of their complaint and even if taken as true, would not indicate that your opponent is entitled to any legal remedy".

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Got it! So from what I've been reading in other threads, Standing is more of a basic legal principal and not really appropriate as an Affirmative Defense. It can really be argued after discovery and at trial.Where Failure to State a Claim is an Affirmative Defense but one that (depending on your states rules) does not have to be invoked right away and may actually be better left until after discovery. Correct?

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You're correct about standing ........ and if challenged has to be proved as it is the basic tenet that allows them to sue you.

No need to claim as an affirmative defense as it cannot be waived.

 

Failure is an affirmative defense but is rarely used in consumer litigation. They have all the elements in the complaint they filed against you to state a claim.

Now they have to prove it .........

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They just admitted one thing in their complaint, they do not have the contract, so they are using Utah's usuary statute, which is 10%. Cit Bank is a state chartered bank of Utah.

 

With Dell...there should be 4 parties at a minimum in the chain of assignment, Cit Bank to Dell Revolver, Dell Revolver to Dell Financial Services, Dell FInancial to AA.

 

In the bills of sale, their should be an affidavit from a Erin Lea Townsley...you will find the affidavit was created in New York, but is usually notarized in Texas.

 

Force them to produce the contract, since the only cause of action is a breach of contract claim. The contract will state a different interest rate than the statutory rate of 10%

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They just admitted one thing in their complaint, they do not have the contract, so they are using Utah's usuary statute, which is 10%. Cit Bank is a state chartered bank of Utah.

 

With Dell...there should be 4 parties at a minimum in the chain of assignment, Cit Bank to Dell Revolver, Dell Revolver to Dell Financial Services, Dell FInancial to AA.

 

In the bills of sale, their should be an affidavit from a Erin Lea Townsley...you will find the affidavit was created in New York, but is usually notarized in Texas.

 

Force them to produce the contract, since the only cause of action is a breach of contract claim. The contract will state a different interest rate than the statutory rate of 10%

Thanks!!!! That was a good observation and this is some great info.

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I don't see anything in the complaint where they admit to not having a contract. In fact, they mention the contract several times. There are a lot of convoluted ins and outs with Dell and the way they finance this stuff, they use a bunch of different lenders. In this case they picked a lender who is chartered in Utah and owned by a company in New York. Depending on whether or not this outfit is considered a National Bank, which I don't think it is, the interest rate they charge on the account would fall under Utah law. Lots of these credit card companies etc locate in Utah because they can charge whatever they want.

 

15-1-1.   Interest rates -- Contracted rate -- Legal rate.

            (1) The parties to a lawful contract may agree upon any rate of interest for the loan or forbearance of any money, goods, or chose in action that is the subject of their contract.

 

They are claiming to have a contract, and if they do, I bet it will say what they can charge. The interest being applied now is judment interest, that is different. That is what the state gives them after the account is charged off and they are litigating. It would continue if they get a judgment. I would ask for the contract to which they refer in the Complaint.

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Thanks for all the feedback everyone. Here is my final draft for my answer. Any feedback is appreciated, especially as it relates to the Affirmative Defenses and Counterclaim.

 

 

 

 

 

In the District Court of Utah

Third Judicial District Salt Lake County

 Salt Lake City Department

450 S State Street Salt Lake City Utah, 84111

ASSET ACCEPTANCE, LLC,

Plaintiff,

v.

SQLGuy

Defendant

ANSWER

Case Number ___________________

Judge  _________________________

Commissioner ___________________

 

 

I. ANSWER

 

Defendant, appearing pro se, for its reply to the Complaint of Asset Accepance, LLC, (thereafter "Asset Acceptance") states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein

 

 

In answer to the specific allegations of the complaint, defendant A admits, denies and otherwise alleges as follows:

 

1. Defendant resides in this county. Defendant admits jurisdiction and venue are

 

proper. Defendant Lacks sufficient information to answer all other statements in

 

paragraph 1 and therefore denies all other information in paragraph 1. Defendant

 

leaves the Plaintiff to provide proof.

 

2. Lacks sufficient information to answer paragraph 2 and therefore denies

 

paragraph 2. Defendant leaves the Plaintiff to provide proof.

 

3. Lacks sufficient information to answer paragraph 3 and therefore denies

 

paragraph 3. Defendant leaves the Plaintiff to provide proof.

 

4. Lacks sufficient information to answer paragraph 4 and therefore denies

 

paragraph 4. Defendant leaves the Plaintiff to provide proof.

 

5. Attorney's fees are not within the purvey of defendant's scope of knowledge. Any such award is only within the authority of the Court. Therefore, defendant has no response to this claim, which calls for a legal conclusion. To the extent the court requires a response, Defendant Denies paragraph 5

6. Attorney's fees are not within the purvey of defendant's scope of knowledge. Any such award is only within the authority of the Court. Therefore, defendant has no response to this claim, which calls for a legal conclusion. To the extent the court requires a response, Defendant Denies paragraph 5

7. This request calls for admission of matter defendant has denied and thus it is improper. Defendant therefore denies.

 

 

DEFENSES

 

First Affirmative Defense

Plaintiff has failed to provide a copy of the alleged contract and a default has not been entered. Therefore Plaintiff is not entitled to attorney’s fees.

Second Affirmative Defense

Defendant claims Lack of Privity as Defendant has never entered into any      contractual or debtor/creditor arrangements with the Plaintiff.

 

Third Affirmative Defense

Plaintiff's Complaint violates the statute of Frauds as the purported contract or           agreement falls within a class of contracts or agreements required to be in writing.   The purported contract or agreement alleged in the Complaint is not in writing and    signed by the Defendant or by some other person authorized by the Defendant and             who was to answer for the alleged debt, default or miscarriage of another person.

 

Fourth Affirmative Defense

Plaintiff's Complaint fails to allege a valid assignment and there are no averments as           to the nature of the purported assignment or evidence of valuable consideration.

 

Fifth Affirmative Defense

Plaintiff's complaint fails to allege whether or not the purported assignment was        partial or complete and there is no evidence that the purported assignment was       bona fide.

 

Sixth Affirmative Defense

Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this       action or that the Assignor has conveyed all rights and control to the Plaintiff. The     record does not disclose this information and it cannot be assumed without creating          an unfair prejudice against the Defendant .

 

Seventh Affirmative Defense

The Plaintiff is not an Assignee for the purported agreement and no evidence           appears in the record to support any related assumptions.

 

 

Eight Affirmative Defense

Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the          Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a   dishonest or fraudulent manner with respect to the dispute at issue in this case.

 

Ninth Affirmative Defense

Plaintiff has failed to show an unbroken chain of title and custody of same.

 

Tenth Affirmative Defense

Plaintiff has no Fiduciary Duty.

 

Eleventh Affirmative Defense

Plaintiff has failed to show how all alleged calculations have been made on alleged            debt from a $0 balance to present date.

 

Twelfth Affirmative Defense

Defendant alleges that the granting of the Plaintiff's demand in the Complaint would           result in Unjust Enrichment as the Plaintiff would receive more money than plaintiff is      entitled to receive.

 

Thirteenth Affirmative Defense

Plaintiff's alleged damages are the result of acts or omissions committed by non-       parties to this action over whom the Defendant has no responsibility or control.

 

Fourteenth Affirmative Defense

Plaintiff's alleged damages are the results of acts or omissions committed by the       Plaintiff.

 

Fifteenth Affirmative Defense

Plaintiff's alleged damages are limited to real or actual damages only.

 

Sixteenth Affirmative Defense

       Defendant reserves the right to submit counterclaims that may become           applicable and/or available at a later time, (for example, if a real party in interest           is established for alleged account) including, but not limited to, violations of the     Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair             Credit Reporting Act.

 

II. COUNTERCLAIM

Defendant  counterclaims against plaintiff as follows:

 

1. Defendant resides in Salt Lake County, Utah and is a consumer as that term is defined by the Fair Debt Collection Practices Act 15 USC 1692 et seq ( “FDCPA”)

 2. Upon information and belief, ASSET ACCEPTANCE, LLC. is a foreign limited liability Company authorized to do business in Utah; that ASSET ACCEPTANCE’s principal business is the collection of debts from others; that ASSETACCEPTANCE regularly collects debts; that ASSET ACCEPTANCE uses the instruments of interstate commerce and the mail to collect debts

 3.  ASSET ACCEPTANCE and its agent JOHNSON MARK LLC are “debt collectors” as the term is defined by the FDCPA.

 4.  ASSET ACCEPTANCE and its agent JOHNSON MARK LLC have violated FDCPA by pleading fixed attorney fees without proper documentation or basis for such fees; Brown v. Constantino et al.

 

CONCLUSION

 

1.  WHEREFORE, the Defendant asks for the Court for judgment as follows:

 

A. Dismiss Plaintiff's complaint with prejudice.

B. Order Plaintiff to cease all collection activities on alleged contract.

C. Order Plaintiff to remove item(s) from Defendant's credit profile.

D. In favor or Defendant's counterclaim

E. For statutory damages in an amount up to $1000 per 15 USC 1692k,

F. Costs and disbursements of this action,

G. Such other and different relief as the Court finds proper.

 

         

 

 

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This probably isn't what you want to hear, but this thing you wrote up is a mess. 16 out 17 defenses you listed are either not vaild defenses, or they do not apply in credit card cases. The only one that stands a chance is standing to sue via ownership of the debt, and this early on that would be speculative because you haven't conducted discovery and have no idea whether they can prove standing or not. The counterclaim also has no merit, requesting attorney's fees in a prayer for relief is standard stuff. The court gets to decide what they get. They even acknowledged this by citing the statute. This is not an FDCPA violation.....it would only be a violation if they added what they felt they were entitled to into the balance of the debt.

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Thanks Bruno. So what would you suggest then? It sounds like you are advocating just dumping the defenses altogether? My basis for the counterclaim was from this thread  which is pretty much the same exact situation for me. I'm not married to it and really have no problem dumping it. 

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You need to ditch every one of those affirmative defenses. Affirmative Defenses are specific defenses that a defendant can prove themselves and does not mean you are defenseless if you do not raise it. Even if you are only able to prove it after discovery the Discovery Rule in Utah allows you plead it at or near the time you have discovered the true facts. Brown has nothing to do with Attorney Fees but rather Attorney liability under the UCSPA for acts during litigation. They invoked Rule 73 which allows them to get that amount of fees *if they get a default*. If they did not list the Rule 73 fee and the case was a default, they could collect no fee.

 

IMPORTANT NOTE: Rule 26 has been amended, read it carefully, understand it and read some of my other recent posts where I have commented on this. If they do not send you certain items within 7 days of receiving your answer, they can never use them in court. Wait patiently for them to blow off the disclosure requirements and they will screw themselves over without you having to do a thing.

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Thanks for the input KentWA and Bruno. I will go ahead and dump the defenses and counterclaim. I've been over Rule 26 quite a bit as it's a huge change from the last time I was involved with something like this. I've been pouring over your posts as you seem to the the resident expert for Utah specifics

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One other quick question. After my last denial I've switched my Defenses section to the following.

 

 

Defenses

Defendant has no additional defenses at this time. Defendant reserves the right to add additional defenses as they are discovered during Discovery.

 

Does that work? 

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I'm mailing off my answer today. I took out all of the affirmative defenses and added the line I previously posted. I also added a similar line relating to counterclaims  along with this line

 

 

Relief

Defendant prays this case be dismissed with prejudice along with any further relief the

court deems just and proper. Further the defendant sayeth not.

 

Is there anything else I need?

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I disgree with your interpretation of that thread. It may not conform to state statutory requirements, but I don't see the stretch making it a false or misleading statement. They are simply asking for court awarded attorney's fees which are provided for in any credit card agreement. If they worded the complaint properly and incorporated all previous paragraphs, one of which would refer to the agreement, they covered themselves. It's so weak it isn't worth pursuing. Just answer, lose the canned defenses and the bad counterclaim. If you get them on a legit FDCPA violation, any good consumer attorney will take your case at no cost to you.

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