frosted1

Asset Acceptance going for the jugular. Need Help!!

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Formal Discovery time has lapsed.  The opposing counsel has asked for an extension of time, but that motion has not been ruled upon yet.  That's why I was asking for recommendations of best approach.  

 

Any suggestions would be appreciated!

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Help!  I'm at a crossroads here.

 

To this date, I've never received any written documentation from the Plaintiff regarding dates of last payment, charge-off date, nor charge-off amount.  Is the JDB required to notify me of these items or not?  The opposing attorney did mention a date during our conversation at the pre-trial conference, while reviewing the documentation in his file, but has never sent me anything documenting it.

 

I'm in Utah, (Utah being a "Choice of Law" state), Bank of America is the OC and is chartered in Delaware.  I would be claiming Delaware as the forum governing the SOL issue.   My question is do I now state the citations and lay out the full defense in an Amended Answer or just state that I'm claiming SOL as an affirmative defense and/or counter-claim?  Or do I wait to present the issue to the judge directly?

 

Is it best to send a Meet and Confer requesting verification of the dates of last payment and charge-off before or after sending an Amended Answer?   Or just send the Amended Answer and see what response I get?  I know I asked these questions once before, but did not get a response as to proper procedure.

 

I do want to be procedurally correct, because I know that's a big issue in Utah.

 

Thank you, in advance, for any and all help!!!!!

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Kent has said he would not use it in the amended answer, but rather raise it later, stating the hid it from you ( read back through your thread, what he said about that is in there)

If they ever get around to ruling on the discovery motion, I would have specific requests all ready to go so you can serve them on them. Like the complete Bo's with the larger document. (Forward flow) and the complete cc agreement. All billing statements that shows a zero balance to present, that shows how they arrived at the amount in the complaint, etc.

Did you ever get your credit report? Does it show the b of a on there with the date of last payment? You could work on a motion in limine about the whole sol thing in case it is something your going to raise. If you get more discovery time you will specifically ask when it was, but if you don't, using anything like your bank statements, or credit report as evidence will make you admit the debt, and if the judge does not rule in your favor, your only recourse would be the lack of standing. You wouldn't have to admit the debt if they send you the date of last payment. Make sense?

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Thanks for your help Shellieh98,

 

Just so I understand this correctly, hold off on the Amended Answer.  Should I go ahead and send the Meet and Confer and just ask for the BOS info requesting the forward flow, the complete CC agreement and the billing statements?  In one of the posts KentWA sent, he said to refer to Utah's Doctrine of Completeness and Rules of Evidence 106.   Here is my Meet & Confer letter. Is this sufficient or are there changes that need to be made?  I'm open to suggestions here.

 

 

Meet and Confer

Date

Asset Acceptance LLC  vs  Defendant, Pro Se

Re: Case # xxxxxxxxxx/JMAcct #xxxxxxxx

Dear Mr. JDB Attorney

 

Prior to receiving your summons/complaint in (Date) I responded to two separate letters, requesting validation of this alleged debt.  I am now writing in regards to your Initial Disclosures for case #xxxxxxxxx, received by the Defendant on (Date). Upon review of these disclosures, Defendant has significant concerns regarding the accuracy and completeness of these disclosures. Defendant’s concerns are outlined below.

1.      Exhibit C submitted by Plaintiff in Plaintiff’s Initial Disclosures is a copy of an incomplete Bill of Sale from FIA Card Services to Asset Acceptance LLC.  This document is inadmissible in a partial state and must be disclosed in its entirety as well as providing authentication from the Original Creditor. 

 

Regarding the Original Creditor, in all of your preceding communications, you stated Bank of America to be the Original Creditor.  This Bill of Sale, given as  Exhibit C, refers to a sale between FIA Card Services and Asset Acceptance LLC.  Defendant is not sure where FIA Card Services enters in?  FIA Services is a wholly owned subsidiary of Bank of America. Defendant requests an Original Creditor affidavit of the relationship with and how FIA Card Services came to own the alleged account.  Defendant requires a copy of the Assignment agreement between Bank of America and FIA Card Services and Bank of America and Asset Acceptance LLC.  Please provide Defendant with the proper documents proving said Assignments, with all attachments, exhibits and appendixes.   In Utah, the Doctrine of Completeness and Rules of Evidence 106 requires you to do so.

 

           

       2. The Bank of America Cardholder Agreement submitted is also an incomplete document and has no authentication as belonging to the above-referenced alleged account.  What is the source of this alleged Terms and Conditions?  Again, a document is inadmissible in a partial state and without proper authentication.  Please produce a complete document providing proper authentication from the Original Creditor and the relationship to said alleged account.                                                                                            

 

      3.  It wasn’t until the June hearing that, inadvertently, counsel advised Defendant of date of last payment when he stated during discussions that he thought the date of last payment was October, 2009. Plaintiff needs to explicitly produce documentation defining said date of last payment, balance of account at that time, along with charge-off date and amount of said charge-off, or defendant shall file a motion with the court with the assumption that plaintiff is hiding date of last payment to avoid Statute of Limitation Issues and seek sanctions for Discovery misconduct.

           

        4.  In your Computation of Damages you’re claiming on this alleged account, you stated that supporting documentation is attached, yet nothing was attached.  Nothing has been received by Defendant that gave any support to your claim for damages.  There was nothing sent from the Original Creditor’s files pertaining to the alleged account; no statements, no verification of account balances, no itemization as to what was purchased, no payments received, no cash transfers, no interest or fees, no credits or adjustments made.  Just your Computation that was prepared by you without any validation from the Original Creditor.  Would you please provide the documents you claimed to have sent in your Initial Disclosures.

 

       5.  Plaintiff's Witness 1 Asset Acceptance LLC:

Plaintiff lists Asset Acceptance LLC as a Fact Witness or an individual that may have discoverable information. 

A.  URCP 26 states that Initial Disclosures should disclose

            (a)(1)(A) the name and, if known, the address and telephone number of:

            (a)(1)(A)(i) each individual likely to have discoverable information supporting its claims or defenses, unless solely for impeachment, identifying the subjects of the information; and


            (a)(1)(A)(ii) each fact witness the party may call in its case-in-chief and, except for an adverse party, a summary of the expected testimony;

As Asset Acceptance LLC is not an individual, this disclosure is incomplete and improper. Additionally since it appears that Elizabeth Gamache appears to be an employee of Asset Acceptance and is specifically named as a witness, it is not unreasonable to expect the individual names of all currently known employees of Asset Acceptance that are fact witnesses, may be called to testify, or that are likely to have discoverable information. Plaintiff holds all rights to the account from the original credit issuer and is entitled to recover the balance due on the account.

Defendant asserts that this witness cannot possibly testify to these items as the witness a listed is a business entity and not an individual. Additionally any employee of Asset Acceptance is not an employee of the original credit issuer and cannot possibly have personal or first-hand knowledge of the alleged original account as would be required to testify regarding these points. 

B.  Plaintiff indicates that this witness will testify regarding the following information:

Defendant applied for a credit account.  At the time the account was opened, Defendant was provided with an agreement setting forth the terms and conditions of the contract between the parties. Defendant accepted and used the credit account and thereby assented to all terms of the agreement. Defendant agreed to make periodic payments whenever there was a balance due on the account. Periodic statements were sent to the Defendant reflecting transactions, interest rate, charges, or fees. Defendant failed to pay according to the terms and conditions on the credit account or as required by equity.

 

Plaintiff's Witness 2, Original Creditor:  Bank of America

Plaintiff lists Bank of America as a Fact Witness or an individual that may have discoverable information. 

A.URCP 26 states that Initial Disclosures should disclose

(a)(1)(A) the name and, if known, the address and telephone number of:

(a)(1)(A)(i) each individual likely to have discoverable information supporting its claims or defenses, unless solely for impeachment, identifying the subjects of the information; and


(a)(1)(A)(ii) each fact witness the party may call in its case-in-chief and, except for an adverse party, a summary of the expected testimony;

As Bank of America is not an individual, this disclosure is incomplete and improper. It is not unreasonable to expect the individual names of all currently known employees of Bank of America that are fact witnesses, may be called to testify, or that are likely to have discoverable information. 

Plaintiff's Witness 3 Elizabeth Gamache:

A: Plaintiff indicates that this witness will testify regarding the following information:  Defendant applied for a credit account. At the time the account was opened, Defendant was provided with an agreement setting forth the terms and conditions of the contract between the parties. Defendant accepted and used the credit account and thereby assented to all terms of the agreement. Defendant agreed to make periodic payments whenever there was a balance due on the account. Periodic statements were sent to the Defendant reflecting transactions, interest rate, charges, or fees. Defendant failed to pay according to the terms and conditions on the credit account or as required by equity. Plaintiff holds all rights to the account from the original credit issuer and is entitled to recover the balance due on the account.

Defendant asserts that this witness cannot possibly testify to these items as the witness is not an employee of the original credit issuer and cannot possibly have personal or first-hand knowledge of the alleged original account as would be required to testify regarding these points. 

Defendant requests that that the Plaintiff supplement their Initial Disclosures with the following information. Defendant requests delivery of this information within 10 days of the date of this letter. Please note that this letter does not replace Defendants right to standard fact discovery and is simply an attempt to cure the deficiencies in the Plaintiff's disclosures.

The individual name, and if known, address and phone number of any currently known Asset Acceptance employees that are fact witnesses, may be called to testify, or that are likely to have discoverable information. If there are no additional known individuals at this time, Defendant requests that Plaintiff state as such.

2. The individual name, and if known, address and phone number of any currently known Bank of America employees that are fact witnesses, may be called to testify, or that are likely to have discoverable information. If there are no known individuals at this time, Defendant requests that Plaintiff state as such.

3. An accurate summary of expected testimony expected from Plaintiff's Witness 3 Elizabeth Gamache.  Please list her qualifications.  What is her title within the company above. 


4. An accurate summary of expected testimony for any additional individuals identified through requests 1 and 2.

 

Defendant requests that that the Plaintiff supplement their Initial Disclosures with the following information. Defendant requests delivery of this information within 10 days of the date of this letter. Please note that this letter does not replace Defendants right to standard fact discovery and is simply an attempt to cure the deficiencies in the Plaintiff's disclosures.  If Plaintiff fails to properly supplement initial disclosures in the time given, , defendant will seek all appropriate remedies from the court. If you need to communicate with me further about the matter feel free to contact me at the address at the top of this letter.

Thank You,

Frosted 1

In pro per

 

 

 

 

 

 

Thanks again for all your help!

 

Frosted 1

 

 

 

 

 

 

 

 

 

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Help!!!  

 

CAn someone tell me... what is the UCC???  I've seen it referred to in several other posts, but am not familiar with the acronym?

 

Also.... To Shellieh98 and anyone else...  I need an answer to my last post... and any suggestions would be appreciated.

 

Thanks!!!!

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UCC= Uniform Commercial Code.  It is a group of states that follow the same statues for usually business law of big corportions. (banks being one) used mostly for goods made by one state, sold to someone to distribute, then sold to another state for market, then sold to consumer, you could have 4 or 5 states involved in one transaction, so they needed laws to be the same concerning these transactions.  it is also used in contract law and to allow for exceptions from the common law in contracts between merchants.

 

I will look it over when I get home tonight and see what I can see. :)

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I like it, except this part

3. It wasn’t until the June hearing that, inadvertently, counsel advised Defendant of date of last payment when he stated during discussions that he thought the date of last payment was October, 2009. Plaintiff needs to explicitly produce documentation defining said date of last payment, balance of account at that time, along with charge-off date and amount of said charge-off, or defendant shall file a motion with the court with the assumption that plaintiff is hiding date of last payment to avoid Statute of Limitation Issues and seek sanctions for Discovery misconduct.

I would take out the part that you will file a motion to the court and the part about seeking sanctions, put it in a less threatening way, use most of that paragraph but just say you will ask the court for remedies , (or something to that effect)

The best part of this letter is it gives them a heads up they will have to work for this, and these are issues you will bring before the court.

Hopefully Kent can weigh in before mon. When you send it.

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Thanks Shellieh98!!!

 

I do so appreciate your responses and your time.  I will make the changes suggested and look for a possible weigh-in from Kent before sending off.  Thanks again!    Frosted1

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I would not say in your M&C letter or anything else that FIA is a wholly owned subsidiary of BOA. You do not want them using your own words to prove any point. Make them prove everything. Just tell them you see nothing for transfer from BOA to FIA.

 

On the UCC or Uniform Commercial Code see http://le.utah.gov/UtahCode/chapter.jsp?code=70A. It is a major pain to read, but you can find some gems in there, especially when you read about Instruments.

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Hey Shellieh98 and KentWA !!!    THanks so much for all your help this last week.  I do so appreciate it!

 

I do have another quick question.  In Utah, what Is required in the Plaintiff's complaint?  Are they required to attach anything to the complaint?  I was reading about the contract being required in some states and there was nothing attached with the complaint I received.  They just claimed I entered into a contract with the OC, that I defaulted, that I owed $$$ and then gave their demands.  No documentation from the OC was included, no contract, statements, etc.

 

 Just curious to their obligation of validation.

 

Thanks again!

 

Frosted 1

 

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I do not know Utah's specific rule, but if I remember correctly they do not have to attach it to the complaint, but rather have 14 days after you file and answer for their initial disclosure to submit the proof that their complaint is based on.

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Shellieh98, Thanks again for your prompt reply.

 

I'm really brain-dead this morning... can you tell me, do I send a Cert of Service with the M&C or just do CMRR?  And do I send anything to the court?  I figure if I send copies of everything I do to the court, they have a record of it, which helps if the Plaintiff claims they didn't get anything.  Am I doing over-kill?

 

Thanks again,

 

Frosted 1

 

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M&C is informal communication between the parties and it should only be brought to the attention of the court when there is a dispute where one party has to file a motion and needs proof they have already tried to resolve the issue informally.

 

A contract does not need to be included with the complaint. However since it now becomes an integral part of their case, they must produce it in initial disclosures.

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Thank you Mr KentWA, 

 

No contract has been included in anything Plaintiff's attorney has sent.  The closest thing is an incomplete Bill of Sale from FIA Card Services to Asset Acceptance.  Hence the Meet & Confer letter. 

 

I do appreciate your responses and your willingness to be of such great help in this crazy battle against these leeches.  I thank you for all you do in this effort!

 

I'm off to the post office!   Frosted 1

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Well.... got a whole new packet in the mail.  Did send the M & C off yesterday.  The JDB attorney has submitted a Request to Submit For Decision.  Does that mean he's asking me if it's ok to submit?  

He did include an unsigned order in the file.  This is a Motion for an Enlargement of Time which is different than what he asked for the first time around (which was a Motion To Extend Fact Discovery Deadline.) 

After reading several times over, I did just realize what the JDB attorney is crabbing about.  In my admissions I used the statement:    In regard to admissions, the FDCPA, 15 U.S.C. 1692g, Sec 809(a)(4) and/or U.R.C.P. Act Rule 26(a)(1)(B,C,D,and E) entitles the consumer to verification of the debt if requested within 30 days of initial communication from debt collector.  Defendant did request, but  has not received, in accordance with said Laws, sufficient documentation from Plaintiff.  It is difficult to give applicable answers to the affirmative or negative when appropriate documentation has not been rendered.

Then I answered each Admit demand with this statement:  Defendant has made reasonable inquiry and the information known, or readily obtainable by the Defendant, is insufficient to enable the Defendant to admit or deny.  Pursuant to Rules specified above, the information supplied by the Plaintiff is insufficient to enable Defendant to admit or deny this Request.  This answer is in no way intended as an admittance of Defendant's obligation to this alleged account.  

 

Plaintiff is saying I didn't admit or deny.  I claimed I couldn't, with the information that I had.  Was that a mistake on my part? and does the JDB have a leg to stand on? How do I respond????   Help???   Anyone???  Do I need to object to this motion?  Will the Discovery time apply to me as well?  I ask that because the JDB's Order states:   "The Court, after reviewing Plaintiff's Motion for Enlargement of Time, and for good cause appearing,   HEREBY ORDERS that Plaintiff shall have an additional 120 days in which to serve Defendant."   The JDB only requested 90 days in the Motion, but put 120 days in the Order.  It still needs to be signed, but I'm assuming that, if signed, it will only apply to Plaintiff.  

 

Sorry to ask so much at one time, but I'm a bit stymied here and feel the need for some guidance.  Hope you can offer some suggestions as to how to answer this Motion.    Thanks for any suggestions at all.

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Not sure this post went through the first time, so I re-sent it.  

 

Well....I got a whole new packet in the mail.  Did send the M & C off yesterday.  The JDB attorney has submitted a Request to Submit For Decision.  Does that mean he's asking me if it's ok to submit?  

He did include an unsigned order in the file.  This is a Motion for an Enlargement of Time which is different than what he asked for the first time around (which was a Motion To Extend Fact Discovery Deadline.) 

After reading several times over, I did just realize what the JDB attorney is crabbing about.  In my admissions I used the statement:    In regard to admissions, the FDCPA, 15 U.S.C. 1692g, Sec 809(a)(4) and/or U.R.C.P. Act Rule 26(a)(1)(B,C,D,and E) entitles the consumer to verification of the debt if requested within 30 days of initial communication from debt collector.  Defendant did request, but  has not received, in accordance with said Laws, sufficient documentation from Plaintiff.  It is difficult to give applicable answers to the affirmative or negative when appropriate documentation has not been rendered.

Then I answered each Admit demand with this statement:  Defendant has made reasonable inquiry and the information known, or readily obtainable by the Defendant, is insufficient to enable the Defendant to admit or deny.  Pursuant to Rules specified above, the information supplied by the Plaintiff is insufficient to enable Defendant to admit or deny this Request.  This answer is in no way intended as an admittance of Defendant's obligation to this alleged account.  

 

Plaintiff is saying I didn't admit or deny.  I claimed I couldn't, with the information that I had.  Was that a mistake on my part? and does the JDB have a leg to stand on? How do I respond????   Help???   Anyone???  Do I need to object to this motion?  Will the Discovery time apply to me as well?  I ask that because the JDB's Order states:   "The Court, after reviewing Plaintiff's Motion for Enlargement of Time, and for good cause appearing,   HEREBY ORDERS that Plaintiff shall have an additional 120 days in which to serve Defendant."   The JDB only requested 90 days in the Motion, but put 120 days in the Order.  It still needs to be signed, but I'm assuming that, if signed, it will only apply to Plaintiff.  

 

Sorry to ask so much at one time, but I'm a bit stymied here and feel the need for some guidance.  Hope you can offer some suggestions as to how to answer this Motion.    Thanks for any suggestions at all.

 

 

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I am not really sure what they are asking for, almost sound like they do not either. A motion for enlargement of time to serve makes no sense since you have been served. A Request to Submit on a case they are still trying to serve also makes no sense.

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Mr KentWA!   Thanks, again, so much,  for your response.   I think the attorney is asking to serve Discovery.  Giving her the benefit of the doubt there.  She just took over the case.  I did receive another Request to Submit For Decision this morning.  This one is to Extend Fact Discovery Deadline.  Either she's trying to slip something by me re: Discovery Issues by calling it "Enlargement of Time to Serve" or she's made an error and has sent me a corrected Motion to Extend Fact Discovery Deadline.  Either way, I intend to answer both.

 

In my previous post, I mentioned the Request for Admissions issue.  Is it appropriate to amend my response to their Request for Admissions.  If so, I would like to know what you'd suggest as an appropriate answer to this Admit remark.  "Admit Defendant is indebted to Bank of America and its subsequent assignee, the Plaintiff, for the Account Balance as defined above with interest at the rate of 10.00%."  I await your reply.  

 

This is the new answer I'm proposing for all other admit questions.       "Defendant has no recollection of this alleged account.  Defendant lacks information or knowledge to reasonably admit or deny this request, as the Plaintiff has failed to provide sufficient documentation upon reasonable lawful request from Defendant.  Thus a denial is the only reasonable answer Defendant is able to give at this time."       Will this be okay?  I'd like to get this out this morning if possible.  I await your reply.   And anyone else who cares to weigh in.  Thanks

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Hi Guys!  Hope you all had a relaxing weekend and are feeling rejuvenated and ready for the new week ahead.   

 

I just wanted to refer to my last post and ask if it's wise to amend my original responses to the admissions request from the JDB?  I hope you have a moment to look at it and advise me accordingly.  

 

I thank you in advance for any and all suggestions.

 

Endeavoring to overcome!!   Frosted 1

 

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 Thank you so much for all your helpful suggestions.  I am very grateful to you.  You are right about the BOS  being incomplete.  I have it ready to attach to this file, as well as the copy of the credit card agreement, (consisting of two pages and still incomplete) that they sent to me.  I'm trying to find the page of questions I'm supposed to fill out for this post.  I will finish that as soon as I can find it.  In the meantime, do I send the attorney anything to explain why I did not provide them with my bank statements?  If so, what do I send?  Do I notify the court of anything that I send?  I only have two or three more days to respond to them, but I am not sure what I should be sending.  Any recommendations would be appreciated.  I'm sorry to be such a pest, but I've never had to deal with the courts before and I'm totally in the dark here.  Thanks again for all your time and effort.  You are a gift to us all!

Without recourse and without representations of warranties, it blows my mind that these are even submitted in a debt lawsuit and if we had a legitimate legal system the judge would throw these out when objected to by the Defendant.  These ridiculous fifth generation "bill of sale" phonies, when allowed in evidence by the "Court" should be responded to with copies of one hundred dollar federal reserve notes in the amount of the alleged balance owing.  What is good for the goose is good for the gander.

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Hi Shellieh98,

 

In post #91 of this thread, I gave the example of my original answer to the admit questions.  Then in Post #93 is my new answer.  I wasn't even sure if I could amend the original answers. hence, my questions.  If you could read my Post #91 and give me your opinion on the other questions there, I would greatly appreciate the feedback.

 

Thanks again for all your help!    Frosted 1

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Hi Chrisbbadd!

 

Boy!  Am I in agreement with you.  It really makes one wonder why the courts let so much of this crap into the system.  I'd love to see their faces when someone paid as you suggested.  Be even better if the court determined the payment to be legal.

 

Thanks for your response.  I think we should all try your suggestion at about the same time.  Maybe that would send a message to the courts and the JDBs.

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Anyone??? Someone???  Help!

 

Isn't there a rule i Utah that the Plaintiff has to be ready to face trial before serving the complaint?  I can't seem to find the rules stating the requirements for this.  

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Oh yes you did not deny, I don't know if your rules allow you to amend, but I would try. Things not admitted or denied can be deemed as admitted in most states, so as a precaution, I would amend them and send them off to the attorney before the try to get them deemed admitted.

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