If the lender is pursuing a foreclosure in court, you can challenge this judicial foreclosure proceeding by responding to the lenders complaint. Learn about them. https://www.justia.com/foreclosure/alternatives-to-foreclosure/filing-for-bankruptcy-to-avoid-foreclosure/, https://law.justia.com/cases/federal/district-courts/BR/120/13/1903039/. If the foreclosing party can't prove it owns the loan, it doesn't have "standing" to foreclose. ALLEN v. AMERICAN GENERAL FINANCE, INC. 251 S.W.3d 676 (2007) https://www.leagle.com/decision/2007927251sw3d6761906, Waiver requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable. Amazon.in - Buy 23 Legal Defenses To Foreclosure: How To Beat The Bank book online at best prices in India on Amazon.in. The servicer dual-tracking your loan (continued with a foreclosure at the same time that a loan modification or another foreclosure avoidance option, like a short sale or deed in lieu of foreclosure, was pending) in violation of federal law or maybe state law, if applicable. However, during the foreclosure action, it was claimed that the plaintiff failed to use a rent receiver to claim rent owed, which had a monthly value of $18,000. 3d 464, 471 (Ohio Ct. App. "Generally in the absence of some element of estoppel or such extraordinary circumstances as would render inequitable the enforcement of petitioners' right after a delay, laches will not bar a suit short of the period set forth in the limitation statute. 05-4353 (E.D. 06-13361, 2008 WL 2001761, at *3 (Bankr. For a better shopping experience, please upgrade now. Below is a description of these common foreclosure defenses and an explanation of how you can raise them in court. Fireman's Fund Mortg. Recoupmentis ordinarily "permitted only to reduce or eliminate damages, not to gain some other relief. ASSOCIATION v. EICHTEN 196 A.3d 328 (2018) https://www.leagle.com/decision/inctco20180918067. Co. of Atlantic City v. Swaggerty,86 N.J. 602, 612(1981). Our foreclosure defense lawyers and law firm are dedicated to helping families find the best solution to foreclosure. IN RE JPMORGAN CHASE MORTG. In order for a trial court to grant a motion to dismiss for failure to state a claim upon which relief may be granted, "it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." Choose Expedited Shipping at checkout for delivery by, Learn how to enable JavaScript on your browser, Legal Reference - General & Miscellaneous. You can probably get rid of the foreclosure proceeding if you can show that you are making payments under the loan modification plan. Whitacre P'ship v. Biosignia, Inc.,358 N.C. 1, 15,591 S.E.2d 870, 880(2004). Nat'l Mortg. Section 502(b) does not identify "insufficient documentation" as a basis to disallow a claim. Hartman v. Great Seneca Fin. Plaintiffs allege they detrimentally relied on Chase's promise to permanently modify their loan by repeatedly contacting Chase, by repeatedly preparing documents at Chase's request, by discontinuing efforts to pursue a refinance from other financial institutions or to pursue other means of avoiding foreclosure, and by losing their home and making it unlikely they could purchase another one. Format: Paperback. proceeding); Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. S.D.N.Y. 1303.31(A)(1); 1301.201(B)(21); https://law.justia.com/cases/ohio/tenth-district-court-of-appeals/2016/14ap-817.html Non-holder Who Has Possession (B) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument(C) Unless otherwise agreed, if an instrument is transferred for value the transferee has a specifically enforceable right to the unqualified indorsement of the transferor(D) If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur, the transferee of that instrument obtains no rights under this chapter, and the transferee of that instrument has only the rights of a partial assignee. 1996) (courts have "interpreted the concept of redelivery to support the validity of service upon a corporation's receptionist or secretary") (collecting cases). The order includes a requirement that a mortgage holder cease foreclosure activities. 1989), https://casetext.com/case/in-re-smith-149. MAZZEI EX REL. . No. 12(E), not to seek dismissal of the complaint. Few states allows these types of judgments. Ms. Boone thought she had done everything required of her. This book is the second edition to replace 23 Legal Defenses to Foreclosure: How to Beat the Bank. McLean v. JP Morgan Chase Bank Nat'l Ass'n,79 So.3d 170, 173(Fla. 4th DCA 2012). Stopping Illegal Foreclosure with Mortgage litigation. The Bank then filed a forcible detainer. If the servicer doesnt comply with your request, you can sue under RESPA. 2013) https://casetext.com/case/shahar-v-green-tree-servicing-llcWhat is the specific rule for it from the caselaw for this foreclosure defense? If a plaintiff believes that a statecourtjudgment was obtained byfraud on thestatecourt, the plaintiff's remedy is by way of a motion for relief from judgment under state law (and before the statecourt), not by way of a collateral attack on thatcourt'sjudgment in federalcourt. steering (pushing a borrower into taking out a risky, high-cost loan, even when they have good credit and should qualify for a low-cost. v. Lucas, No. The lender used predatory or unfair mortgage lending practices when you took out your mortgage loan. Applying the reasoning set forth in Williamson to the facts of the case at hand, we think that the evidence is sufficient to uphold the trial court's application of laches and, therefore, the court did not abuse its discretion. Buy 23 Legal Defenses To Foreclosure 08 edition (9781438278193) by Doucet for up to 90% off at Textbooks.com. 3500.21(d)(2)(i)(B). The defendant claims in her fifth special defense that the plaintiff violated the doctrine of unclean hands and should be precluded from proceeding with the foreclosure action because the plaintiff did not offer her a permanent loan modification under the program despite the fact that, pursuant to regulations published by the United States Department of the Treasury, she was entitled to a permanent modification upon the completion of her three trial payments. R. 4:5-4; 4:6-5. https://law.justia.com/cases/new-jersey/appellate-division-unpublished/2019/a0040-18.html. However, for a partial payment to revive an action, the partial payment must be voluntary. "Pyramiding" occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. (Doc. If you do not pay on time a court judgment may be taken against you without your prior knowledge and the powers of a court can be used to collect from you regardless of any claims you may have against the creditor whether for returned goods, faulty goods, failure on his part to comply with the agreement, or any other cause. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. o8AP-734, 2009-Ohio-1380 15 citing Zenfa Labs, Inc. v. Big Lots Stores, Inc. 10th Dist. CO. CIVIL ACTION NO. Further, an association may foreclose a lien securing assessments in any amount that are more than 12 months delinquent. 5:16-cv-00209-RLV.https://www.leagle.com/decision/infdco20170626a16, Rule 12(b)(5) permits a party to move to dismiss the complaint for insufficient service of process. . By accelerating Harrison's loan and foreclosing on his home without providing the contractually required notice, U.S. Bank failed to do something fundamental to the contract and committed a material breach. PINEDA v. PMI MORTG. The plaintiff has indicated that she has no recollection of executing the note or mortgage, does not have knowledge about the transaction, and has no remembrance about what became of any proceeds from the loan. Co.,948 F.3d 31, 35 (1st Cir. ", CHRISTOPHER VILLAGE v. U.S. 360 F.3d 1319 (2004) https://www.leagle.com/decision/20041679360f3d131911538. 2014). You can also find a foreclosure avoidance counselor in your area. In short, independent actions for fraud on the court are available only to "prevent a grave miscarriage of justice." Laches, as we have previously defined it, is an equitable defense to be applied where from delay, loss of evidence, and death, any judgment would be conjectural and difficult to do justice. The dispositive facts in this appeal are not in dispute. You can raise several different defenses if you believe that each of them applies. And while Plaintiff subsequently cured these defects and served Defendants a second time, this service did not occur until 9 days after the 90-day time limit for service expired (i.e., 99 days after the complaint was filed) (see ECF Nos. A face-to-face meeting is not required if: (1) The mortgagor does not reside in the mortgaged property. Under the Truth in Lending Act (TILA), a borrower must receive notice of a mortgage's transfer to a new owner or assignee within 30 days. 3953). Add to Wish List Link to this Book Add to Bookbag Sell this Book Buy it at Amazon Compare Prices. Ct. App. "[S]tanding requires some injury in fact to a legally cognizable interest ***." P. 3001(c)(1). Cases involving unlimited and continuing personal guaranties: o Cinemack Corp. 10th Dist. Co.(2002)29 Cal.4th 189, 199,126 Cal.Rptr.2d 908,57 P.3d 372.) 2017) https://casetext.com/case/anfriany-v-deutsche-bank-natl-trust-co-1. Where the plaintiff's conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles. The defendants Vogels are in good faith without actual knowledge and are not required to bring a quiet title action; their inaction does not bar the invocation of the doctrine of laches. 2001)https://casetext.com/case/associates-home-equity-services-v-troup As stated, what the Troups seek is a diminishment of the amount due based on Associates' violation of statutory fair housing and civil rights laws. ISBN-10: 1438278195. This edition, published 13 years after the first, completely updates the law and includes practice pointers and tips from the authors. Failing to raise a certain defense may waive it, so you should bring all of your arguments to the courts attention at the outset. Transferring ownership can end significant legal defenses otherwise available. Lubonty v. Barnard, 14-cv-3945 (ADS) (E.D.N.Y. 345 (Bankr. The appeal court believed that the motion to dismiss should have been granted due to the failure to join the indispensable party. (Author) 1 rating See all formats and editions Kindle $0.00 Read with Kindle Unlimited to also enjoy access to over 3 million more titles $9.99 to buy Paperback $14.43 1 Used from $15.83 3 New from $14.43 12(b)(6), in making futility determinations, the court must limit itself to the allegations in the complaint, as well as to any documents attached to the complaint as exhibits or incorporated by reference." As with a motion to dismiss under Fed.R.Civ.P. He published 23 Legal Defenses to Foreclosure: How to Beat the Bank in 2008 (watch for our update soon) and he has been helping families facing foreclosure since starting Doucet Gerling Co., LPA. 1944.34(k)(2). 23 Legal Defenses to Foreclosure breaks down 23 powerful foreclosure defenses into easy-to-understand chapters. 082069 (Bankr.S.D.Ohio Fed.23, 2009) (Doc. Rule 12(b)(5), on the other hand, challenges the mode of delivery or the lack of delivery of the summons and complaint. Thompsonv.Orcutt,257 Conn. 301, 310, 777 A.2d 670 (2001). After defaulting on the loan, Harrison received a letter from U.S. Bank dated April 2, 2011, stating that he must cure the default by May 2, 2011, or risk acceleration and foreclosure. Free delivery on qualified orders. The book includes: legal letters, forms, motions, an "Answer" to the lawsuit, and sample discovery to get damaging information directly from the bank. Sosa v. U.S. Bank Nat'l Ass'n, 153 So. The trial court ruled in favor of Brothers. Nat'l Ass'n, 783 F.3d 1022 (5th Cir. On April 30, just a little over one week later, HomEq sent another loan modification agreement, this time raising the loan balance to $870,000. Thus, the bankruptcy court found that the state court violated and modified Isaacs' discharge because the debt involved was unsecured at the petition date. [1] https://www.investopedia.com/what-are-your-legal-rights-in-a-foreclosure-4846357, [2] https://www.justia.com/trials-litigation/docs/caci/3900/3930/, [3]https://www.cs.xu.edu/~osborn/main/lawSchool/contractsHtml/bottomScreens/Briefs/Restatement%20350.%20Avoidability%20as%20a%20Limitation%20on%20Damages.htm. On the undisputed facts presented, we hold that Fireman's Fund is not precluded by AS 34.20.100 (1990) from satisfying its outstanding debt from available insurance proceeds even though it purchased the fire-damaged property at its own foreclosure sale. 2605(b)(1), (c)(1), 24 C.F.R. The correct rule is that "a plaintiff may plead the legal effect of the contract rather than its precise language." Pino subsequently scheduled depositions of various notaries and witnessesall employees of BNY Mellon's law firmto take place on March 12, 2009. CORP. 558 So.2d 430 (1990) https://www.leagle.com/decision/1990988558so2d4301857. v. Detweiler, 191 Ohio App. Real Estate & Business Law (888) 200-9824. 23 Legal Defenses To Foreclosure by Doucet, Troy. Any given foreclosure or legal situation has many potential claims and defenses, so it's a good idea to seek the advice of a foreclosure attorney or a legal aid organization to explore all possible alternatives available in your particular situation. HICKS v. WELLS FARGO BANK, N.A. Get help and learn more about the design. If she successfullydischargesherbankruptcy, FmHA'sforeclosurewill be dismissed, requiring FmHA to prepare a renewal agreement with debtor with an effective date as of August 28, 1985. Tenn. 2013). However, before the scheduled depositions occurred, and within the twenty-one-day safe harbor period set forth in section 57.105(4), BNY Mellon served a notice of voluntary dismissal dated March 9, 2009, dismissing the foreclosure complaint without prejudice pursuant toFlorida Rule of Civil Procedure 1.420(a)(1). Delaware) v. 236 Beltway Inv., 865 F. Supp. Rule 60(d) fraud on the court claims are available only where the fraud "seriously affect[s] the integrity of the normal process of adjudication." When it comes to important decisions, relying on accurate information is essential. This rule of liability is also applicable in California, we believe, upon the basic principle of tort liability declared in the Civil Code that every person is bound by law not to injure the person or property of another or infringe on any of his rights. The creditor may nonetheless proceed withforeclosurebyjudicialaction or proceed withforeclosurebased upon a different default. 3:12CV526-JRS https://www.leagle.com/decision/infdco20130123h03. 1:13-cv-10181-PBS (D. Mass. 3d 1040 (Fla. Dist. 3d 425 (Fla. Dist. personally contacted the homeowner to discuss options to avoid foreclosure, or. 178 So.3d 957 (2015) https://www.leagle.com/decision/inflco20151113138. MORTG. https://www.leagle.com/decision/infdco20190529e05, How would someone spot it in their own situation, Promissory estoppel is a quasi-contractual theory and "generally serves as a stop-gap where no valid contract exists to enforce a party's promise." 2016) https://casetext.com/case/caraccia-v-us-bank#p1279, Indeed, the prevailing rule is that, barring third-party beneficiary status, a litigant lacks standing to attack an assignment to which he or she is not a party." Associates Home Equity Services v. Troup, 343 N.J. Super. 39, 388 Wis. 2d 255, 932 N.W.2d 178 (Wis. Ct. App. 1024], in which defendant purchased property encumbered with a mortgage lien upon the strength of a promise made by plaintiff mortgagee that he would withhold enforcement for a year. 2015) https://casetext.com/case/jarvis-v-deutsche-bank-natl-trust-co#p196, Under the proper circumstances, a mortgage loan modification may stand alone and qualify as a negotiable instrument." https://www.leagle.com/decision/infdco20201209b38. A later breach "is justified by the other party's [prior] failure. Ct. 2015) https://casetext.com/case/wells-fargo-bank-na-v-cook-2#p385, Pfeifer v. Countrywide Home Loans, Inc., 211 Cal.App.4th 1250, 1264 (Cal. 2017)https://casetext.com/case/anfriany-v-deutsche-bank-natl-trust-co-1, Judicial estoppel is an equitable rule which prevents a party from attempting to change the facts of a case to fit whatever theory seems to be most beneficial to it at the time. Associates Home Equity Services v. Troup, 343 N.J. Super. o8AP-734, 2009-Ohio-1380 15 Note Not Negotiable: Consideration Needed See above Hamrick v. Safe Auto Ins. CondeDedonato , 391 B.R. 5927, 43 CLR 326 (Conn. Super. Indeed, Wells Fargo does not even assert that Rybarczyk actually had personal knowledge of the facts he averred to in his affidavit. Start here to find foreclosure lawyers near you. [8] Additionally, this defense could be used in a motion to dismiss. 2018) https://casetext.com/case/in-re-benyamin, A mortgage can be assigned in two waysby delivery of the bond and mortgage by the assignor to the assignee with the intention that all ownership interests thereby transferred, or by a written instrument of assignment. U.S. Bank, N.A. See Fed. 2d 344 (Fla. Dist. A plaintiff can establish standing through an affidavit of ownership, wherein standing is established "if the body of the affidavit indicates that the plaintiff was the owner of the note and mortgage before suit was filed." Some states require specific declarations in nonjudicial foreclosures. You can consult an attorney in your state to find out whether other defenses may apply to your situation. https://law.justia.com/cases/ohio/court-of-claims/2005/2004-10230-0.html, Failure to state a claim upon which relief can be granted under Ohio Civ R 12(B)(6) A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. It is certainly beyond question that "one who comes into equity must come with clean hands else all relief will be denied him regardless of the merits of his claim. In addition, prior to initiating any action required by law to foreclose the mortgage, the mortgagee shall notify the mortgagor in a format prescribed by the Secretary that the mortgagor is in default and the mortgagee intends to foreclose unless the mortgagor cures the default." Harrison did not cure, and on July 13, 2011, his home was sold in a foreclosure sale. Rptr. If you make a QWR, your mortgage servicer has to provide you with information regarding your loan amount. Shellnut v. Wells Fargo Bank, N.A., NO. Servs.,51 A.D.3d 1169, 1170 [2008] [internal quotation marks and citation omitted])" (Kaloyeros v Fort Schuyler Mgt. Nassau Trust Co v. Montrose, 56 N.Y.2d 175, 451 N.Y.S.2d 663, 436 N.E.2d 1265 (N.Y. 1982) https://casetext.com/case/nassau-trust-co-v-montrose. HomEq denies that it refused payments. Isaacs v. Dbi-Asg Coinvester Fund III, LLC (In re Isaacs) 569 B.R. McLean v. JP Morgan Chase Bank Nat'l Ass'n,79 So.3d 170, 173(Fla. 4th DCA 2012). The evidence is less clear about Conseco's intentions. Our foreclosure attorneys have set law in the Sixth Circuit and in the region that helps people. 743(Otworth), which stated, "If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference." See Filak v. George,594 S.E.2d 610, 614 (Va. 2004). Div. Tell us how we can help with your foreclosure. In that situation, you missed out on the opportunity to reinstate the loan because the servicer overstated what you owed. From mid-October to mid-November when Chemical Realty knew that the building was not going to be completed on the due date and the permanent commitment was lost, Chemical Realty paid to the defendant $560,732.54, a sum that would reasonably lead the defendant to believe that the loan was continued in full force and effect. Ct. App. Few law firms are able to achieve what we have for our clients. 2d at 603 (Fla. Dist. However, when the plaintiff is suing upon a contract and alleges performance that is denied by the defendant, "it is incumbent upon the plaintiff to prove performance, at least substantially." As discussed, however, supra note 7, Pennsylvania law requires that the mortgage lender provide the mortgage debtor with a minimum of thirty days' notice prior to the commencement of any foreclosure proceedings. v. Doran, 162 Conn. App. Each chapter incorporates a section of the possible damages available for each defense - including how to cancel the loan and get a refund of all money paid to the lender. at 396. It's now much more difficult to win your case based on a standing argument. List of Defenses to Foreclosure - Doucet Co., LPA - Doucet Gerling Do Not Sell or Share My Personal Information, Key Aspects of State Foreclosure Law: 50-State Chart, Foreclosure of Rental & Investment Property, See All Foreclosure Laws Products from Nolo, Do Not Sell or Share My Personal Information. It is hornbook law that a general creditor having no lien upon the property is not a proper party, initially or by intervention, to a foreclosure suit. According to Restatement (Second) of Contracts 350, "damages are not recoverable for loss that the injured party could have avoided without undue risk, burden or humiliation."[3]. 1996) (concluding that the defense adequately raised a statute of limitations defense in its summary judgment motion). Buy 23 Legal Defenses To Foreclosure: How To Beat The Bank by online on Amazon.ae at best prices. Gen. Laws ch. Can be entitled to enforce even if not owner or in wrongful possession. GALLAN v. BLOOM BUSINESS JETS, LLC Civil Action No. Caraccia v. U.S. Bank, 185 So. https://www.leagle.com/decision/infdco20210106674, To make a valid claim for fraud on the court, a plaintiff must show evidence of "an unconscionable plan or scheme which is designed to improperly influence the court in its decision. 23 Legal Defenses To Foreclosure: How To Beat The Bank : Doucet, Troy Frenchtown Square Partnership v Lemstone, Inc[7] Frenchtown leased a store space to Lemstone for a 10-year period. RESPA Violations and Foreclosure If you make a QWR, your mortgage servicer has to provide you with information regarding your loan amount. In other states, foreclosures typically happen outside of court (nonjudicial foreclosures), and you have no automatic means to mount a legal challenge. City Bank, Northwest v. Columbian Mut. In re Peed, 403 B.R. 21.50 (Vernon Supp. For example, they might have failed to promptly credit your payments or might have credited your payments to another account. 2007) https://casetext.com/case/williams-v-countrywide-home-loans-2. Recognition of these purposes has led to an analysis ofunconscionabilityin terms of "substantive" and "procedural"unconscionability. It appears that HomEq believed the balance had been miscalculated on the March 13 agreement and thus refused to honor it (even though management had reviewed it and a vice-president had signed it). Feb. 16, 2016) https://casetext.com/case/sepehry-fard-v-bank-of-ny-mellon-4, In 2008, appellee bank filed a foreclosure action and included a count seeking to reestablish a lost note. (2) The mortgaged property is not within 200 miles of the mortgagee, its servicer, or a branch office of either. <p> 23 Legal Defenses To Foreclosure: How To Beat The Bank<br>by Doucet, Troy<br><br>Pages can have notes/highlighting. Under a standard mortgagee clause, a mortgagor's breach of the insurance contract will not bar recovery by the mortgagee. U.S. Bank, N.A. Your case will be harder to make if the bank could turn around and say, "Yes, but you also wanted a waiver of deficiency and $5,000 to move, so that is why we passed.". Souza v. Bank of Am., Nat'l Ass'n, CIVIL NO. Therefore, Chase has failed to present evidence necessary to demonstrate that it is either the servicer, note and mortgage holder, or assignee such that it has standing to bring Claim # 2. Ct. 2016) https://casetext.com/case/td-bank-na-v-doran-1?resultsNav=false, In applying the laches doctrine to the belated foreclosure of a mortgage, the Williamson court said: Though recovery on the note is barred by a statute of limitation, the running of such statute on the note does not prevent foreclosure of the mortgage given as security therefor. MAZZEI EX REL. Classic Bar & Billiards, Inc. v. Fouad Samaan, (10th Dist.) Accordingly, plaintiff's failure either to attach or to set out verbatim the terms of the contract was not fatal to his breach of contract cause of action. The bank's reliance on a pooling and servicing agreement was insufficient to establish the bank's standing to bring suit at the time the suit was filed. No. Failure to mitigate damages can be used as an affirmative defense. 190 So.3d at 1089. FED. An "affidavit" (a written document signed under oath in front an individual authorized to take oaths, such as a notary public) does just that. Another thing to keep in mind is that the bank cannot condition its obligations to mitigate its damages by requiring you to do something first. SeeMass. 2:12-cv-970-MCE-EFB PS (E.D. Co., 282 F.3d 407, 409 (6th Cir.2002) citing Restatement (Second) of Contracts 336, cmt.b (1981). at 250. Wade v. Markwell & Co. [Civ. Ct. App. The confession shall operate as a release of errors. HICKS v. WELLS FARGO BANK, N.A. See Chakford v. Strum, 87 So.2d 419 (Fla. 1956); Manchester Insurance Indemnity Co. v. Novack, 284 So.2d 433 (Fla. 3d DCA 1973). (Internal quotation marks omitted.) These various laws set out requirements that servicers and lenders have to follow in order to foreclose a home. "Ocean View Towers, Inc. v. First Fid. 3:10-232. https://www.leagle.com/decision/infdco20140304d81, Judicial Estoppel, also known asCollateralestoppel, The doctrine of judicial estoppel generally bars a party from asserting a legal position contrary to an earlier position in the same or related litigation. St. George Island, Ltd. v. Sun Bank, N.A., 96 B.R. Smith's Lessee, 13 Ohio at 260. The first edition sold over 10,000 copies to homeowners and attorneys looking to defend foreclosure. App. [Citation.]"
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