February 28, 2014

Bi-weekly does not equal semi-monthly: Why the difference matters so much

by Peter Bricks

By Peter Bricks , a Cumming, Georgia bankruptcy attorney.


I recently was replaced another attorney in the middle of a Chapter 13 bankruptcy case in the Northern District of Georgia. My new client mentioned that she had trouble making the plan payments of her confirmed Chapter 13 plan, which were $560 per month.

This client had employer deduction order for her monthly trustee payments. This means the payments were essentially garnished out of her paycheck and mailed to her bankruptcy trustee, which is fairly typical of Chapter 13 plans.

After reviewing the deduction order, I noticed something odd. The deduction order called for the debtor to pay $280 per paycheck. Why was this wrong? The debtor’s employer pays her bi-weekly and not semi-monthly.

While debtors often use the term interchangeably, they mean vastly different things. Someone paid bi-weekly gets paid 13 times over 6 months (26 times in a year), whereas someone paid semi-monthly only gets paid 12 times over 6 months (24 times a year).

In reviewing the debtor’s account ledger, I realized the debtor had overpaid her trustee payments by over $1,000, because this mistake had been going on for over a year.

A similar problem I face is when reviewing people’s monthly budgets, they often tell me what they spend weekly and then multiply that amount by four to get a monthly figure. This is also incorrect, because there are 4.33 weeks in a month.

Math mistakes like this can lead to all sorts of problems, particularly incorrect figures on a means test. Additionally, it can cause great interference with a Chapter 13 trustee payment, because the debtor is going to struggle to make payments if the figures he is using are incorrect.

Peter Bricks is a member of the National Association of Consumer Bankruptcy Attorneys. He has bankruptcy attorney offices in Atlanta, Woodstock, Dunwoody, Cumming and Jonesboro, Georgia.

February 5, 2014

Minors Filing Bankruptcy

by Stuart Ing, Esq.

While is is very unusual, it possible for people under 18 to file bankruptcy. Why would a minor, who is not normally liable for debts, need to file bankruptcy?

Imagine this scenario. Father of child owns a house with a mortgage. Father dies, thus the child would inherit the house. Problem is, no one is paying the mortgage, so the lender wants to foreclose. Child is expecting life insurance proceeds from deceased father, but the foreclosure will happen before the insurance is paid. If nothing is done, child will lose the father’s house.

This is the situation that faced Shawn Powell, 10 years old, and his attorney Brett Weiss. To resolve the problem, the attorney filed a Chapter 13 Bankruptcy for Shawn, staying the foreclosure. The bankruptcy proceeding stayed the foreclosure long enough for the life insurance to come in and pay the mortgage. Read Shawn Powell’s story.

January 10, 2014

New Year – Time to evaluate your financial state

by Brian Flick

With the wave of the holidays over, now is the perfect time to sit down with your finances and see what 2014 looks like.  I would encourage you if you are behind on your mortgage or very worried about the looming credit card bills to sit down with a skilled bankruptcy attorney to see if filing a bankruptcy may be the best option for you.

January 10, 2014

Today is the Day! – New Rules for Homeowner’s Take Effect courtesy of the Consumer Financial Protection Bureau

by Brian Flick

Happy New Year everyone!  I wanted to get this article from the Washington Post out there for everyone.  The Consumer Financial Protection Bureau has implemented new rules for all servicers that every homeowner should know.

http://www.washingtonpost.com/business/economy/new-mortgage-rules-aim-to-protect-home-buyers-owners/2014/01/09/f928ebaa-793e-11e3-b1c5-739e63e9c9a7_print.html

New mortgage rules aim to protect home buyers, owners

By Danielle Douglas, Friday, January 10, 12:01 AM

Six years after the housing meltdown exposed fissures in the system, new mortgage rules that will take effect Friday stand to remodel the market.

Housing groups worry that changes meant to shield Americans from abusive lending practices that contributed to the financial crisis will make it harder for many to buy homes. But experts say the rules will create sustainable homeownership by ensuring that borrowers can afford to repay their home loans.

“The rules may cut some credit [availability] at the margins, but as a whole they will ensure that borrowers have a product they can afford,” said Sam Khater, deputy chief economist at the housing data provider CoreLogic. “The terms of the debate are always about access to credit, but it’s also about access to sustainable homeownership.”

The reforms written by the Consumer Financial Protection Bureau aim to protect Americans in the process of buying a home and if they run into trouble paying their mortgages.

In prepared remarks for a field hearing in Phoenix on Friday, CFPB Director Richard Cordray said the bureau is taking a “back to basics approach to mortgage lending practices. No debt traps. No surprises. No runarounds.”

Lenders will have to verify borrowers’ income, assets and debt before signing them up for home loans. Such common-sense practices anchored the mortgage market for decades but were cast aside in the lead-up to the meltdown as banks relaxed standards to churn out more lucrative loans. The result was millions of homeowners who were unable to manage their mortgages once the market tanked.

In response, the CFPB has created a category of home loans that offer lenders broad legal protections against borrower lawsuits, provided they adhere to certain criteria. These “qualified mortgages” limit upfront fees and bar risky features such as no-interest periods that can leave homeowners stuck with unsustainable loans. The loans are available to consumers who have a debt burden that is no more than 43 percent of income.

In real estate markets such as Washington, where prices are high, prospective buyers could run up against the limit as they stretch their finances to buy homes. But some of the nation’s largest banks, including Wells Fargo, have said they will offer loans for high-priced homes that do not conform to the new standard.

David Stevens, chief executive of the Mortgage Bankers Association, is concerned that lower-income borrowers, who would fall outside the debt-to-income ratio requirements, will not fare as well as wealthier consumers.

“We’re seeing institutions building business models to take advantage of that side of the market, charging 8 percent to 9 percent interest rates,” he said. “We need clear consumer protections . . . but nobody wants to push middle-class families on the margins into a shadow industry of high-priced mortgages.”

In the year since the CFPB finalized the mortgage rules, the bureau has made tweaks for a smoother implementation. Stevens said he wants the bureau to relax the debt-to-income ratio, which he said may be unnecessary because regulators have eliminated risky loan features.

Lenders are under no obligation to issue only qualified mortgages; they just have to verify that borrowers have the ability to make their loan payments. However, banks, which have doled out billions in recent years to settle lawsuits related to mortgage abuses, are likely to gravitate toward the protections afforded under the new loan category, analysts said.

The qualified mortgage rule is part of a broader collection of reforms that include changes to the way borrowers interact with mortgage servicers. These firms that collect mortgage payments were criticized for mishandling borrowers’ requests for lower principle or interest payments during the meltdown.

Now, mortgage servicers will have to maintain accurate records, offer ongoing access to staff members and provide options for delinquent homeowners to avoid foreclosure or face enforcement from regulators.

“It may seem silly that we need rules to tell servicers to answer the phone; not to lose people’s paperwork; to tell borrowers how much they owe,” Cordray said. “But we have lived through the financial crisis. We have seen with our own eyes the grave dysfunctions in the mortgage market.”

It is possible that the average borrower will not feel a major impact from the new rules, because lenders have become more conservative since the crisis, said Ghazale Johnston, managing director of Accenture Credit Services.

“In the last few years, a lot of these lenders have spent time strengthening their underwriting requirements and putting in place tighter internal controls,” she said. “The impact of that has been higher-quality loans being originated. The steps banks have taken to eliminate the risks have inadvertently helped them prepare for the rules.”

 

January 2, 2014

Tax Refunds or Why Bankruptcy Flings Tend to Spike in the First Quarter of the Year

by Stuart Ing, Esq.

Here we are the the first business day of 2014. If this year is like the previous years, we will see an increase in filings from January through April. Why is that? Because it is tax refund season.

For a vast majority of people filing bankruptcy, every paycheck is already accounted for well before actually receiving the paycheck (first paycheck goes to rent, second goes to paying all the other bills). Thus coming up with the $2000 necessary to file a chapter 7 bankruptcy becomes a strain, even if paid in monthly installments. But once a year, during tax refund season, some people get back a a chunk of money that isn’t already accounted for. Due to tax credits like EIC and child tax credits, this refund can be quite large.

Say you got a $2000 tax refund check and you owe credit cards $40,000 and can’t really afford to pay the money minimums on the credit cards. What is going to be better for you, paying $2000 towards the credit cards (which after a few month, will be eaten up entirely by fees and interest) and continuing to make payments you can’t afford or paying it to your bankruptcy attorney and and eliminating the debt in its entirety?

Contact a bankruptcy attorney now so when you tax refunds come in, you can be ready to start the year on the right course. We can also advise you on what to do with any excess tax refunds you have to keep it out of the hands of your creditors.

November 20, 2013

Where should you file bankruptcy if you are about to move states?

by Peter Bricks

By Peter Bricks , an Atlanta bankruptcy attorney.

I sometimes get calls from debtors who are interested in filing bankruptcy and have either recently moved into town or are planning moving away. The first thing they need to decide is whether they should file bankruptcy in Atlanta or wherever they plan on moving next.

Bankruptcy venue is dictated by 11 USC 1408. That code section says “a case under title 11 may be commenced in the district court for the district—(1) in which the domicile, residence, principal place of business in the United States, or principal assets in the United States, of the person or entity that is subject of such case have been located for the one hundred and eighty days immediately preceding such commencement, or for a longer portion of such one-hundred-and-eighty-day period than the domicile, residence, or principle place of business, in the United States, or principal assets in the United States, of such person were located in any other district.

Therefore, the first thing we need to decide is whether the debtor is even eligible to file in his current location. He might have just moved into town several weeks ago and is only eligible to file in the city he just moved from. He also might be eligible to file in two cities because his principal assets might be a different place than his domicile.

Once it’s been established whether the debtor is eligible to file at the moment in his current location, he should determine whether to do so makes sense. Take the example of the debtor who wishes to file Chapter 13 and is moving away in two weeks. Does that debtor want to establish venue in a place he will no longer live and then have to return for the meeting of creditors, confirmation hearing and other miscellaneous court hearings that might take place over the course of the case?

On the other hand, maybe the debtor cannot wait to file because he needs to immediately stop a garnishment or repossession.

Conversely, the Chapter 7 debtor in the same position might be more open to filing in the city he is leaving because he is likely to only need to make one court appearance in his case.

The point is there are a variety of factors the debtor should consider if he is changing residences, and he needs to think it through with a competent attorney and pick the right court to file the case.

Peter Bricks is a member of the National Association of Consumer Bankruptcy Attorneys. He has bankruptcy attorney offices in Atlanta, Woodstock, Dunwoody, Cumming and Jonesboro, Georgia.

October 3, 2013

Federal Government Shutdown and Bankruptcy

by Stuart Ing, Esq.

You can’t go more than a few seconds and not hear something about the government shutdown on the radio or TV. So how is this going to effect bankruptcies?

Right now, it is having some effect. Both the IRS and the Department of Justice are involved in many bankruptcy cases. Both of their bankruptcy staffs have been reduced so they may need extra time to properly respond to bankruptcy cases.

The Federal Courts have announced that they have about 10 days of cash on hand and can stay open until those funds dry up. So right now, cases are being filed, hearings are being heard; business as usual. What will happen after the 10 days are up is anyone guess right now.

The “non-essential” Federal employees are in a more tenuous situation. They have no idea if they will receive any retro-active pay. This on top of the sequestration cuts may be the thing that pushes their finances over the edge.

August 26, 2013

USPS Employees, Free Pre-Bankruptcy Credit Counseling

by Stuart Ing, Esq.

The USPS isn’t the only one with financial problems, the cuts are tricking down to the lowest level mail carrier.

If you are a postal employee and a member of the American Postal Workers Union or the National Postal Mail Handlers Union, Money Management International offers fee pre-bankruptcy credit counseling as a union benefit.

So if you find yourself in a situation where you might need to file bankruptcy, contact Money Management International or call 866.279.7197 for credit counseling.

August 18, 2013

Is your state a recourse state? Why it’s important to know if you are facing foreclosure

by Peter Bricks

By Peter Bricks , an Atlanta bankruptcy attorney.

The number one reason I consult with debtors about filing bankruptcy is due to underwater real estate. A lot of them have a home that previously had equity, but

does not currently.

In these scenarios, the client is worried about whether the bank will pursue a deficiency against him if he misses mortgage payments, and the bank does not agree to waive the deficiency through a short sale or a deed in lieu of foreclosure.

If you find yourself in that position, it is critical that you find out whether your state is a recourse or non-recourse state. What does this mean? It means you must learn whether the bank can pursue a deficiency balance after foreclosing. A full list of recourse states is available here; however, note that you need to check your state’s updated law to verify the information is still accurate.

To explain why this distinction is so important, consider these two scenarios. Let’s say two debtors who owe little to no unsecured debt, each have a home that is about $80,000 underwater and is facing foreclosure.

The debtor in a non-recourse state is possibly protected against the bank pursuing a deficiency and therefore will probably have no need for a bankruptcy to discharge a debt to the bank. However, the debtor in a recourse state can be pursued for a deficiency and thus might need or want to file bankruptcy to avoid this large debt.

Note that it is not as simple as knowing whether one’s home is located in a recourse state. There are nuances to consider and one should consult with a local attorney. Even in recourse states, the banks do not always pursue a deficiency for example. Georgia is a non-judicial foreclosure state, and the banks usually do not pursue deficiency judgments.

Also, even in a non-recourse state, that prohibition against pursuing a deficiency might very well apply only to the foreclosing bank. Therefore, if a second mortgage held a note as well, that bank can still pursue a deficiency. Also consider that even in a non-recourse state, the ban against collecting might only apply to purchase money loans. Therefore, if the debt originated from a refinance, the bank might still be able to collect against the debtor.

Peter Bricks is a member of the National Association of Consumer Bankruptcy Attorneys. He has bankruptcy attorney offices in Dunwoody, Woodstock, Cumming and Jonesboro, Georgia.

August 15, 2013

Beanie Babies and the Housing Bubble

by Stuart Ing, Esq.

Remember Beanie Babies? They were a big thing back the the 90s. So big that people though they were an investment. A bubble formed in the market for Beanie Babies, ending with some people losing a lot of money. Take a look at these people who lost money on Beanie Babies and try mentally replacing “Beanie Babies” with “real estate”. There are many similarities in those bubbles and probably future bubbles.

July 26, 2013

How Does Bankruptcy Affect the Filling of Income Taxes?

by Adam G. Schachter

This is a very common question, with a very easy answer: it doesn’t. That’s not the end of the story as two other issues can pop up depending on when the bankruptcy is filed, whether you get a refund, and whether you get a 1099 for debt forgiveness.

If you file your income taxes prior to the filing of a bankruptcy and (1) you are due a refund but (2) you have not yet received the refund, it’s important to make your lawyer aware of your right to receive the refund. In many instances, you can protect the refund and keep it. In some instances you risk losing it and it may make sense to engage in some more planning prior to the filing of the bankruptcy.

If you receive a 1099 for debt forgiveness after you file for bankruptcy, it’s important to speak with a competent CPA. You should not have to pay tax on the forgiven debt because it’s highly likely that you meet the IRS’ definition of insolvency. If that’s the case, there’s a form that a CPA could help you fill out that will cancel any tax owed on the debt.

Generally speaking, your bankruptcy filing should not have a direct impact on how you go about filing your taxes other than the two instances mentioned above. If you have concerns, you should mention to your tax preparer that you filed bankruptcy and you will almost certainly learn that there is no effect.

If you’re looking for relief from debt or assistance with Chapter 7 bankruptcy, we are here to help. We offer a free confidential, no obligation consultation to discuss your personal situation. Please call (713) 961-9477 for immediate assistance or visit our website here.

July 15, 2013

Gay Couples and Bankruptcy in Texas

by Adam G. Schachter

It’s a fact that Texas does not recognize gay marriage. It’s also a fact that there are countless gay couples in Texas. I have no idea how many of those couples are struggling financially, but I know our office has represented a fair amount of gay couples. The purpose of this article is to remove any mystery related to gay couples in Texas and their bankruptcy rights.

Married Couples and Bankruptcy

We often get asked from one spouse in a married couple if both spouses have to file for bankruptcy. It’s a common myth (read the other bankruptcy myths here) that both spouses in a married couple are required to file even if only one spouse wants to file. The truth is that only one spouse is required to file bankruptcy. When we quote a fee, that fee is usually the same whether one or both spouses file. It usually makes sense for both spouses to file when they are jointly and severally liable for a significant portion of the debt. These issues of “who files” and joint and several liability directly relate to a gay couple’s bankruptcy rights.

Gay Couples and Household Income

Even though only one spouse in a Texas-recognized marriage is required to file a bankruptcy, the law requires that we analyze a married couple’s bankruptcy rights based on the entire household income, not just the income of the spouse that is filing. This can sometimes negatively impact the analysis we provide to people. For example, if it only makes sense for one spouse to file, because he or she owes most of the debt, we still have to consider the non-filing spouse’s income. If the person who hopes to file earns nothing, but the non-filing spouse earns $100,000 per year, we have to base our analysis on the family income of $100,000 per year. There are arguable exceptions to this but that’s the general rule.

This household income analysis is not the same for a gay couple. Imagine the scenario in the previous paragraph, where one spouse owes most of the debt and receives no income. Because Texas does not recognize a gay marriage, we are NOT required to include the non-filing partner’s income. We are only required to consider the non-filing partner’s regular contributions to household expenses. This can have a huge impact on our analysis and it’s usually quite beneficial to our client to only include regular contributions to household expenses as income.

Gay Couples and Joint and Several Liability

Gay couples are no different than heterosexual couples when it comes to incurring debt. They have credit cards and houses together, buy cars together, etc. We’ve seen countless situations where it makes sense for the couple to file because of joint and several liability. What does it mean to be jointly and severally liable? It means that each person who has agreed to pay the debt (e.g. they signed the credit card agreement or promissory note) is responsible for 100% of the debt. If any responsible party dies or successfully completes a bankruptcy, the remaining signers are still responsible for 100% of the debt.

How does this impact a gay couple? Since they are not legally married does it mean they cannot file bankruptcy? Not at all. If each partner is jointly and severally liable for most of the family debt, such that it would make sense for them to file bankruptcy as a couple if it was allowed, they can each file their own individual bankruptcy and get relief.

How Does It Work?

Helping a gay couple understand their bankruptcy rights is really no different than helping a heterosexual couple. We still need to know everything we possibly can about the family finances in terms of income, expenses, creditors, property, etc. We have to take an extra step of signing something called a “conflicts waiver”. If there is joint and several liability on a debt and a lawyer meets with both responsible partners, the potential exists that only one partner will file bankruptcy. Only the partner who filed the bankruptcy will be absolved of the liability. The partner who did not file would now be solely responsible and the argument could be made that the partner who filed bankruptcy harmed the non-filing partner. When this potential for harm exists, a lawyer is required to explain the possibility and it’s best to put it in writing and have each potential client sign an acknowledgement–that’s the conflicts waiver. This is almost never a big deal as most gay couples, like most heterosexual couples, are in alignment as to what to do about their debt issues.

Once the conflicts waiver is reviewed and signed, everything else is the same. If the couple determines that bankruptcy is in their best interest, they would be required to file two separate bankruptcies. At our firm, we usually lower the fee for each partner’s case to make the total fees more manageable. We still have to do the same amount of labor in each case because they are totally separate.

Summing up

All of the above boils down to a couple of simple ideas:
1. Gay couples can file bankruptcy, they just can’t file one bankruptcy together as a couple
2. If one partner in the gay couple is not liable for much of the debt, it probably does not make sense for that partner to file bankruptcy
3. If both partners are jointly and severally liable for most of the debt, it would likely make sense for each partner to file his or her own separate bankruptcy.

Adam Schachter is a board certified bankruptcy lawyer serving Houston Texas and surrounding areas since 1999. For a free, confidential, no obligation consultation to discuss your personal situation please call (713) 961-9477 for immediate assistance or use the form on our website.

July 10, 2013

Chapter 13 Hardship Discharge

by Stuart Ing, Esq.

In a Chapter 13 bankruptcy, you promise to pay creditors, via the Trustee, a certain amount of money in exchange for your discharge. But what happens if you can’t make all the plan payments?

Normally, your case would get dismissed if you don’t make all your plan payments. But §1328(b) allows what is called a hardship discharge.

To qualify for a hardship discharge, you must show three things. First, you must show that your inability to make the full plan payment is “due to circumstances for which the debtor should not justly be held accountable”. So things like disability, loss of a job, natural disaster, etc… should qualify you.

The second is “the value, as of the effective date of the plan, of property actually distributed under the plan on account of each allowed unsecured claim is not less than the amount that would have been paid on such claim if the estate of the debtor had been liquidated under chapter 7 of this title on such date”. In a nutshell, your creditors must have already received, via your plan payments, as much as they would have received in a chapter 7 liquidation.

Lastly “modification of the plan under section 1329 of this title is not practicable”. This can mean you are already at month 60 of a 60 month plan or you income is so low that you can’t afford any plan payments or other factors which make a plan modification unfeasible.

Since granting a hardship discharge is at the discretion of your Bankruptcy Judge, you should discuss this with your attorney to determine if it is appropriate and if the judge is likely to grant it.

July 8, 2013

Yes, You can still own your house after you file Ch. 7

by Peter Bricks

Yes, You can still own your house after you file Ch. 7

By Peter Bricks , an Atlanta bankruptcy attorney.

I occasionally get calls from my former clients who have filed a Chapter 7 bankruptcy in Atlanta , received a discharge, and seen their case closed, which begin with the comment “Now that I no longer own my house because my Chapter 7 is over …”

The client who makes that comment is almost always still living in the same home as when he filed Chapter 7 bankruptcy and intends to remain there for a good while. Prior to the filing of the case, I explained to him that he was not going to lose his home simply due to filing Chapter 7.

When the client asks this question, I always remind them that they still own their home, assuming the bank has not foreclosed. Title ownership is an asset. The debtor only loses the asset in Chapter 7 if the trustee liquidates it because the debtor has more equity than is allowable for his exemptions.

The mortgage associated with the home is a debt. The debtor gets rid of the debt in Chapter 7 by not reaffirming, but keeps the asset. Now it is critical to remember that while the debtor gets rid of the technical “debt” to the creditor, the creditor retains its lien on the home because the debtor cannot get rid of the lien in Chapter 7 bankruptcy (the 11th circuit currently allows debtors to get rid of underwater liens in Chapter 7, but is the only circuit to do so).

Therefore, in the majority of Chapter 7 cases, the debtor retains his ownership, gets rid of his debt obligation, and the creditor still has a lien on the property which exceeds the value of the home. For example, if the debtor owns a $150,000 home but the mortgage is for $180,000, the debtor will still be on title since the trustee could realize no equity, but the debtor’s title ownership could not be sold for profit because the creditor’s lien exceeds the value of the home.

Finally, it is important to note that to stay in the home and not be foreclosed, the debtor must continue to remain current with the creditor after filing Chapter 7, or else the creditor will exercise its lien rights that survive the bankruptcy discharge to foreclose on the home according to state law regardless of the fact that the “debt” no longer technically exists.

Peter Bricks is a member of the National Association of Consumer Bankruptcy Attorneys. He has bankruptcy attorney offices in Dunwoody, Cumming and Jonesboro, Georgia.

June 20, 2013

Can a credit card company challenge your bankruptcy?

by Michael Goldstein

When a client sits down with me to discuss a bankruptcy they often ask me the same question.  What are the odds that my bankruptcy will be successful?  Now, I do explain to them first the income limitations and tax filing and document production requirements needed to sucsusfully navigate a Chapter 7 or 13 case.  However, the only real reason a bankruptcy should fail other then for a failure to comply with some court order is if a Creditor challenges your ability to receive a discharge due to fraud or hiding of an asset.

This type of challenge by a Creditor is called an adversary proceeding under Title 11, Sections 727 and 523.  They can file a formal complaint with the bankruptcy court to ask that your debt to them not be discharged, or that even your entire case be dismissed for filing in bad faith or by committing fraud.

The reality is that this type of challenge almost never happens in a simple Chapter 7 case, as the cost is very high and the standard of proof is equally daunting for the Creditor.  More specifically, the creditor must be able to demonstrate with specificity exactly how you committed fraud, or that you are hiding an asset and not disclosing it to the bankruptcy court.  This also includes false information you provided your creditors in order to obtain a loan or line of credit.  For example, you make $15,000 a year, but misrepresent your income to your lender and inform them you make $90,000 a year to get a higher line of credit.

The bottom line is that as long as you are truthful in your filing and disclose all of your financial information, including all assets you have and all creditors you owe money to, including family and friends, you should not have a problem with your discharge being challenged.   This includes listing any real estate you own or have a right to, as well as any claims you can bring against another person or entity to collect money.  However, if your discharge is ever challenged you need to take it seriously and consult with your attorney right away.

The foregoing article was for informational purposes only and is not intended to be legal advice or create any attorney client relationship with the Phillips Law Offices LLC.

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