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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87219
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I ordered the Judge to Compel plaintiff to answer Interrogatories.

Resolved Question:

I ordered the Judge to Compel plaintiff to answer Interrogatories. The plaintiff has not answered

any of them, but wants to pursue a summary judgement. I have sent to the Judge an update that

the Plaintiff has not responded to the interrogatories, and discovery. Are there any other steps for

me to do?
Submitted: 4 years ago.
Category: Legal
Expert:  Ely replied 4 years ago.
Hello,



My name is XXXXX XXXXX I am one of JustAnswer's attorneys. I'll be helping you resolve your matter today.




Yes. Just because the Plaintiff moves for summary judgment does NOT relieve him of the duty to answer Discovery.What you have to do is to file a Motion for Enforcement by Compel. A Motion for Compel (MoC) is essentially the device you use to make sure the other party follows the temporary or permanent orders set out by the Judge. It doesn't matter when the original orders were - 5 weeks of 15 years ago - as long as they are still alive, they are binding.Once a MoC is filed, a hearing date is set, and the other side is served. At the hearing, you or your attorney outline the things that the other side has not lived up to (which would also be spelled out in the motion). The Judges do NOT like it when their orders aren't followed (theirs, or their predecessors - all the same). They will demand a reasonable explanation, and by reasonable, I mean a life/death/imminent harm reason.When they get none, they will verbally admonish (i.e. scream) at the them, and then tell them that they have 15/30/however many days to do what they have to. At your request, they can also be made to pay for your costs in brining this motion (attorney costs and service, etc). An enforcement hearing will be set later. If they STILL do not perform, the Judge may assign punitive damages, or even imprison. Repeated shortcoming can be cause for a Motion for Contempt, which might hold a jail sentence to set them straight.

Best of luck in your matter. I'm here if you need any more clarification or follow up info.



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Customer: replied 4 years ago.
Hi, Eli,
The plaintiff did not respond to my "admit or deny" interrogatory in the time allowed. I made it clear that what I sent was a lawful notification which requires written response to me specific to the subject matter: "failure to respond within 5 days from receipt of this demand, as stipulated, and rebut, with particularity, everthing in this leltter with which you disagree is your lawful, legal and binding agreement with the admission to the fact that everything in this letter is true, correct, legal, lawful and binding upon you in any court, anywhere in America, without protest or objection. YOUR SILENCE IS YOUR ACQUIESCENCE.

This is the third demand for particular discovery and the plaintiff has only sent copies of documents that answer nothing.

The hearing for the Summary Judgment of foreclosure is just 14 days away. Can the court go ahead with that hearing when full discovery has been demanded but has been ignored?

With Admissions in this interrogatory, I will win my case hands down! The plaintiff CANNOT deny these well-planned statements or the judge will know that he is lying.

I am in a cancer treatment facility 3,000 miles away from the court. (1) Can I set a hearing date for a Motion for Enforcement by Compel when I know I cannot attend?

(2) How about if I send a Request to Compel Plaintiff to answer? Complete with the "Grant or Deny" order? SS envelopes included.

(3) But shouldn't the UNANSWERED Demand for Discovery Interrogatory be enough to end the contraversey (sic.)?

The judge also GRANTED my demand to compel the plaintiff to show me and my accountant the original, wet-ink, untampered, signed copy of my mortgage and my note.

(4) What form of demand should I use to let the Court know that plaintiff refused to show me those documents (of course, he doesn't have them)?

(5) What action could a judge take in this case?

Thanks for being there, Eli !!! Leigh and Manx

Expert:  Ely replied 4 years ago.
"The hearing for the Summary Judgment of foreclosure is just 14 days away. Can the court go ahead with that hearing when full discovery has been demanded but has been ignored?"Summary Judgment - yes, because summaru judgment is a motion by a party saying "there's no question of law here." Too hard to explain, but yes - summary judgment can go ahead without discovery. (1) Can I set a hearing date for a Motion for Enforcement by Compel when I know I cannot attend? YOU CAN TRY, AND ATTACH A MOTION FOR TELEPHONIC HEARING. THEN CALL THE CLERK, EXPLAIN THE SITUATION, AND SEE IF THE JUDGE WILL PRE-GRANT THE MOTION FOR THE TELEPHONIC HEARING FOR THE MOTION TO COMPEL.



(2) How about if I send a Request to Compel Plaintiff to answer? Complete with the "Grant or Deny" order? SS envelopes included.
NO - MOTION TO COMPEL IS BROUGHT BEFORE THE COURT. YOU'LL HAVE TO SERVE THEM ANYWAYS, OF COURSE, BUT IT HAS NO POWER UNLESS HEARD BY THE COURT. YOU CAN TRY TO SCARE THEM BY SAYING "I'LL SET THIS FOR HEARING IF YOU DO NOT FOLLOW THROUGH," BUT THAT'S UP TO YOU.

(3) But shouldn't the UNANSWERED Demand for Discovery Interrogatory be enough to end the contraversey (sic.)? NO. :\



The judge also GRANTED my demand to compel the plaintiff to show me and my accountant the original, wet-ink, untampered, signed copy of my mortgage and my note. IF THEY STILL DID NOT FOLLOW THROUGH AFTER THE MOTION TO COMPEL HAS BEEN GRANTED, NEXT IS A MOTION FOR CONTEMPT - WHICH CAN BE A FINE AND JAIL TIME FOR THEM.



(4) What form of demand should I use to let the Court know that plaintiff refused to show me those documents (of course, he doesn't have them)? MOTION TO COMPEL. THEN MOTION FOR CONTEMPT IF THEY STILL DO NOT FOLLOW THROUGH.



(5) What action could a judge take in this case? ADMONISH (YELL) AT THEM, ACCUSE THEM OF WASTING EVERYONE'S TIME, ORDER THE DISCOVERY TO BE DONE, AND ASSIGN YOU THE LEGAL, FILING, AND ATTORNEY FEES FOR THE MOTION. SAME THING FOR MOTION TO CONTEMPT, BUT THAT CAN HAVE JAIL TIME.

So to make them do it, first do a Motion to Compel, and then if they STILL don't do it, file a Motion for Contempt.Discovery (Interrogatories, Disclosure, Admissions, etc.) --> Motion to Compel --> Motion for Contempt.NOTE: If they don't answer the admissions, they are DEEMED to be admitted. So if they missed admissions, file a Motion for Summary Judgment based on the fact that they have "admitted" to everything.I know this is a lot to take in. I'm here if you need more info and/or clarification.

Best of luck in your matter. I'm here if you need any more clarification or follow up info.



I hope you found my answer helpful, and if so please click on the GREEN ACCEPT button for my answer. This is the only way for me to get credit for my work. Understand that when you put in your payment info, you still have not paid until you press ACCEPT.



Your question will not close, and you will still have the opportunity to follow-up if and I would be happy to answer any and all of the follow up questions.



Remember, sometimes the law under which your situation falls does not give you the outcome or the choices you wanted - please understand that this is not the attorney's fault, but the way of circumstance.



There might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.



Leaving a bonus and positive feedback is not required, but doing so is certainly appreciated!



You can always request me for a future legal consultation through my profile at http://www.justanswer.com/profile.aspx?PF=7286322&FID=7 If you do this, make sure to being the question with “This Question is for Eli…”

























Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87219
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 14 other Legal Specialists are ready to help you
Customer: replied 3 years ago.
Hello Eli,
The questions I previously asked you I still intend to follow through. As I stated in the past that I am 3,000 miles away in a Cancer Clinic. My health since I talked with you and had the last hearing had gotten complicated, and almost died from infection etc...
Now I have the hearing again for the summary judgement, tomorrow
What can I say to the judge about the reasons why I didn't file A motion to Compel?
Another words I was so sick, and have been with Double breast Cancer, and only got the notice of this hearing this past Friday. I called the court to ask if I could do the telephonic hearing on friday , and couldn't get through to ask the right person to do the telephonic hearing. I'm also in California, and the case is in Florida. So there was and is a Time difference as well. Is there an emergency motion I can file or Do I just call the court tomorrow before the hearing time to see if I can be included in the hearing? Also at the last hearing the Plantiff wasn't prepared at all, and the Judge admonished her, and told me that the next heaing I wouldn't have to pay for, and to remind him, but I didn't get notice of the hearing until this past Friday as I stated earlier. Leigh
Customer: replied 3 years ago.
Hello Eli,
The questions I previously asked you I still intend to follow through. As I stated in the past that I am 3,000 miles away in a Cancer Clinic. My health since I talked with you and had the last hearing had gotten complicated, and almost died from infection etc...
Now I have the hearing again for the summary judgement, tomorrow
What can I say to the judge about the reasons why I didn't file A motion to Compel?
Another words I was so sick, and have been with Double breast Cancer, and only got the notice of this hearing this past Friday. I called the court to ask if I could do the telephonic hearing on friday , and couldn't get through to ask the right person to do the telephonic hearing. I'm also in California, and the case is in Florida. So there was and is a Time difference as well. Is there an emergency motion I can file or Do I just call the court tomorrow before the hearing time to see if I can be included in the hearing? Also at the last hearing the Plantiff wasn't prepared at all, and the Judge admonished her, and told me that the next heaing I wouldn't have to pay for, and to remind him, but I didn't get notice of the hearing until this past Friday as I stated earlier. Leigh
Expert:  Ely replied 3 years ago.
Hello,Can you give me a few hours to answer your question?
Expert:  Ely replied 3 years ago.
Hello,I lost the question link, I am sorry. I am working on this today.
Expert:  Ely replied 3 years ago.
Hello,Hopefully this has gotten to you in time. I am sorry for your situation. Your mitigating factors do influence the situation. If you still can, you need to just fax the court the motion for telephonic hearing, explaining the situation, and hopefully the Court clerk will present it to the Judge. Make sure to follow up and to ask if it was received. In fact, do to your condition, you need to ask the Court to delay the proceedings all together until you get better. Your BEST bet is to have counsel come in for you. Perhaps I can help you find someone - let me know.
Customer: replied 3 years ago.
Hello Eli,

Where you replied you lost the question link you also lost the question. The hearring is over and done with. We kind of figured because the first hearring in Feb 2010 the Plaintiff
wasn't prepared at that telephonic hearing, and it literally got re-scheduled to this past Monday's hearing. So that was almost 7 months since we filed any new motions, pleadings, or any of your previous advice because of the illness. But I wanted to know does it make a difference whether it was 2 rental properties, and not where I am living.
However where I live is also up for foreclosure. I still am in the process of defending where I live . I have some questions for you , but not in this reply. I need to clear up the first 2 foreclosures first. So this isn't complicated. I sent you a previuos group of questions that must of got lost. Because all that happened is your program at Just ask
posted the same question twice. Are you still working on those questions?
Expert:  Ely replied 3 years ago.
No, I did not get them. Can you please send again?
Customer: replied 3 years ago.
Eli,
I don't know verbatim what I asked and got lost.
1. Does it matter in foreclosure if a person is defending rental properties VS their own home?
2. If a person takes the postion in an affirmiative defense of Fraud does it matter?
3. The law firm I was going up against in Florida was indicted along with 3 other firms for being foreclosure mills, and not doing the process properly and forging court documents, but the judge stated at this past Monday's hearing that they had it under advisement and that because of the indictment they are doing things twice. I don't know now that the summary judgement has been granted what I could file or do?
These are just a few questions I remembered, but not all.
Expert:  Ely replied 3 years ago.
I'll answer these and if you think of any more, let me know :)


1. Does it matter in foreclosure if a person is defending rental properties VS their own home? NO.
2. If a person takes the postion in an affirmiative defense of Fraud does it matter? YES, ANY DEFENSE IS A VALID DEFENSE.
3. The law firm I was going up against in Florida was indicted along with 3 other firms for being foreclosure mills, and not doing the process properly and forging court documents, but the judge stated at this past Monday's hearing that they had it under advisement and that because of the indictment they are doing things twice. I don't know now that the summary judgement has been granted what I could file or do? YOU NEED TO CALL THE CLERK OF THE COURT AND SIMPLY ASK IF A SUMMARY JUDGMENT HAS BEEN FILED. That's all :)
Customer: replied 3 years ago.
Eli ,

What is the process after there is a summary judgement?
What's my recourse Legally?
When you have filed all the proper papers up to a point , and after a judge has compeled and also subpoenad the plaintiff, and it has all kind of been treated as frivolous especially now that we are on the 3rd judge. What can you file after that?
I know because I got sicker with my Cancer and didn't follow up with that is why the judge felt there was nothing he could do. When they say the house will be up for sale
on Dec 21,2010, and the Bank doesn't know that there was a Satisfaction of mortgage filed, and new warranty deed as an ace in the hole. I wanted to bring it up at the telephonic hearing, but I didn't. Any thoughts
Expert:  Ely replied 3 years ago.
Hello,If the other side gets a Summary Judgment, you have to appeal the judgment within 30 days.You have to file an appeal, and with the appeal, a motion for temporary orders to enjoin (restrict) the sale from happening while the appeal is pending.
Customer: replied 3 years ago.
Eli,

Do We file an appeal with the same court that made the judgement? Or do I have to go to the Appeal court to file an Appeal?
Expert:  Ely replied 3 years ago.
The appeal would actually be with the appellate division.
Customer: replied 3 years ago.
Eli,
We had on June 10,2009 got an order from Judge Shields McMannus from the 19th District Circuit Court, and given until July

10,2009. Plaintiff didn't comply with the Judges order to Compel.. We filed a Subpoena Duces Tecum after this and the Plaintiff was dismissive, and treated this Subpoena as frivolous , and I

got sicker with my double breast cancer, and didn't follow up with a hearing about these issues, and as a result I think that's why the 3rd Judge just gave the Plaintiff a Final Judgment of

Mortgage foreclosure.

Is my next step to File an Appeal with the 4DCA?": Do I file an appeal, and with the appeal, a motion for temporary orders to enjoin (restrict) the sale from happening while the appeal is pending.

The Time line of what I stated above is below this:

We had been doing everything ourselves up until the last hearing in Feb of 2010, and then about 7 months passed , and because of Leigh's health we didn't follow through with some things that we could of. This past Tuesday 2 days before Leigh's Cancer surgery there was a Telephonic Hearing with yet a 3rd Judge, and

we had just hear that the Law Group Watson for the Plaintiff was indicted along with 3 other law groups for sending in false assignments, and affidavit's etc..

We know it is still all based on contract law whether you live in the property or it's investment property correct? I mean Contract law is contract law and Fraud is fraud, and doesn't matter which you are defending.
These properties are all in Florida. 2 are in Port st. Lucie, and the last one is in Palm Beach County.

1. There is one other thing that has been done on all 3 houses being foreclosed. Have you heard of the right to Rescind with a Notice of Revocation
of Power of Attorney which was sent to the Bank of Original loan and Mers
2. Followed by Notice of Successor Grantee and Appointment
3. Statement of Breach and Unauthorized Appointment of Substitution Grantee/ Trustee
4. Notice of Removal
5. Notice of Right to Cancel and opportunity to Cure
6. Addendum to : Notice of Right to Cancel and Opportunity to Cure

After all these were sent and filed then a Satisfaction of Mortgage is filed and recorded with the Clerk, and then a New Warranty Deed is issued.
Because of this filing the Plaintiff should no longer have standing especially when all the above has occured and been filed. We thought as a last resort there would be no way Plaintiff could get the property, and we could file a quiet title.
Have you heard of this process Eli? Could you please call me as my days are numbered especially because of my cancer. Thanks so much.
Leigh Westbrook XXX-XXX-XXXX
Expert:  Ely replied 3 years ago.
Correct, you can appeal to the appellate division and at the same time, put in a motion for stay, to enjoin the order from being carried out while the appeal is sought. The court may or may not approve the stay (i.e. the injunction) while the appeal is considered.As for the process, I am afraid this is somewhat too complex to be answered via this medium, but generally speaking, you CAN challenge the title transfer within TEN days of sale if the proper notices like you possibly describe were not executed (if, for example, proper procedures were not followed or collusion existed between the bidders). F.S. Chapter 702.
Customer: replied 3 years ago.
Eli
When i was talking about the process above with the 6 steps I listed these were from a process we hired a company to contact the original loan holder which the loan number has not changed since the conseption of the mortgage. They applied the 6 step process,
and obtained a Satisfaction of Mortgage, and new warranty deed filed at the Clerk of courts office. The point to this whole thing is that it was my last ditch effort to save my house throught this process in which the Paintiff was removed from the Deed of Trust, and because of this they have No standing in this case when they have been removed.
They actually because they have no standing are comitting Fraud upon the court. They still got a summary judgement because none of what I just told you was brought to the attention of the court. This is something we were going to bring to the attention of this 3rd Judge who assured us there committee checked and rechecked everything with this case, but obviuosly didn't check with the Clerk of Court to see that a Satisfaction of Mortgage was filed, and New Warranty Deed was issued. So we file with the Court who granted a Summary Judgement a :

DEFENDANT’S MOTION TO VACATE JUDGMENT

Comes now the defendant, [Leigh Westbrook], by and through undersigned

counsel, and hereby files their motion to vacate foreclosure judgment, pursuant to Rules

1.540(b) Fla. R. Civ. P., states:


1. Florida Rule of Civil Procedure 1.540(b) provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or a

party’s legal representative from a final judgment, decree, order, or proceeding

for the following reasons:… (3) fraud (whether heretofore denominated intrinsic

or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that

the judgment or decree is void; This rule does not limit the power of a court to

entertain an independent action to relieve a party from a judgment, decree, order,

or proceeding or to set aside a judgment or decree for fraud upon the court.

2. The plaintiff ’s complaint fails to contain sufficient facts to establish who the

plaintiff is and its relationship to the defendant and to the claim for foreclosure of a

promissory note, including the date of the alleged assignment of the mortgage and note, and

the identity of the owner of the subject promissory note. The complaint fails to sufficiently

identify who the plaintiff is and fails to allege facts sufficient to determine the standing of

the plaintiff.

3. Florida Rule of Civil Procedure 1.130(a) provides in pertinent part: “All bonds,

notes, bills of exchange, contracts, accounts, or documents upon which action may be

brought or defense made, or a copy thereof or a copy of the portions thereof material to

the pleadings, shall be incorporated in or attached to the pleading.”

4. Plaintiff attaches documents to its complaint that conflict with the allegations of

material facts in the complaint in which the plaintiff claims that it “owns the Note” and

Mortgage by virtue of an unrecorded assignment that does not allege when the assignment

occurred. These allegations conflict with the mortgage attached to the complaint that

identifies [name original mortgagee], as the lender with the security interest. These

allegations therefore constitute serious misrepresentations and could be construed as a fraud

upon the court.

1





5. Additionally plaintiff makes allegations in its complaint that conflict with the

documents attached thereto as to who owned the subject note at the time the note was

allegedly lost.

6. When exhibits are inconsistent with the plaintiff ’s allegations of material fact as to

whom the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach

County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424

So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp.,

441 So. 2d 1114 (Fla. 3rd DCA 1983).

7. Florida Rule of Civil Procedure 1.130(b) provides in pertinent part: “Any exhibit

attached to a pleading shall be considered a part thereof for all purposes.” Because the facts

revealed by Plaintiff ’s exhibit are inconsistent with Plaintiff ’s allegations as to its ownership

of the subject note and mortgage, those allegations are neutralized and Plaintiff ’s complaint

is rendered objectionable. Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla.

4th DCA 1983).

8.

Florida Rule of Civil Procedure 1.210(a) provides in pertinent part:

“Every action may be prosecuted in the name of the real party in

interest, but a personal representative, administrator, guardian, trustee

of an express trust, a party with whom or in whose name a contract

has been made for the benefit of another, or a party expressly

authorized by statute may sue in that person’s own name without

joining the party for whose benefit the action is brought.”

9. The Plaintiff in this action meets none of those criteria. Because the exhibit

attached to Plaintiff ’s complaint is inconsistent with Plaintiff ’s allegations as to ownership of

the subject promissory note and mortgage, Plaintiff has failed to establish itself as the real

party in interest and has failed to state a cause of action.

10. In Florida, the prosecution of a foreclosure action is by the owner and holder of

the mortgage and the note. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fl. 4th DCA

1975)

11. The Defendants recognize the precedent set in WM Specialty Mortgage, LLC v.

Salmon, 874 So.2d 680 (Fla 4th DCA 2004) regarding the assignment of a mortgage. However

as the Second District Court of Appeals noted, standing requires that the party prosecuting

the action have a sufficient stake in the outcome and that the party bringing the claim be

recognized in the law as being a real party in interest entitled to bring the claim as of the

date of the commencement of the action. The plaintiff ’s failure to meet the standing

requirements as of the commencement of this foreclosure action renders the complaint

fatally defective and, therefore constitutes misrepresentation as to who the Plaintiff really is.

The assignment cannot post date the filing of this action if assignment does not relate back

to the commencement of the litigation. Progressive Express Insurance Company v. McGrath

Community Chiropractic, 913 So.2d 1281 (Fla. 2nd DCA 2005).

12. The Plaintiff, in its complaint alleges that it “owns the Note and Mortgage”

however it has failed to produce any material evidence to support its claim. In the absence of

2





this evidence the Plaintiff is clearly misrepresenting themselves as the real party in interest

and the holder in due course with legal standing to bring this cause of action against the

defendant.


13. The Plaintiff alleges that it is the holder in due course on the subject mortgage

and note yet it is the belief of the Defendant that the note was part of larger securitization

process and sold to several un-named parties and beneficial owners and any claims by

Plaintiff, in the absence of the original note endorsed to Plaintiff, are a clear

misrepresentation of the actual facts.

14. It is the position of the Defendant that if the courts were to allow a Plaintiff to

bring a cause of action in a scenario where the Plaintiff alleges that it owns a certain note

and mortgage but fails to provide any evidence to the courts that this, in fact true, the courts

would open the door to incredible harm to any homeowner whose home is secured by a

mortgage.

15. If the court were to allow the Plaintiff in this case to prevail in light of serious

misrepresentation and fraud upon the court, it would result in a major injustice to the

Defendant. The Court cannot be in a position of enabling Plaintiff and its attorneys to

commit material misrepresentation or felony crimes.

WHEREFORE, Defendant requests this court grant Defendant’s motion for

vacating judgment and for all other relief to which these defendants prove themselves

entitled.


CERTIFICATE OF SERVICE


I HEREBY CERTIFY that a true and correct copy of the foregoing was served via

regular U.S. Mail to: XXXXX XXXXX ADDRESS on this XXth day of XXXXX,

2010.


Leigh Westbrook

ADDRESS

Phone

Fax


THen we file an Appeal with the Appeal court that the Lower Court didn't honor our Discovery, motions, and Pleadings. Correct



Expert:  Ely replied 3 years ago.
The motion is fine, but this 6 step process isn't something that is specifically a part of any type of legal 'procedure,' but something that they squarely came up with. I haven't 'heard' of it, I am afraid. It is not so much a 'process' but a 'legal strategy' they came up with, which has a lot pinned on variables that hey cannot guarantee. I'd venture to say it is not a guaranteed success, I am afraid.
Customer: replied 2 years ago.
Hello ELY,

I haven't responded to you since oct 25th 2010. My great friend & Mentor
which is the reason we contacted you in the first place Died in November in the same year. The issues that we contacted don't exist anymore, but I have a new one. Do we stil have an $18 credit?
Expert:  Ely replied 2 years ago.
Hello!

I am very sorry for your loss.

I do not have access to your billing profile. JustAnswer experts simply answer questions. We are not in charge of the billing aspects. You may go to www.justanswer.com/help to inquire about your billing, and you can always link to my profile for another question at a later time:

www.justanswer.com/law/expert-elyJD/

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