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It is very important that you obtain legal advice from an experienced attorney regarding your particular situation. Consultation before you take action will certainly cost you less than it will cost to fix your unintentional errors.

WARNING – BEWARE OF DEADLINES!

Failure to comply with deadlines will most likely result in the dismissal of the bankruptcy case. (§521(i)(1)).

BEFORE FILING A CHAPTER 13 BANKRUPTCY CASE:

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Chapter 13 bankruptcy is a repayment plan that protects the debtor from collection action during the plan and discharges any unpaid balance of dischargeable debts at the end of the plan.

The discharge in Chapter 13 covers a few debts that cannot be discharged in Chapter 7.  Debtors choose to file a repayment plan under Chapter 13 when: – they owe debts not dischargeable in Chapter 7 ( such as taxes, child support, fraud judgments) – they have secured debts on real property or vehicles which they wish to scrape off. – they have liens that exceed the value of the assets securing the debt – they have years of unfiled taxes – they are behind on car or house payments – their assets are worth more than allowed exemptions – their income is substantially more than their allowed expenses.

What are some issues the court considers important?

This is an excerpt from a bankruptcy court case that details what the court looks at to decide if a person is permitted to file a chapter 7 (this Order is dated before the 2005 Reform Act, so may not be applicable): (1) Whether the debtor has a likelihood of sufficient future income to fund a Chapter 11, 12, or 13 plan which would pay a substantial portion of the unsecured claims; (2) Whether the debtor’s petition was filed as a consequence of illness, disability, unemployment, or some other calamity; (3) Whether the schedules suggest the debtor obtained cash advancements and consumer goods on credit exceeding his or her ability to repay them; (4) Whether the debtor’s proposed family budget is excessive or extravagant; (5) Whether the debtor’s statement of income and expenses is misrepresentative of the debtor’s financial condition; and (6) Whether the debtor has engaged in eve-of bankruptcy purchases.

In Arizona the failure rate for those who try their chapter 13 case without an attorney is at least 98%.

The Debtors file documents called Petition, Schedules, Statement of Affairs, along with some other documents with the Bankruptcy Court. These documents are reviewed by the Chapter 13 Trustee and other creditors. In addition to the documents the Debtors also file a Plan of Reorganization. This is called debt adjustment. The intention is that over the next 3 to 5 years the Debtors will pay all the disposable income (income minus allowed expenses- some trustee have expense guidelines and Census Bureau and IRS Data) to their creditors by way of the Bankruptcy Trustee. At the end of their Plan period their remaining debts will be discharged, unless they are non-dischargeable.

Chapter 13 varies widely from district to district depending on the custom and attitudes of the local trustees and judges about what is “reasonable” and in “good faith”. A successful Chapter 13 case always requires an experienced bankruptcy lawyer familiar with the prevailing judicial attitudes in the district and the myriad of unwritten local rules.

In order to file for a chapter 13 you must:

•Before filing complete the Credit Counseling for Consumers Class.
•Have sufficient regular income to meet monthly living expenses allowed by the chapter 13 Trustee, as allowed by the IRS and make a plan payment. [§109(e), §101(30)] •Have less than a certain amount of unsecured debt, and secured debt. [§109(e)].
•Not be a corporation, partnership, stockbroker, or commodity broker. [§109(e), §101(30)]

You may file Chapter 13 and obtain a discharge, so long as you did not receive an earlier discharge in a 7, 11 or 12 in the 4 years before filing the new chapter 13, or another chapter 13 in the last 2 years, but that is an issue to discuss with your attorney. (§1328(f)

A liquidated debt is one where the amount the debtor owes is known, or capable of easy calculation. For example, a loan is a liquidated debt; the damages owing in an auto accident are usually unliquidated until judgment is entered.

A strategy frequently used is to file Chapter 7 to discharge those debts that are dischargeable, and file a subsequent Chapter 13 to repay those debts that were not discharged in Chapter 7, or that cold not be dealt with in a chapter 7 (such as paying arrears on houses, etc)…

The Bankruptcy Court statistics show that less than 2% of those filing without an attorney can ever be successful in a chapter 13.

This statistic pre-dates the 2005 Reform Act, which dramatically increased the complexity of filing for bankruptcy protection. Many people ask me if they “can file their own bankruptcy”. I always answer “Yes, anyone has the legal right to do their own open heart surgery, so why not not their own bankruptcy!” (Thank you Judge Baum for the quote). The laws were complicated before they changed in 2005, now I believe that only an fool would file their own bankruptcy, no matter “how simple”. In fact, after the law changed many lawyers stopped doing any bankruptcy law because it had become so complex; event fewer will help with chapter 13. Never listen to the advise of someone who filed their own bankruptcy. They had a “fool for a client” and probably committed at least one federal crime, but did not get caught. The new laws are being aggressively enforced and the Attorney General’s Office is actively pursuing bankruptcy fraud.

Do not use those who advertise on TV – you will end up paying their advertising costs.

Also, do not use “legal document preparers”. These are folks who want to be attorneys, but decided not to go to school. Instead, they pretend to know the law, or, worse yet, are disbarred attorneys or other scum who prey off the innocent who do not know better. Always check out your lawyer with their state bar. Ask for references from the lawyer. Most people find good lawyers by asking friends or relatives for referrals.

The debtor’s attorney will normally do the following things in a chapter 13 consumer case:

  • Analyze the amount and character of the debts owed by the debtor to determine whether bankruptcy is the best remedy for the debtor’s financial problems.
  • Assist the debtor in preparing his estate for bankruptcy, so that a minimum amount of property will later have to be turned over to the Trustee.
  • Review the Debtor’s history of payments and transfers to determine possible exposure to Debtor and others.
  • Assemble the information and data necessary to prepare the bankruptcy schedules and statements for filing.
  • Assist the Client in understanding their duties in a chapter 13.
  • Draft the Plan of Reorganization, based on the debtor’s situation, the law and the practical solutions available.
  • Prepare the proper petitions, schedules, and statements for filing with the bankruptcy court.
  • Determine whether the education classes are necessary. If so, file the required certificates with the court.
  • File the bankruptcy petitions, schedules, and statements with the court and obtaining the necessary injunctions and restraining orders.
  • Address issues related to redemption, surrender or reaffirmation.
  • File and notice the Plan of Reorganization.
  • Attend the Meeting of Creditors with the debtor.
  • Address issues raised by the Bankruptcy Trustee and creditors related to the Plan and other documents filed with the Court.
  • Attend Plan Confirmation hearings.
  • Address modifications of the Plan, as circumstances change during the life of the Plan.
  • Prepare and file amended schedules as required by the Debtor’s change of circumstances and/or the court.

The Trustee acts as the disbursing agent for the payments made into the plan. The Trustee also reviews the plan and challenges those plans that don’t, in the Trustee’s opinion, meet the tests for confirmable plans set out in the Bankruptcy Code. An experienced bankruptcy attorney will be able to predict most of the Trustee’s objections and address them them in the Plan, or amended Plan. The 2005 Reform Act puts much of this into question. It will take several years to work out what the new law really means. If the Trustee and the debtor can’t agree on the terms of the plan, a judge will decide if the plan can be confirmed.

Once the plan is confirmed, the trustee pays creditors regularly from the payments made by the debtor. The 205 Reform Act permits the Trustee to make adequate protection payments before the Plan is confirmed. These would be payments to the lender on your vehicle, etc.§1326(a)(1)(B)Generally, all debts existing at the beginning of the case must be paid through the trustee; current mortgage payments and some leases are among the exceptions.

The means test was explained in Chapter 7 FAQ. In a chapter 13 it is complicated because of a change in the definition of “disposable Income”. §1325(b)(2) The form used is Official form B22C. The problem is that the disposable income test, under either 7 or 13 median income approach, will not be an accurate measure of future ability to pay in the Plan. The test is a look back, not forward in time. In addition to other deductions, charitable contributions, up to 15% of gross income, is included §1325(b)(2)(A)(ii). Our firm will provide you a form for calculating the means test.

Every consumer who files Chapter 7 or 13 bankruptcy is required to take a credit counseling “briefing” within 180 days PRIOR to filing their bankruptcy and file a certificate of compliance. There is also a financial management class a “budget” class within 45 days after filing your bankruptcy. Failure to do so will result in additional fees and costs in order to get your discharge in your bankruptcy. There will be fees charged for those classes, unless you cannot afford to pay such fees. Ms. Drain will explain the process.

Warning about all these credit counseling companies – their information regarding bankruptcy is often not accurate. You must talk to a bankruptcy attorney in your State.

Before filing bankruptcy you must take one class called credit counseling: Ms. Drain will provide you with some suggestions, plus a link to the classess approved by the United States Trustee. BEWARE: YOU MUST TAKE THIS CLASS BEFORE FILING YOUR BANKRUPTCY. If you cannot afford to pay the fee then contact them for a waiver. Bring a copy of all documents to your meeting with us.

After filing your bankruptcy you must take a class called Personal Financial Management – we provide our clients with suggestions for providers.

The filing of the petition creates an automatic stay under 11 U.S.C. §362 prohibiting all collection actions.

11 U.S.C. §§ 301, 302, 101(42) – unless the Debtor has filed a prior bankruptcy in the last 12 months. Stay good for only 30 days if filed one prior case in last 12 months. §362(c)(3)(A). No stay at all if 2 or more cases in last 12 months. §362(c)(4)(A)(i) A dismissed case is a filed case. No excuse for failure to understand the requirements. A motion to extend the Stay must be filed within 30 days

The Debtors must file a Plan of Reorganization.

A copy of the plan will be mailed by BNC to all creditors and (in some cases) appear at a Plan Confirmation hearing that is usually between 20-45 days after the meeting of creditors. The contents of the Plan are dictated by §1322 – which requires the Debtor to submit all “disposable income” income, minus certain allowed expenses, to the Chapter 13 Trustee for the next 3-5 years. (§1325(b)(2)) “Disposable Income” is not defined the same in chapter 13 as in chapter 7. The length of the Plan is dictated by several issues too numerous to list in this brief outline of duties. The bankruptcy code allows each individual who files bankruptcy to keep basic assets deemed necessary for the debtor’s “fresh start” after bankruptcy. That property is referred to as the debtor’s “exempt property”.

Debtors often worry that they will lose personal possessions and household goods when they file bankruptcy.

Most Chapter 7 cases are no-asset cases. That means the debtors give up nothing to the trustee unless they owe back child support or alimony/maintenance. In that case, the Trustee can sell all assets owned by the Debtor, whether or not they are exempt. If the Debtor has assets over the exemption list then chapter 13 is a good idea, assuming the Debtor wants to retain those assets. In the Plan, the Debtors will pay the resale value of the assets that were not included on the Arizona exemption list. Once this is done the Debtors may keep those assets, unless the taxing authorities or secured creditors have the right to pursue the same assets.

If your case involves assets that are not exempt, then you must pay the fair market value of those assets through your Chapter 13 Plan. In other words, your creditors have the right to receive the amount they would have received if you liquidated those assets through Chapter 7. You are obligated to protect those assets until the Trustee can make arrangements to pick them up. Your creditors will be notified by the Trustee to file a proof of claim. The Debtor, Trustee, and other creditors have the right to examine the proof of claims and object to those they deem to be improper. All claims not objected to by the Trustee, you, or another creditor will be approved by the court and the creditors will receive a pro-rata share of whatever the Trustee has distributes, after paying other specified debts (child support, secured debts, etc).

Attorneys fees in Chapter 13 are usually paid in part before the case is filed, with the unpaid balance, if any, paid by the Trustee from the payments the debtor makes into the plan. Arizona attorneys may charge a flat fee (as set by the Bankruptcy Court) or, more likely, an hourly fee.  There is no way to predict what the fees will be because the chapter 13 process goes on for three to five years.   Some cases are more complex than others, or there are excessive objections to confirmation, claims, or the debtor fails to keep the on-going house payments or Trustee payments current.  There are always life changes – marriage, divorce, death, increase or decrease in income, or a hundred other issues that come up during the three to five years. It is important to talk to the attorney about this issue.

The court must consider requests for additional attorney fees, and if the request is approved, the additional fees will be added to the debts paid through the plan.

Be very careful about attorneys who offer discounted prices or TV or Internet advertising firms (many of which have filed bankruptcy after taking their clients money – such as Phillips and Associates). These firms charge very high fees and use strong-armed tactics to bully people to retain their services.

The filing of a bankruptcy generally means that your credit rating will most likely go to 480, but each person situation is unique. A chapter 13 is an open bankruptcy for 3 to 5 years. During the pendency of that bankruptcy your credit score can increase so long you keep your Plan payments and monthly mortgage payments current. It is not unusual that a Debtor obtain a new loan during their chapter 13. Warning – you must obtain court approval for any new loans, sales of assets or purchase or new large-dollar assets. Make certain that the new loan does not cost you more than staying with your current obligation.

When your bankruptcy papers are filed, they become public records. The record of your filing may be published by some credit-reporting agencies. In addition, your name will be published in one newspaper in Arizona, and possibly more. However, your name will be listed on a page with hundreds of other debtors, so your name will probably not stand out.

Typically – no. There are two issues that may involve you employer. First, the bankruptcy Trustee will request that you provide copies of several documents (tax returns, bank statements, etc). One of these items will be copies of some of your pay stubs before filing. If you refuse to provide this information then the Trustee may send a form to your employer seeking information about your wages. Second, the basic foundation of a chapter 13 is the monthly Plan payment made to the Bankruptcy Trustee. In some cases a wage assignment of those Plan payments may be required by the Court, the Trustee or your circumstances. Each situation is unique. The law prohibits your employer using the mere filing of a bankruptcy to deny you employment, unless you work in financially sensitive areas (securities, brokers, etc).

No. Bankruptcy is a civil, not a criminal proceeding. You do not forfeit any of your civil or constitutional rights by filing a bankruptcy. Also, neither a utility, a governmental unit, nor your employer may discriminate against you because you have filed bankruptcy. But, if you discharge a utility bill then you may find that you are charged a very large “deposit” when you apply for new utility service.

DURING A CHAPTER 13 BANKRUPTCY:

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The Debtor may not submit any documents to the Bankruptcy Court until the Debtor is certain that the information is (1) well grounded in fact; and (2) warranted by existing law or a good faith argument for the modification of the existing law. Rule 9011 In other words, someone who is representing himself or herself in a bankruptcy is held to know the bankruptcy and state laws that apply to their situation. Ignorance of the law is no excuse. The Debtor’s attorney must make the same avow regarding the information provided by the Debtor. Sanctions can be awarded under §707(b)(4).

§521 and other sections of the Bankruptcy Code describes the documents that must be filed and some deadlines:

  • Complete the required credit briefing class (before filing the bankruptcy §109(h))
  • All creditors must receive notice of the bankruptcy (§521(a)(1)(A). This notice requirement includes all addresses on all mail received in the last 90 days prior to filing. §342(c) Failure to provide notice to the correct address may mean the creditor can continue legal actions outside the bankruptcy court, until they receive notice at the correct address.
  • File the required schedules, statement of affairs and employer declaration.
  • File the required master mailing matrix.
  • File the required electronic declaration.
  • File the Mean’s Test (Official Form B22A-C)
  • 7 days before the creditor’s meeting deliver to the Trustee a copy of the last tax return filed or a transcript.
  • The day before the creditor’s meeting, Debtor must file all required, unfiled tax returns for the last 4 years.
  • Appear at the required creditor’s meeting.◦Provide the Trustee with proof of identity and other documents (bank statements, wage statements, tax returns, car titles, etc).
  • It is in the trustee’s discretion to continue the meeting for 120 days. (§1308)
  • File and notice the Plan of Reorganization.
  • Complete the financial management class (after filing the bankruptcy §§111.1328(g))
  • The Debtor must keep all child support and alimony/maintenance obligations current through the entire Plan, otherwise the Chapter 13 case can be dismissed. (§1307(c)(11))
  • The Debtor must file tax returns that are due during the last 4 year before filing the bankruptcy. (§1308(a) Otherwise, the Chapter 13 case can be dismissed. (§1307(e)) A Plan cannot be confirmed until all tax returns are filed. (§1325(a)(9)

The Trustee acts as the disbursing agent for the payments made into the plan. The Trustee also reviews the plan and challenges those plans that don’t, in the Trustee’s opinion, meet the tests for confirmable plans set out in the Bankruptcy Code. An experienced bankruptcy attorney will be able to predict most of the Trustee’s objections and address them them in the plan, amended plan or modified plan (this is filed after the Court confirms the plan). The 2005 Reform Act puts much of this into question. It will take several years to work out what the new law really means. If the Trustee and the debtor can’t agree on the terms of the plan, a judge will decide if the plan can be confirmed.

Once the plan is confirmed, the trustee pays creditors regularly from the payments made by the debtor. The 205 Reform Act permits the Trustee to make adequate protection payments before the Plan is confirmed. These would be payments to the lender on your vehicle, etc.§1326(a)(1)(B)Generally, all debts existing at the beginning of the case must be paid through the trustee; current mortgage payments and some leases are among the exceptions.

Surviving in Chapter 13: The restrictions or requirements on a debtor in Chapter 13 are:

  1. Make all plan payments on time;
  2. Keep your mortgage payments current, and the car – if that is being paid outside of the plan.
  3. Take the required Personal Financial Management class early in your Plan period.
  4. If you owe child support or alimony/maintenance you cannot fall behind on any payments. At least by the end of the plan period all such payments must be current. The Debtor must file a certificate that these obligations are current, otherwise the Court will not enter a discharge.
  5. Do not fall behind on new tax obligations during the plan period.
  6. Don’t incur significant new debt without court approval.
  7. Keep current insurance on any asset that is collateral for a debt.
  8. Provide the Trustee with information about change in income.
  9. Provide the Trustee with copies of annual tax returns.
  10. The debtor can move or change jobs, but must make sure to report any income changes to their attorney and the Trustee.
  11. Court approval is necessary before obtaining a new car loan; incorporating a business that is an asset of the estate; or refinancing, selling or purchasing a home. Getting that approval can take 30-45 days.
  12. Plus, there will be additional obligations which will be explained by your attorney.

Every debtor who is self-employed or operating a business must file a monthly financial report known as a “Business Operating Statement”. The term self-employed includes a person who operates a business, whether full or pert time, or with another person. Also, a person who is an independent contractor, subcontractor, works on a a contract labor basis, or any other work where taxes are not deducted from the pay received, is deemed self-employed for the purpose of filing the operating statement. The trustee will give the Debtor a copy of the business operating statement, along with instructions.

The first Business Operating Statement must be filed for the actual month in which the debtor filed their chapter 13 case. Then, on or before the 15th day of each succeeding month a new Business Operating Statement must be filed. These statements are filed with the Bankruptcy Court, with a copy to your attorney and the Trustee.

The Business Operating Statement is a cash-based report. Do no use an accrual accounting method for this report. Make sure to account for all your expenses and income. See your attorney if you have any questions.

There is no one answer to this question – it depends on the lender, the trustee and the court. But, at the very least you first must obtain advice from your attorney. Plus you will need permission from the Trustee and the Court before embarking on this adventure. Some predatory lenders will be happy to charge you very high interest rates to buy a house. The longer you wait in your chapter 13, the better interest rate you can be offered. After 18 months of perfect payments to your Chapter 13 Trustee and to your mortgage lender, then most good lenders will probably extend a new loan.

Yes, but you must obtain permission from the Bankruptcy Court and the Bankruptcy trustee before the lender will approve the loan modification. The Bankruptcy Court cannot make the lender modify the loan. Make sure that the loan modification will be financially beneficial before going this route.

Check out the Arizona Bankruptcy Court’s Mortgage Modification Mediation Program

December, 2017 new changes to the Mortgage Modification Mediation Program.

Possibly, but this depends on several factors.  This process is called a “lien strip”.  You need to determine the value of your home, the amount of debt owed to the first mortgage, including arrears.  You also need to know the amount owed to any other secured creditors, such as homeowners’ association, real property taxes, etc.

This is a complicated process that your attorney can guide you through.  If property values are changing then it might change when and if you try to lien strip a junior mortgage.

Any right that you had to a tax refund at the time of filing the bankruptcy is an asset of your bankruptcy estate and belongs to your creditors. At the time that you get your tax refund check, you must turn that check over to the Trustee. In a chapter 13 most likely you will be required to surrender 3 to 5 years of refunds. Rethink why you are getting a refund check. By overpaying your taxes you are losing the opportunity to use those funds for your own purposes. The best solution is to calculate your wage deductions based on your current situation. Don’t use your refund check as a “savings account” because you will not be able to use it in that manner.

AFTER A CHAPTER 13 BANKRUPTCY, INCLUDING THE DISCHARGE:

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Only individuals, who have complied with the Bankruptcy laws and completed their chapter 13 Plan, can receive a chapter 13 discharge. An individual cannot receive a discharge in the 13 if they received a discharge in 7, 11 or 12 in the past 4 years before filing the current case, or in a chapter 13 in the last 2 years before filing the current case. 1328(f).

Discharge is the court’s order stating that you do not have to pay your debts to the creditors that were listed in your bankruptcy documents, so long as the court did not entered a non-dischargeability order. Other debts that are not discharged under the current laws include student loans, child support, alimony/maintenance, government fines or penalties, most taxes and a few others.

If a debtor is required to pay child support or alimony/maintenance, then, after all Plan payments are completed, they must file a certification with the Court that all payments are current, otherwise they will not receive a discharge. (1328(a))

The effect of a discharge is that debtors are released from personal liability for all dischargeable debts, and all creditors, whose debts are discharged, are prohibited from performing any act to collect such debts from the debtors. This is known as a permanent, federal injunction. In a chapter 13 the discharge is not entered until all your plan payments are made and the terms of the Plan completed in full. If the debtor commits fraud, or fails to perform as required by law, the discharge can be revoked.

Even after a discharge, generally a creditor that has a valid lien on property belonging to a debtor (such as: house, car, furniture, jewelry) may recover the property or its value. However, if the debtor possesses certain property that is encumbered by a judicial lien or a non-purchase—money security interest, the Debtor will have to bring this issue to the Court for an order which will remove the effect of the lien. This action is called a Motion to Avoid a Lien.

If the debtor wants to keep assets that have secured liens (such as a house or car) the debtor can either continue making the same payments as before the bankruptcy, or pay the lender one lump-sum payment equal to the fair market value of the item (redemption).

While the discharge stays on your credit record for 10 years from the discharge, it becomes less and less significant in a creditor’s decision to grant new credit with every year that passes.

Usually by mail, unless you have asked for electronic notification. In some states there may be a court hearing, which you must attend, where the court will explain the meaning of the discharge, or the reasons for denying your discharge, if it is not granted. Arizona does not have this discharge hearing, unless yours is a very unique situation.

Understand that this area of law changes. Debts that are listed here may be or not be discharged, depending on your circumstances.  In addition, a chapter 13 discharge will eliminate some debts that are not discharged in a chapter 7 bankruptcy.

Normally, if your discharge in bankruptcy is granted, in most circumstances all of your debts will be discharged except the following list, which is intended to be only an outline of most debts that are not discharged by operation of law or by a court order:

  1. Certain taxes, including trust fund taxes. But these are normally paid as part of the chapter 13 plan.
  2. If the bankruptcy court so rules, debts for obtaining money, property, services, or an extension, renewal, or refinancing of credit by means of false pretenses, fraud, or a false financial statement used with intent to deceive.
  3. Debts not listed in the bankruptcy papers, unless the creditor had knowledge of the case in time to file a claim.
  4. Debts for domestic support obligations (alimony, maintenance or support).
  5. Interest on non-dischargeable debts.
  6. If the bankruptcy court so rules, debts for intentional injury.
  7. Debts for certain fines and penalties payable to governmental units.
  8. Debts for student loans, unless not discharging the debt would impose an severe undue hardship. This undue hardship must be properly plead to the Court and the judge will decide based on your unique situation. This is a very difficult burden for the debtor to prove.
  9. Debts that were or could have been listed in a prior bankruptcy case in which the debtor either waived their discharge or the discharge was denied.
  10. Debt for personal injury judgments against you resulting from car accidents in which the debtor was a drunk driver.
  11. Post-petition homeowner’s association fees (but this issue is disputed).

Your discharge can be revoked for several reasons. Some include failure to comply with a court order, bad faith or fraud.

Yes. Bankruptcy is a federal proceeding and the bankruptcy court has the jurisdiction and power to discharge debts contracted anywhere in the Country, whether in or out of your state of residence. Of course, there are certain debts that cannot be discharged in bankruptcy.

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