Real Estate and Mechanic Liens in Indiana

hold_up_800_clrNot too long ago, a client came to me in a panic. They were selling their home. Suddenly, they are served with a Notice of Intention to Hold a Mechanic’s Lien. There was an allegation of work and a claim for over $10,000.00. They had a buyer in the wings, ready to close. The lien was bogus. The man who filed the lien was trying to pick my clients’ pockets.

Indiana law can be quirky when it comes to Mechanic’s liens. Typically, if someone files a lien for work done on a property, it has to be filed within 60 days of the work performed. In this case, there had been no work performed in the 60 day period. However, once a lien is filed, the lienholder has up to one year to foreclose against his lien. After that, the lien disappears.

REMOVING A MECHANIC’S LIEN ON A PROPERTY

There is a way to shorten the process. What homeowner, especially one with a sale pending, wants a lien to be on his property for up to a year. That is sure to kill any sales. In this instance, I immediately took steps to protect my clients’ interests and to invoke a special procedure in the law that can shorten the time for foreclosure to 30 days.

Fortunately, all turned out well for the clients. The lien is removed. The clients sold their home.

A lien on a piece of real estate is not something to be taken lightly. Sometimes, you have to make some serious investigations as to the validity of the claim, and you need to make sure the claim falls within the parameters of Indiana law. Moreover, you need to insure that the paperwork was filed properly and complied with the notice requirements of the Mechanic’s Lien statute.

RESOURCES

http://www.in.gov/legislative/ic/code/title32/ar28/ch3.html

 http://www.in.gov/dfi/2485.htm

 http://www.kddk.com/navigating-the-complexities-of-indianas-mechanics-lien-statute/

 

 



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The Probate Process in the State of Indiana

stick_figure_deceased_800_clrThe Probate Process

The Probate process in the State of Indiana and all other states is the lawful inventory, collection and distribution of the assets of a decedent, that is, a person who has died. It is a legal process. This means that the personal property, such as cash, jewels, cars, stocks, bonds, etc., and the real property (real estate), will be inventoried, valued, and listed with the Court along with a Petition to Probate the Estate of [Name of Person who died]. Non-probate property (such as property placed into a Living Trust or that was in a Pay on Death account) is not listed.

In the State of Indiana, opening an estate begins with the filing a Petition for Probate. Usually, the Last Will & Testament is attached to the Petition.  The Petition will ask the Court to appoint a Personal Representative (sometimes known as an Executor or Executrix) and is usually a relative. The Petition will tell the Court some important things, such as the date of death of the decedent and the names and addresses of the heirs.
If the estate has a value of less than $50,000.00 after certain deductibles (such as the cost of the funeral) and other expenses, then an Affidavit can be submitted instead of opening an estate. It is often called a “Small Estate Affidavit.”  If the primary asset is real estate, an affidavit can be used to transfer the property for sale purposes.

Supervised and Unsupervised Estates

There are two kinds of estates in terms of probate. There is the “supervised” estate and there is the “unsupervised” estate. In the supervised estate, the Personal Representative (PR) literally has to get approval of the Court for virtually everything. If she needs to liquidate (sell) property, then she must get a Court Order. If the PR wants to abandon property because it has no value, or the value of maintaining the property would be too costly, then he has to file a motion with the Court and get permission.

With an unsupervised estate, the Court does not get involved in the process except in seeing the petition and appointing the Personal Representative, and in the closing of the estate. Otherwise, the Personal Representative does whatever he or she needs to do in order to effectively administer the estate. After the assets are distributed, the PR files a Closing Statement with the Court.

Duties of the Personal Representative

There are a lot of duties for the PR. He will need to make a complete inventory of all the assets. That means, he’s got to make a list of what property was owned by the decedent and then has to determine the “date of death” value of that property. The PR has a duty to fairly administer the estate, which means she will have to make sure that there is no reckless spending or investing. If there is a business involved, then she may have to hire someone to continue running the business. In short, the PR becomes the overseer, the CEO of the business in a sense. She may not run the business, but she has a duty to make sure someone competent is hired to run the business. She has a fiduciary duty to take care of the assets of the estate.

Legal Fees and Costs of Probate

Find an attorney who has experience in estate work. Usually, a lawyer who does Wills and Trusts has the knowledge and experience in handling an estate. Always ask. You also should ask about fees. Typically, fees will range from 4% to 10% of the value of an estate, depending on the size of the estate (the higher the value of the estate, the lower the fees). Sometimes, lawyers will charge by the hour. Fees may range from $200-$350.00 an hour, or higher, depending on the complexity of the estate. Basic costs are the filing fee, publishing fees and administrative fees. All of these fees typically run around $300.00, but can be more. There are a lot of copying to be done in an estate case. Sometimes, there are appraisal costs, and there can be some travel costs.

Avoid Estate Litigation if Possible

stick_figure_chasing_money_150_clr_5122Realize this: Like divorce cases, in estate litigation typically, the oneS who will make out the most are the lawyers. Always strive for a Family Settlement Agreement. Sometimes, it is impossible, but if you have lawyers on each side who are experienced, ethical and professional, then it is usually achievable. Litigation is expensive. The lawyer hired for the Estate is going to be paid for his or her work from the Estate. That means you, as an heir, will get less. So, unless there is one person on the other side who remains unmovable and his or her refusal to negotiate is absolutely unreasonable, work to get everyone on board for  a Family Settlement Agreement. Otherwise, you’re all going to fight and fights costs money. Sometimes, there is no way to avoid a legal fight. But, that should be a last resort. If you have the right lawyer, he will know that and will work to avoid litigation, but will be prepared in the event there is no other way.




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Michael Jackson Estate|Poor Estate Planning Freezes Assets

michaeljacksonMichael Jackson died a rich man. But, three years later, his children have yet to see a dime of their father’s estate. Instead, litigation has swirled around the estate, costing millions in legal and other fees.

More than three years after the death of Michael Jackson, the trust fund for his children, Prince, Paris, and Blanket, ages 15, 14, and 10, has to yet be dispersed. His estate is $600 million and Estate Street Partners (ESP) has this advice in Feb 2013 for others to avoid a Jackson-like disaster. Rocco Beatrice, Managing Director of ESP, founders of the UltraTrust irrevocable trust, explains that “because of poor estate planning Michael’s family will have to still wait years until his probate, estate taxes, creditors’ claims, and other legal battles are finalized.” Read story here.

Michael Jackson 1 billion dollar estate debate
Merely executing a will is not always sufficient to preclude issues in an estate. One should look at all options, including a trust, or perhaps an LLP. One must look at what the expectations are of the person who wishes to pass his or her estate, as well as the circumstances. Is there a business? Will the business pass to all the heirs? Who will run the business? Are there going to be issues about who runs the business? What about compensation for the one(s) who runs the business? Is there a second marriage? Will the other children feel cheated? Is there going to be in inequitable distribution of the estate? If so, will this cause issues within the family? Is there going to be an “undue influence” allegation made? Is there a basis for such a charge? All of these are legitimate questions that ought to be answered. These, and much more complex questions and issues exist in the Michael Jackson estate.

The lawyer who drafts an estate plan usually meets with clients with considerably less assets than those existing in the Jackson estate, but the issues in the Jackson estate are common to many family situations. If these kinds of questions and more are not anticipated, then there is a likelihood that at the death of the testator or testatrix, a will contest will ensue. Sadly, in such instances, the ones who benefit most are usually the lawyers.

Bottom line: Plan for every contingency you can think of, and try to anticipate the worst case scenario. Be up front and honest with your attorney.

 



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Pastors Who Put Churches at Risk: Jack Schaap and The First Baptist Church

Recently, in Lake County, Indiana, we have witnessed the firing and disgrace of the pastor of First Baptist Church of Hammond, Indiana. Jack Schaap, the son-in-law of the previous pastor, Jack Hyles, who took over the reins of the church in 2001. It is a large church with thousands of members. Virtually all of them were loyal to the man they called “pastor.” He could do no wrong. Serious wrong, that is. It was unthinkable.

And then, the unthinkable happened. He was fired and the police were contacted. Unfortunately, this man lived a double life. While some have argued that it should have been evident from many of the abberant sermons he preached, it would have been difficult to have discerned the activity in which he was involved, to wit, the seduction and ongoing sexual relationship with a 17 year old girl with whom he had been counseling.

Now, the church is faced with an outpouring of criticisms, with members demanding answers, with critics second guessing their actions, and potentially, with litigation, should other victims surface who were not over the legal age of consent. The legal age of consent in Indiana is sixteen. To my knowledge, there is no evidence at this point that he had any carnal knowledge of the girl prior to her seventeenth birthday.

However, there were some visits to Illinois. The girl was taken by a secretary to the forest at Schaap’s demand, obstenbily for “counseling” purposes. I’m sure that would have been the cover story he gave to his secretary, since to my knowlege she is a woman in her sixties who, from all reports, is not the kind of person who would knowingly engage in delivering a young girl to a predator. If he had sex with her in Illinois, then there is a statute that will definitely come into play. It reads as follows:

§ 720 ILCS 5/11-1.20. [Renumbered from 720 ILCS 5/12-13] Criminal Sexual Assault
(a) A person commits criminal sexual assault if that person commits an act of sexual penetration and:
(1) uses force or threat of force;
(2) knows that the victim is unable to understand the nature of the act or is unable to give knowing consent;
(3) is a family member of the victim, and the victim is under 18 years of age; or
(4) is 17 years of age or over and holds a position of trust, authority, or supervision in relation to the victim,and the victim is at least 13 years of age but under 18years of age.¶ 61

In a case that defines a trusted person, I found this:

We cannot hold that the trial court abused its discretion in refusing the lesser included offense instruction where there was no evidence, even slight evidence, to support a jury rationally finding defendant guilty only of the lesser offense. Contrary to defendant’s unsupported contention that he was entitled to the instruction because there was no evidence that he was paid for any services or held a titled position in relation to the victims, there is no such requirement under the criminal sexual assault statute. In People v. Reynolds, 294 Ill.App.3d 58, 65 (1997), the defendant argued that there was insufficient evidence to sustain his conviction of criminal sexual assault where the State failed to establish that he held a position of trust, authority, or supervision, because he did not hold a parental relationship with the victim and was not a teacher, scout leader, or babysitter. The appellate court rejected the defendant’s argument, explaining that the terms “trust, ” “authority, ” and “supervision” must be given their plain and ordinary meanings. Id. While the appellate court agreed that the defendant’s position as a publicly elected official did not alone create a position of trust, authority, or supervision, the evidence at trial supported that such a position existed in relation to the victim. Id. at 66. The appellate court noted that the victim had worked as a volunteer on the defendant’s campaign for three weeks, that the defendant sometimes described his relationship to the victim as that of a “mentor, ” that he arranged for the victim to attend a private school, that the school would sometimes call the defendant when the victim had problems, that the defendant counseled the victim not to drop out of school, and that the defendant gave money to the victim at times. Id. People v. Rebecca, 2012 IL App (2d) 091259, 2-09-1259, 2-10-0303, 2-11-0204

The church has been placed in a legal quagmire by their former pastor, Jack Schaap. If it comes out that he had sex with the girl in Illinois, then the law would seem to indicate that he could be charged with a crime. If that is true, then the question arises as to the liability of the church to the victim. Now, that may never become an issue. But, the problem is that this man was enabled so as to put the church in that position.

The church has been victimized. But, I suggest that they bear much of the fault. It comes down to what kinds of rules they had in place. Were there any policies that said a male staff member should not be alone with a female in his office? Apparently, they’ve forgotten the lessons of their rather recent history which involved closed doors and “alone times” with another woman by the previous pastor. You’d have thought they would have created a policy forbidding such contact. But, in a church that has the view that the pastor is unrebukable, and who cannot be questioned as to his decisions, and is beyond reproach, such abuses can give birth to the nightmare that has enveloped the First Baptist Church of Hammond, Indiana.

It remains to be seen how this is going to play out. It could be that no criminal charges will come down. But, whether they do or not, this ought to be a prime lesson for every church: Set some solid policies in place and insist they be followed. If I were advising a church, one of the first things I’d advise is that the pastor get out of the counseling business. Hire someone trained to do that. Or, if you must do counseling of a spiritual nature with a member of the opposite sex, have your wife in the room. That is a protection for the church as well as for the pastor (and for the one being counseled).

If you are a church member, you should insist that your church have a policy that protects the church and the members, (as well as the pastor).

It is a sad commentary that today, we need policies in place to protect the church members and the church from the pastor. But, that’s just about where we are at in our society amongst many of our churches.



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Don’t be Afraid of Your Deposition: 7 Tips for Those Being Deposed

Depositions - Reducing Fear of a Deposition book

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Have you been informed by your lawyer that the other side wants to take your deposition? If you have, in all probability you are very nervous, and in fact, you may be downright afraid.

Know this: you are not alone! Most people who get served with a Notice of Oral Deposition are frightened because most people have never been through a deposition, and because there is that innate fear of those “evil lawyers who want to embarrass, humiliate, and destroy me.”

Fear not. There are some simple things that you can do (and some that you avoid doing) that will (1) relax and put you at ease and give you confidence for your deposition; and (2) guarantee that when you leave the deposition room, you will leave with the knowledge that you did well, and the chances are pretty good that your attorney will pat you on the back and say “Well done.”  If you follow these tips, the odds are pretty good that you are going to do well in the deposition.

Seven Tips to Reduce Your Fear of a Deposition

The following are 7 tips that will help stabilize you, reduce your fears, and give you confidence. I have been in many depositions, sometimes with the client who was being deposed, and sometimes I was there as the attorney giving the deposition. As such, I have learned a lot of things about individuals who do well in depositions, and why, and those who don’t do as well, and the reasons why they did poorly. Almost always, it involved some of the things I will share here with you. So, if you will follow these tips, you will be one of those who does well in your deposition.

1. Preparation. You need to know the facts as much as you can, but, it is not the end of the world if you forget some facts. I have been surprised at individuals who seemed to not be able to respond properly to the questions simply because they did not appear to know the facts of their case. If you are in an auto accident, for example, surely you are going to know the relevant facts about that accident. If there is something that you should know that you do not know, you have all the documents available to you to find out. If you need a copy of the police report, or you need dates and other such information, those are all available to you. Ask your attorney for a copy.

However, most of those kinds of things are not that critical, so even if you forget, do not worry about it. If you do not remember the exact time  that the accident occurred, or any incident occurred, that is something that can be determined at a later date, or through other documents. It is not the end of the world.

Now, it is better if you know those things, but some folks because of their nervousness may forget the date, or time, or some other fact. But, and this is important, if you cannot remember something that you probably should know, or that you once knew, do not say “I do not know,” or “I do not remember.” Instead, say “I do not recall at this time.” Or, you could say something like this: “I do not remember at this time, but if you have the police report or if I could look at such and such a document, to refresh my memory, that would be a great help.”

Lawyer’s Cure for a Poor Memory

Realize that part of what the attorney is doing when he or she is asking you questions is testing your memory, and trying to determine what kind of a witness you are going to be on the stand. If you get on the stand in trial and you do not remember a lot of those facts, it is not the end of the world.  Your attorney will simply say “If I show you such and such a document, will that refresh your memory?” You will, of course, say yes, and the attorney will show you the document, then you will answer to the attorney that your memory is now refreshed, and you’ll answer the question. It is done thousands of times a month across the nation, and has been a standard practice for many years. So, relax. There is a cure for your poor memory.

Do not get too uptight if, in your preparation, you find it difficult to recall some things. Now, having said that, let me add this. There are some things that you must remember. For example, if you were in an accident,  you certainly need to remember if it was the defendant who struck your vehicle and ran through a red light, and that you had the green light. You need to remember the pertinent facts (unless you were injured severely and have no recollection). If you have trouble with those kinds of facts, then you can hurt your case, unless there are other witnesses and/or facts that prove them. However, even if you forget such things  out of nervousness, your attorney can come back and correct it, and give you an opportunity to explain why you could not remember, or why you got some particular fact incorrect.

Bottom line: you do not have to be a walking databank of facts remembering every minute detail about every moment of every day. If you forget something, simply say in the deposition, “I do not recall at this time, but if you give me a few minutes I may remember, or perhaps later in the deposition I will remember.” I have had clients who have been unable to remember certain facts and later, during the deposition remembered them. My instructions to my clients prior to the deposition was that if he or she remembered something that they either forgot or should have said during the deposition, then at some point during the deposition he or she should simply speak up and tell the attorney what was forgotten.

2. Stimulants. Stay away from the coffee and other stimulants, especially alcohol. Caffeine will give you a boost, but then comes the crash. Also, caffeine can also make you nervous, fidgety, and can even make you forget things that you really did need to say during your deposition. Also, do not drink a lot of water or pop because at some point you are going to develop a need to go to the bathroom and you are going to be distracted by that. However, you need to know the deposition is a rather informal process, and if you have a need to go to the bathroom all you have to do is say, “could we take a short break so I can go to the bathroom?” In the introduction by the other attorney they almost always tell you about that, but if they do not, realized that you are not in a prison and you have the freedom to go to the bathroom anytime you want, as many times as you want.

3. Short and Sweet. Keep your answers short and to the point. You do not need to tell the other attorney everything you know on the subject. The question asked by the attorney is not your opportunity to tell everything you know on the subject. Simply respond to the question and nothing else. If the answer calls for a “yes or no,” then respond with one word, not several paragraphs. Your answer to a typical “yes/no” question should be one of three responses: (1) yes; (2) no; or (3) I do not recall at this time. (Or, that you do not recall at this time, but perhaps will later, or with some help from a particular document, you could supply the answer.)

4. Speculation. Never speculate. You do not want to be guessing at the answers, and you do not ever want to speculate about an answer. You are there to tell what you know, not what you guess, or what you think might have happened, or what you think might be the answer. That really is a good thing for you (to not have to speculate) because the burden on you is pretty simple: you only have to tell what you know, not what you think you know. You are not in the position where you have to make up stories to fit the facts. Indeed, do not ever do that in a deposition. If you are asked a question concerning a subject or facts or an incident or events of which you have no knowledge about, and the question is phrased as a “yes/no” question, then simply say: “I do not know anything about that.” It would be impossible for you to say “yes or no” to such question. You need to be alert to those kinds of questions. (But, realize that if you miss it, your attorney is not likely to miss it and will correct the situation, so rest easy. Your lawyer has got your back.)

5. Be Alert. Here is a little trick some lawyers will do. A lawyer will ask a question and then later will come back and in his or her question, will be buried facts that are incorrect and will be designed to get you to give a simple yes or no to the question. However, what you should do is either ask for the question to be rephrased, or simply tell the lawyer: “I do not know how to answer your question the way it is phrased because one part of it I can answer one way and the other part I can answer another way.” (Realize your lawyer will be far more alert than you are for these kinds of questions and should object, which will alert you to the problem.)

For example, suppose the lawyer had asked you a question earlier as to the defendant striking your vehicle, and you answered yes to that question. Then, later in the deposition the lawyer asked you this question: “Now, you said you had the green light when your vehicle struck the defendant’s vehicle, correct?” Clearly, that is a question your attorney would object to as being incorrect and is in fact misleading, since it misstates the facts testified to, but if your attorney misses it, then you need to make sure that you are not quick to answer that question as a yes. Instead, you would want to say, “Counsel, the defendant struck my vehicle. I did not strike his vehicle.” Feel free to correct the attorney’s misquotes of yourself or makes a misstatement of the facts.

What I am trying to do here is give you some assurance that you have more latitude in the deposition than most deponents (that’s you)  know. You have the right to correct the attorney. You have the right to tell the attorney that he is wrong, or that he misstated a fact. Do not be shy. It is your case, and whether you are a defendant or whether you are a plaintiff, you have every right to make sure the record is correct. In short, stand up for yourself. If you are a lady, pretend that you are in your kitchen and everyone there is a stranger. It is your house. You have every right to control the situation, and you can control the deposition in many respects. You can correct misstatements, whether they are yours or the lawyers. However, do not get into arguments or debates with the lawyer. Never do that. There are several reasons why you should not do that, which I will not get into here, but one of them is a very simple one: the more you speak, the better it is for them, so the less said the better. The more you speak, the more apt you are to say something your attorney would have preferred you not say.

You can ask for a break. And, if the circumstances warrant it, you could even ask to continue the deposition. (Realize, there might be some monetary costs to doing that, but if you had an emergency, or if you felt ill, or you had some other good reason, you have every right to ask that the proceedings be put on hold and that the deposition be continued to the next day, or to the next convenient date of the parties.)

6. Personal Notes. Leave them home or give them to your lawyer. Technically, if you pull notes out of your pocket, the opposing counsel can ask for a copy of those notes. So, the best thing to do is this: if you want to make some 3 x 5 note cards with facts that are just that, facts, then you can bring those in with you and refer to them, and if they want a copy of them, fine. (Always show them first to the attorney to make sure it is okay. The lawyer may not want you to bring anything in writing to the deposition!)  Caution:  do not bring in notes that might contain information that your attorney would prefer they not have, or information that you would prefer they not have, since your note book might have personal information in it as well as information about your case.

7. Tell the Truth. You do not have to volunteer every fact that you know to be true, but you are obligated to respond truthfully to every question put to you in the deposition. Do not be afraid of the truth. Every lawyer knows that there are some facts in his or her case that the attorney would prefer never see the light of day. However, most lawyers will not take a case if there is a fact or facts in existence that, if known, would destroy their case. So, even if you have some things that you would rather the other side did not know, do not be afraid of those facts,  and do not be afraid to answer truthfully to those questions that bring those facts out. Your lawyer’s job is to mitigate the damage those facts might do to your case. That is not your job. So, you have nothing to fear, if you tell the truth. It is a matter of “what is, is.”

Look at it this way. If you try and shade the truth, or you lie, and they have information or a witness that will show you have lied, now you have reason to fear. Now, you have weakened your case, perhaps even destroyed it...all because you tried to hide the truth and the lawyer caught you in a lie. Your credibility is now in question with the judge and/or a jury. Realize that while the facts might hurt your case, it is unlikely they will destroy your case, so quit worrying about it. But, even if you are a defendant in a case and you have facts that are really bad, again, it is your lawyer’s job to mitigate those bad facts, not yours.  Don’t even try (unless your attorney has prepared you to respond to such facts, then of course, you should do as you’re instructed). It is when persons being deposed lie, or try and manipulate the truth that they get into trouble and things then get very tense. Your attorney will usually have already gone over those “bad” issues with you prior to the deposition.  You have to look at some facts in a “what is, is” fashion. You’re just not going to be able to hide the “elephant in the room,” so usually, the best policy is, don’t even try.

Final Thoughts. Most depositions are pretty low-key. The lawyer will usually be soft-spoken, courteous, and will want you to be relaxed and comfortable. His job is to extract information from you, to see what you know, and what you do not know, and to determine the facts as you know them. Now, there are other purposes for a deposition (such as to see what kind of a witness and trial you will make), but all in all, it is a rather boring, sometimes tedious process. If you go into a deposition with the attitude that you are going to treat those lawyers like they were people you had invited into your home, and they were asking you questions about your favorite subject, you will do fine. Remember, they are  people, just like you. They want to know what you know, and what you do not know. They want to know who the witnesses are going to be, what the relationship is between you and the witnesses, if any. They want to know what your damages are, or if you are a defendant, they are going to want to know why you did what you did, why you did not do what you did not do.

The Deposition Setting

Most depositions are free of drama, though I once saw an attorney who is now a federal judge, climb up on top of the table, objecting to some rather underhanded tactics by one of the other lawyers in the case. But, that is rare. You will go in, sit down at the head of a table, and the court reporter who will be near you, will swear you in, and then the attorney will introduce himself or herself, and will begin asking questions. Your attorney will be seated near you, and if the other attorney breaks the rules by asking misleading questions, or misstating the facts, or doing anything else wrong, then your attorney is there to put a stop to it. Usually, that is done by an objection. You do not have to do anything but sit there and be silent and wait until the lawyers finish their little skirmish about the rules. Then, your attorney will either instruct you to answer the question, or will instruct you do not answer the question, or the other attorney will simply withdraw the question and move on.

You should approach your deposition relaxed. It is not the end of the world. And even if you do poorly, life goes on and you will survive this, as many tens of thousands before you have survived. You’ll walk out the door seeing a brighter future than when you went inside.

 

 

 

 

A GOOD EXAMPLE OF A TYPICAL DEPOSITION

 

 

 

 

 

 

 

 

 



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