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What To Do If You’re Being Sued For Debt

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debt lawsuit

If you’ve stopped making payments on a debt, and it’s been in collections for a while — and especially if you’ve been avoiding the debt collector’s attempts to contact you — it’s possible that you may get sued for that debt.

Not all unpaid debts will end in a lawsuit. Debt collectors are able to continue collection actions indefinitely, and only in certain cases will a lawsuit ever materialize.

“It’s always going to be a cost-benefit analysis by the creditor,” said Ed Boltz, a consumer debtor’s attorney in North Carolina. “The bigger the debt, the more likely it is that you’ll be sued. And when you owe money to an individual or small business, you are far more likely to be sued because they tend to take that debt personally.”

Being sued for debt can be a scary and intimidating process, but this article will help you understand how it works and what you can do to contest the charges.

What happens when you’re sued for debt

One of the keys to successfully challenging a lawsuit is simply understanding how the process works so that you know what to expect and how to respond.

The bad news is that you’ll have to do some leg work to get up to speed on the particulars for your state, as the specifics vary based on where you live.

“The details depend tremendously on what state you’re in,” said Boltz. “The process in North Carolina is different than the process in South Carolina, which is different than it is in California.”

The good news is that there are a few general steps that apply to most situations.

Timeline: When you’re sued for debt

What happens

What it means

Creditor files a complaint with the court

This officially begins the lawsuit. The complaint explains the charges against you.

You receive a summons and the complaint

The summons provides a deadline for your response.

You file an answer

This begins your defense and avoids a default judgment against you.

There is a trial or the case is dropped

The creditor can either drop the lawsuit or it will go to trial, typically in small claims court.

A judgment is made

The judge makes a decision, which will either relieve your responsibility or allow the creditor to begin collection actions.

Creditor files a complaint with the court

The lawsuit starts when the creditor files a complaint, typically in state court.

“Credit card debt, medical bills, those sorts of debt are sued in state courts,” said Boltz. “People are very rarely sued for debt in federal court.”

The complaint primarily explains who the creditor is suing, what debt they’re suing for, and how much they think you owe.

You receive a summons and the complaint

Once the complaint is filed, you’ll receive both the complaint and a summons that typically requires you to respond within 30 days. According to Boltz, these are usually mailed to you, though they can sometimes be delivered by a law enforcement officer or process server.

Boltz also warned that trying to avoid the delivery of these notices is a bad idea.

“A lot of people, if they’re sent the summons by certified mail, will attempt to ignore it and refuse to accept their mail,” said Boltz. “But all that ends up happening is that they have to get service to you through some other means, whether that means sending someone to your home or work or even putting it in the newspaper, all of which can be even more embarrassing.”

You file an answer

Once you receive the summons, Boltz said, you typically have 30 days to file an answer with the option to request an extension for another 30 days.

You will now have your chance to respond to the creditor’s claims and begin mounting a defense, and it’s at this point that Boltz recommends consulting with an attorney.

“The first thing you should do when you’re sued is go talk to a lawyer,” said Boltz. “That’s the best way to find out what your rights are and whether you have valid defenses against that lawsuit.”

It’s important to understand that even if you don’t have a good defense, it’s still important to file a timely answer. Refusing to answer will typically lead to a default judgment in favor of the creditor, at which point they may be able to garnish your wages, place a lien on your property or freeze your bank account in order to collect on the debt.

“The bottom line is that you can’t hide from the problem,” said Boltz. “The best thing to do is address it.”

There is a trial or the case is dropped

Once you file an answer, there’s a chance that the creditor may simply drop the lawsuit.

“It’s possible that the creditor will dismiss the lawsuit and decide not to proceed,” said Boltz. “They may do the cost-benefit analysis and decide that it’s not worth moving forward.”

Of course, they might not drop the lawsuit, and the case will go to trial. Boltz explained that most suits are handled in small claims court and follow a relatively standard procedure:

  1. The plaintiff (i.e. the creditor) presents their evidence.
  2. You are allowed to cross examine any witnesses they call.
  3. You present your evidence to either show that the debt is not yours, the amount is not correct, the statute of limitations has passed or any other defense.
  4. The plaintiff is allowed to cross examine your witnesses.
  5. Each side presents its closing argument.

A judgement is made

Once each side has made their closing argument, the judge — or, in rare cases, the jury — makes a decision and hands down a judgment.

If you win the judgment, by law you are no longer responsible for that debt. Unfortunately, that doesn’t mean that you’re 100% in the clear in terms of dealing with collection activities.

“The problem with debt collection is that often that debt will be sold to another debt collector who may or may not know that you’ve won that lawsuit,” said Boltz. “They may try to collect on it again, but at that point they’ve clearly violated the law, and you may be able to countersue and get some damages from them.”

If you lose the judgment, the creditor will have the right to begin collection actions against you. Depending on the state in which you live, that could include garnishing your wages, placing a lien on your home or other real property and even garnishing funds or freezing your bank account.

According to Boltz, judgments are good for 10 years and can be extended for another 10 years, and any unpaid amounts will sit there and accrue interest. So even if your home doesn’t currently have enough equity to cover your debt, the creditor can place a lien on your home, wait it out, and eventually either force you to sell once you do have enough equity, or demand repayment when you decide to sell it yourself or refinance your mortgage.

5 steps to take when you’re sued for debt

With that much on the line, what can you do to give yourself the best chance to win the lawsuit and avoid those collection actions?

Here are five steps you should take if you’re sued for debt.

1. Read the summons and complaint

First things first: Accept delivery of the summons and complaint and read them both thoroughly. Ignoring them will only lead to a default judgment against you, while reading and understanding them will help you meet deadlines and mount a convincing defense.

“When you get those papers, make sure you read them,” said Boltz. “Hiding from them doesn’t do you any good and is only likely to make you owe more money later on.”

Here are some important questions to ask as you read them over:

  • Who is suing you?
  • What is the debt they are suing you for?
  • How much are they claiming you owe?
  • Where has the suit been filed?
  • What is your deadline for filing an answer?
  • Where does that answer need to be filed?

2. Review your documentation

Once you know what your creditor’s suing you for, you can review your own documentation about that debt.

You may find that it’s not actually your debt, in which case you have a strong defense. And even if it is your debt, any information you have about when you took it out, payments you made and balances you owed will be helpful.

3. Consult an attorney

According to Boltz, hiring an attorney will give you the best chance to successfully challenge the lawsuit by making sure that you explore all possible angles.

“There are all kinds of valid defenses, from something as basic as ‘This isn’t my debt’ to something more complicated, like an application of the statute of limitations,” said Boltz. “A lawyer may also be able to find out that some of the ways in which the debt collection and the lawsuit were done were wrong, and you may have counterclaims against them.”

The Consumer Financial Protection Bureau suggests trying to find legal aid in your area, so be sure to look into opportunities to obtain free legal advice.

4. File an answer

No matter what, you want to file an answer by the deadline indicated on your summons. This allows you to avoid default judgment and gives you the chance to challenge the lawsuit in front of a judge.

5. Show up to court

Finally, if the lawsuit is brought to court, you need to show up and present your defense, no matter what. Again, showing up is the only chance you have to defend against the lawsuit and avoid a default judgment — so it’s an important step, even if you think your odds are low.

What to do if you’re held responsible for the debt

“If you get a judgment against you, you need to figure out how you’re going to pay it,” said Boltz. “Whether that’s by repaying it, negotiating a settlement, refinancing your home or filing bankruptcy.”

If you find yourself in this situation, check out some of MagnifyMoney’s free resources to help you evaluate your repayment options, including a guide to debt repayment, an overview of debt consolidation options and tips on how to negotiate a settlement on credit card debt.

In some cases, bankruptcy may even be the right move.

“If this is one part of a larger financial problem, bankruptcy may be the better financial option because it wipes the slate clean,” said Boltz.

And just as with the initial lawsuit, it’s important not to ignore the debt or simply refuse to repay it.

“If you don’t pay it, it will sit on your credit report for 10 years, and if they renew it, it counts as another lawsuit for another 10 years,” said Boltz. “You’re taking a beating on your credit report that in many ways is worse than a bankruptcy, because it shows that you have a judgment and you’re not dealing with it.”

Timely action is the key

Getting sued for debt can be nerve-rattling, but the good news is that you can often mount a valid defense as long as you understand the process and know how to respond.

Simply by filing timely and accurate responses, you greatly increase your chances of winning your case and avoiding repayment altogether.

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Can Student Loans Be Discharged in Bankruptcy?

Editorial Note: The content of this article is based on the author’s opinions and recommendations alone. It has not been previewed, commissioned or otherwise endorsed by any of our network partners.

student loan bankruptcy

Student loans are a large and growing problem.According to the Federal Reserve, student loan debt totaled over $1.5 trillion as of June 2018, up from $1.15 trillion just five years earlier. Over 44 million Americans have some level of student loan debt, and 11.2% of that debt is either in default or at least 90 days delinquent.

It’s no wonder that so many people are struggling to pay bills and save for the future under the weight of their student loans.

If you’re struggling with student loan debt yourself, you’ve undoubtedly wondered how you can get relief. And if you’re really desperate, you may have even considered bankruptcy.

Student loans are more difficult to discharge through bankruptcy than other types of debt, but it isn’t impossible. This article will explain how it works, the steps you need to take in order to discharge your student loans in bankruptcy and alternative strategies you should explore first.

Can you file bankruptcy on your student loans?

While it is possible to file bankruptcy on your student loans and have the debt discharged, it’s a difficult process with strict requirements that can be challenging to meet.

The baseline requirement is proving to the courts that repaying your student loans presents an “undue hardship,” a standard that is interpreted differently depending on where you live and which court happens to hear your case.

“It’s a mushy set of criteria that doesn’t lend itself to a lot of uniformity,” said Adam S. Minsky, an attorney who specializes in helping student loan borrowers. “The cases that I’ve seen come out with favorable decisions tend to be older borrowers, borrowers who have very long periods of unemployment or underemployment, and sometimes there are health issues, injuries, disabilities, things like that.”

Why your student loans are unlikely to be discharged

In the 1970s, a popular narrative began to emerge in the media about borrowers who were taking out student loans to attend college and then playing the system to get them discharged after they graduated.

There was no real data to support this claim, but in 1976, Congress acted on it anyway and passed a law that made it almost impossible to discharge federal student loans until either five years had passed since default or you were experiencing undue hardship. The waiting period was extended to seven years in 1990. In 1998, it was simplified to require undue hardship without a time element.

Then, in 2005, Congress updated the law once more to subject private student loans to the same undue hardship criteria as federal student loans.

At this point most courts, though not all, use something called the Brunner test to evaluate undue hardship.

What is the Brunner test?

The Brunner test looks at three factors to decide whether a particular borrower is facing an undue hardship.

First, you have to demonstrate that you are not able to maintain a minimum standard of living while repaying your student loans.

“This is typically the easiest one to prove,” said Jay Fleischman, a student loan lawyer. “You’re not required to be living like a pauper, but by the same token it’s presumed that you’re not going to be living a life of opulence.”

Fleischman said that while every judge interprets this standard differently, things such as paid sports for your kids, private school instead of public school and excessive cable packages may be deemed unnecessary.

Second, you must show that your situation is likely to persist for a significant portion of the repayment period through no fault of your own. That means that you can’t use your current income as an argument if there’s the opportunity to earn more elsewhere, and you can’t use extended unemployment if it either ended or is likely to end soon.

“It’s forward-looking criteria,” said Fleischman. “Courts will look at the marketability of your skills and the quality of the education you’ve received to determine your earning potential.”

Third, you must have made good faith efforts to repay your student loans prior to filing for bankruptcy.

“In some courts, for a federal student loan, that will mean that you’ve looked at one of the income-driven repayment (IDR) options,” said Fleischman. “For a private student loan, it might mean that you’ve attempted to rework your payments or tried for forbearance.”

Then there are some courts, specifically those in the 1st and 8th circuits, that don’t use the Brunner test at all.

“Some courts use what’s called ‘totality of the circumstances,’ which jettisons that three-part test in favor of looking at the totality of your situation,” said Fleischman. “It tends to be a slightly easier test but it’s not used very widely.”

At the end of the day, even when the Brunner test is used, the specific standards that need to be met to prove undue hardship are inconsistent and difficult to narrow down.

“What that test looks like and how it applies varies depending on where the borrower lives and what court they’re in,” said Minsky.

If you’re successful at proving undue hardship, the court can discharge your loans completely or grant a partial discharge. It can also simply change the terms of your loans to make them easier to pay, such as lowering the interest rate.

How to get your student loans discharged

If you believe that trying to get your student loans discharged through bankruptcy is the right move, here are the steps.

1. Hire a lawyer

While it is not absolutely necessary to hire a lawyer, Fleischman said that doing so is a good idea.

“If you’re going to file for bankruptcy to seek a discharge of those student loans, understand that it is very complicated and very skill-intensive,” said Fleischman. “An attorney will help you through that process.”

However, Fleischman also warned that you don’t get those attorney fees back if you are unsuccessful at getting your student loans discharged, which means that you need to be careful about taking on the extra expense when the odds of winning a judgment are low.

The National Consumer Law Center provides some resources to help you find an attorney.

2. File a bankruptcy case

If you do want to move forward, the next step is filing a bankruptcy case.

The Administrative Office of the U.S. Courts provides guidance on the paperwork needed to file, and it also advises that you check with your local court to see if there are other local forms you need to file.

3. File an adversary proceeding

Once your bankruptcy case is filed, you then need to file a separate lawsuit within the bankruptcy court against the lender of your student loan. This lawsuit is called an adversary proceeding and it asks the court to find that repaying your student loans would present an undue hardship.

“When you’re dealing with student loans you’re actually dealing with two separate cases, one living within the other case,” said Fleischman, explaining how the adversary proceeding acts as a separate case within the broader bankruptcy case.

You must file a complaint in order to initiate an adversary proceeding. This complaint identifies the court in which it’s being filed, the parties to the complaint, a summary of the situation and reason for the complaint, and the specific relief you are seeking from the court.

The National Consumer Law Center provides a sample of what this complaint could look like.

4. Go through discovery

Discovery is the process of gathering evidence and exchanging information between parties to the lawsuit. It can be complicated, and it is one area where having an attorney can be a big benefit.

“Once you’ve filed the case with a summons and complaint, the lender has the opportunity to answer and to conduct discovery, as do you,” said Fleishman. “This could involve the exchange of documentary information, depositions, expert testimony and the like.”

It’s also worth noting that this process can be time-consuming and expensive. The National Consumer Law Center estimates that the entire litigation process can require a total of 40 to 100 hours, and according to Fleischman, you can expect to pay anywhere from $4,000 to $15,000, on top of attorney fees.

5. Proceed to trial and judgment

After discovery, the case goes to trial, evidence is presented from both sides, and the judge eventually makes a decision.

If you are not awarded a discharge, Fleischman said that you are allowed to appeal. But doing so is both rare and likely unsuccessful.

5 alternative ways to deal with your student loan debt

While bankruptcy can be an effective tool, and in some cases the best way to get out from under the weight of your student loans, it generally shouldn’t be your first option.

Here are five alternative approaches to consider before filing for bankruptcy.

1. Revisit your budget and spending habits

Given that you’ll have to prove to the court that your income isn’t enough to meet your expenses, it makes sense first to take a close look at your budget and figure out if there are any changes you can make that would help you afford your student loan payments.

“I always tell my clients to first look at their spending and determine where their money leaks are and try to plug those leaks,” said Fleischman. “Determine where your expenses can be reduced and start there.”

2. Consider IDR

If you have federal student loans, you may be eligible for IDR, in which your monthly payment is adjusted according to your income and family size. The less you make and the bigger your family is, the less you’ll have to pay.

There are downsides to IDR, such as the fact that you may end up paying more interest over time and that it may take longer to get out of debt. But if you’re truly unable to afford your monthly payment, those downsides may be worth the immediate relief.

3. Work toward loan forgiveness

One of the additional benefits of IDR plans is that they can eventually lead to loan forgiveness.

If you work for the government or a qualifying nonprofit, you may be eligible for Public Service Loan Forgiveness, which forgives your student loan debt tax-free after 10 years of eligible payments.

Otherwise, you may be eligible for forgiveness after 20 to 25 years, depending on the type of IDR plan in which you enroll. The amount forgiven would be taxable, but it could still provide significant relief.

4. Consider refinancing private student loans

Refinancing your private student loans could allow you to secure a lower interest rate and extend your repayment period, either of which could lower your monthly payment.

“You need to be careful about it because you want to make sure that you’re actually saving money instead of spending more,” said Fleischman. “But this may be a situation in which refinancing makes sense.”

Fleischman did warn against refinancing federal student loans, primarily because of the protections offered by the federal government. These protections are lost in refinancing.

5. Strategic default and settlement

In some cases, Fleischman argued, it might be a good idea to strategically default on private student loans in order to create a settlement opportunity.

“Settlement of any debt is seldom an option when you are paying the debt according to the terms and conditions of the loan,” said Fleischman. “It’s just not the way that business is transacted. In those situations, a strategic default may make some sense.”

Fleischman warned that there are negative consequences to default, such as the impact on your credit score, the collection actions that would be taken against you and the fact that there is no guarantee that you will be able to settle at all, nevermind along favorable terms.

But if you’re hoping for a settlement instead of entering bankruptcy, defaulting may be the best way to create that opportunity.

Proceed with caution

At the end of the day, the reality is that discharging your student loans through bankruptcy is a difficult and unlikely proposition.

That doesn’t mean that it should always be avoided, as there are situations in which it’s the right move. You just need to go into the process with your eyes wide open.

“Make sure that you investigate all of your other options first,” said Fleischman. “And if you are going into bankruptcy, make sure you understand completely what you’re getting into and that you have a realistic sense of what your opportunity for success is going to be.”

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3 Times a 401(k) Loan Can Be a Good Idea

401k loan

Updated: Oct 24, 2018

If you hear the words “401(k) loan” and immediately think to yourself “ooh, that sounds like a bad idea”, good for you! You’re on the right track.

In most cases borrowing from your savings isn’t a smart move, particularly when it’s from an investment account like your 401(k) that’s meant to sit untouched for decades so that it can grow and eventually allow you to retire.

But a 401(k) loan is unique. We covered the ins and outs of how it works in a previous post, but here are the basics:

  • The loan comes directly out of your 401(k) investments.
  • Repayment is made through automatic payroll deductions.
  • Both the principal and interest are paid back into your 401(k), so you truly are borrowing money from yourself.
  • The loan is typically easy and quick to get.

The fact that you pay the interest back to yourself is especially unique and makes 401(k) loans attractive in certain situations.

So while you should proceed with extreme caution when considering a 401(k) loan, and while in most cases there are better options available to you, here are three situations in which a 401(k) loan can be a good idea.

1. Increase your investment return

There are certain situations where you can use a 401(k) loan to increase your overall investment return. Here’s a hypothetical example showing how it can work.

Let’s say that the following things are true:

  • Your 401(k) money is invested partially in a stock mutual fund and partially in a bond mutual fund.
  • The bond mutual fund currently has an SEC Yield of 1.97%, meaning you can expect about a 1.97% return from that fund going forward (though there are no guarantees).
  • You can borrow money from your 401(k) at 4.5%.

Given that scenario, here are the steps you could take to increase your expected investment return while only adding a small amount of risk:

  1. Take out a 401(k) loan, borrowing money from the bond portion of your account.
  2. Put the loan proceeds into a taxable investment account and invest it in the exact same bond fund (or something similar).
  3. You will earn the exact same return on the bond fund as you would have in the 401(k), less the cost of taxes you have to pay on any gains.
  4. As you pay back your 401(k) loan, the 4.5% interest is essentially a 4.5% return since it’s going right back into your 401(k).

In other words, you’re getting essentially the same return on your bond fund in the taxable account, minus the tax cost. But you get a higher return in your 401(k) because the interest rate is higher than the expected return on the bond fund.

And since your bond investment is unlikely to fluctuate too much (though it can certainly fluctuate some), in a worst-case scenario where you lose your job and have to pay the loan back in full within 60 days, you will likely to have the money available to do so.

Here are a few things to keep in mind as you consider this approach:

  • The more expensive your 401(k) is, the more likely this is to work out in your favor. That’s because you can choose a lower cost bond fund in your taxable account and save yourself some fees over the life of the loan.
  • The higher your tax bracket, the less advantageous this is since the tax cost in the taxable investment account will be higher.
  • Make sure you’re not sacrificing your ability to contribute to your 401(k), and definitely make sure you’re not missing out on an employer match.

2. Paying off high-interest debt

If you have high-interest debt, taking a 401(k) loan to pay it off could be a good idea.

Before you do so, make sure you’ve exhausted all other options. Do you have savings you could use to pay it off? Are there any expenses you could cut back on so you could put that money towards your debt? Are there any creative ways you could make a little extra money on the side?

Any of those options are better than a 401(k) loan simply because they don’t require you to borrow against your retirement and they don’t come with the risks that a 401(k) loan presents.

But if you’ve exhausted those other options, paying off high-interest debt with a 401(k) loan has two big benefits:

  1. Your 401(k) loan interest rate is likely lower than the rate on your other debt.
  2. You pay the 401(k) loan interest to yourself, not someone else.

The big risk you run with this strategy is the possibility of losing your job and having to pay the entire 401(k) loan balance back within 60 days. If that happens and you’re not able to pay it back, the remaining balance will be taxed and subject to a 10% penalty. That outcome is likely much more costly than your high-interest debt.

3. Financial emergency

If you’re in a situation where you absolutely need money for something and you don’t have the savings to handle it, a 401(k) loan may be your best option.

Here’s why:

  • It’s quick. You can often get the loan with just a few clicks online.
  • There’s no credit check. You’ll be able to get it even if you don’t have a great credit history.
  • It likely has a relatively low interest rate and you pay the interest back to yourself.

In an ideal world this is exactly what your emergency fund would be there for. But of course life happens and a 401(k) loan can be a good backup plan.

Why you may want to consider a personal loan instead

To be sure, borrowing from your 401(k) comes with some significant downsides, even in the situations above.

First and foremost is the fact that your 401(k) is meant to be a retirement savings account, and borrowing from it in the short term at least temporarily sacrifices the growth of that money. Then there’s the fact that if you leave your company, you’ll typically have to pay back the loan within 90 days or else the remaining balance is considered a withdrawal subject to taxes and penalties.

On top of all that, your employer may not allow you to make 401(k) contributions as long as you have an outstanding loan balance, which further sacrifices your ability to save for retirement.

With those downsides, it often makes sense to consider taking out a personal loan before resorting to a 401(k) loan. You can borrow the money you need without sacrificing your retirement savings and you aren’t running the risk of having to immediately pay back the entire balance if you lose your job.

The biggest disadvantages of a personal loan compared with a 401(k) are the stricter credit requirements and the potential for a higher interest rate. There may also be an origination fee that increases the cost of the loan.

But at the end of the day, a personal loan is often the safer option because it avoids the biggest risks that come with a 401(k) loan.

Pros of a personal loan

  • They are unsecured debt, which means that the bank can’t come after your investment accounts, your home or any other asset if you aren’t able to make payments.
  • You aren’t sacrificing your retirement savings.
  • You won’t have to pay back the entire balance if you lose your job
  • Most personal loans have fixed interest rates with fixed monthly payments, which makes budgeting easier.

Cons of a personal loan

  • Depending on your credit score, income, debt-to-income ratio and other factors, a personal loan may come with a higher interest rate than a 401(k) loan. Interest rates on personal loans are as low as 3.99%.
  • Some personal loans will have an origination fee.
  • Unlike a 401(k) loan, you aren’t paying interest back to yourself.
  • At the end of the day, a personal loan is still debt that needs to be repaid and is costing you in the meantime.

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Should you go with a 401(k) loan?

401(k) loans come with significant risk and should almost never be your first choice. The hit to your retirement savings is real, as is the risk of a job loss that would force you to either repay the loan or deal with the penalties, so it should typically only be considered after all other options have been exhausted.

But in the right situations a 401(k) loan be helpful, and may even lead to better returns. As long as you proceed with caution and make sure you understand exactly what you’re getting into, a 401(k) loan can be a valuable tool in your financial arsenal.

Advertiser Disclosure: The products that appear on this site may be from companies from which MagnifyMoney receives compensation. This compensation may impact how and where products appear on this site (including, for example, the order in which they appear). MagnifyMoney does not include all financial institutions or all products offered available in the marketplace.

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