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Washington Nails Global Client Solutions as a Debt Adjuster. Game Changer.

Yesterday the Supreme Court of Washington issued an opinion in the Carlsen v. Global Client Solutions case in Washington State. You can read more about that case here and here.

At the heart of the case that continued to the Supreme Court of Washington was the matter if Global Client Solutions was culpable as a debt adjuster even though they portrayed themselves as a third party escrow company. Additionally, the point was raised that Global Client Solutions aided and abetted companies to take advantage of consumers.

Yesterday the rulings came down and they are brutal against both Global Client Solutions and Rocky Mountain bank & Trust.

This case illustrates the creativity of businesses attempting to circumvent
regulation. As cats are drawn to cream, many for-profit debt adjusters will be attracted to the most unsophisticated of consumers. Despite the recent federal rule, I fear that until the Washington legislature prohibits debt adjusting for profit, consumers in Washington will continue to suffer. In my view, the chronic and systemic abuses in the Washington debt adjusting industry deserve the attention of the Washington State Legislature. – Justice Tom Chambers

Justice Chambers went on to say:

I fully concur with Justice Fairhurst’s measured, well reasoned majority opinon. I write separately, however, to stress that the same evils our legislature sought to avoid in decades past by regulating the debt adjustment industry still lurk.

As our legislature knew long ago, debt adjusting “is noted for its historic abuse and questionable practice and is outlawed or regulated in most States.” Wash. Legis. Budget Comm., Performance Audit: Debt Adjusting, Licensing and Regulatory Activities, Report No. 77-13, at 3 (Jan. 20, 1978) (on file with Wash.State Archives, H.B. 86, 46th Leg., Reg. Sess. (Wash. 1979)). Abuse of debtors has been so troubling historically that when the original 1967 legislation was set to sunset, then Attorney General Slade Gorton’s consumer protection and antitrust division counseled the legislature that

[i]t is our considered opinion that debt adjusting for profit in this state should not be regulated but rather should be prohibited. While it is highly unusual for this office to recommend such a step in view of our strong support for competition and free enterprise with a minimum of regulation, our experience in this area indicates that this field, even with regulation, is open to abuse.

Wash. Legis. Budget Comm., Sunset Audit Program and Fiscal Review of Debt Adjusting, Licensing and Regulatory Activities app. 1 (Preliminary Report Sept. 17, 1977) (on file with Wash. State Archives, Substitute H.B. 564, 45th Leg., 1st Ex. Sess. (Wash. 1977)). The same sunset audit noted that “[a]n estimated 50 percent of clients signing up for a program never complete it.” Id. at 18.

Time has seemed to only make these numbers worse. According to the debt settlement industry’s own statistics, the dropout rate is almost 66 percent. Of that 66 percent, 65 percent leave the programs with no settlements. Telemarketing Sales Rule, 75 Fed. Reg. 48,458, 48,472-73 (Aug. 10, 2010). As the Federal Trade Commission (FTC) recently observed:

[D]ebt settlement is a high-risk financial product that requires consumers simultaneously to pay significant fees, save hundreds or thousands of dollars for potential settlements, and meet other obligations such as mortgage payments. Failure leads to grave consequences — increased debt, impaired credit ratings, and lawsuits that result in judgments and wage garnishments.

Id. at 48,484. “Consumers drop out of debt relief programs for many reasons, but the record shows that providers’ practice of charging substantial advance fees is a significant cause.” Id. at 48,485. Because of this, and because of the “deceptive and abusive practices of debt relief service providers,” the FTC has banned advanced fees for debt settlement companies, reducing the incentive and opportunity for debtor abuse. Id. at 48,465; 16 C.F.R. § 310.4. Those who enter a debt adjustment program but eventually drop out are generally much worse off than if they had not participated in the program at all. Not only have they paid substantial fees to a debt adjuster, but their debt problems continue to grow and spiral out of control. – Source

The full court opinion, in which all the Justices agreed, came to the conclusion that:

GCS is a debt adjuster, and GCS is not exempt under RCW 18.28.010(2)(b) because GCS is not a bank or another listed entity. Debt settlement companies that work with GCS and RMBT are likely subject to the debt adjusting statute’s fee limitations, depending on whether they are debt adjusters providing debt adjusting services. Because RCW 18.28.185 makes aiding and abetting violation of the debt adjusting statute an unfair or deceptive act or practice in the conduct of trade or commerce under the CPA, we need not consider whether an implied cause of action for such conduct also exists. – Source

The court spared no effort to be clear in its opinion. “We note that an aider and abettor may be criminally and civilly liable under the debt adjusting statute even if exempt under RCW 18.28.010(2) from the statute’s primary requirements for “‘[d]ebt adjusters,’” such as fee limits and disclosure rules. For example, while RMBT is likely exempt from the debt adjusting statute’s primary requirements under RCW 18.28.010(2)(b) because it is a bank, RMBT still commits a crime and an unfair or deceptive act or practice in the conduct of trade or commerce if it aids and abets a debt adjuster in violating those requirements.” – Source

Freedom Debt Relief was a named party and the one that had sold the debt settlement program to the consumers that involved Global Client Solutions. Wisely, Freedom had settled their part of the case earlier and extricated themselves from this later action.

The ruling of the Supreme Court focused on four questions:

  1. Is a for-profit business engaged in “debt adjusting” as defined in RCW 18.28.010(1) when, in collaboration with debt settlement companies, it: a) establishes and maintains a custodial bank account in its name; b) solicits debtors’ establishment of a sub-account to receive and hold periodic payments to be used to pay debt settlement fees and pay settlements with creditors as negotiated by a debt settlement company; and c) as custodian for the debtor, receives and holds the debtor’s periodic payments in a sub-account, paying from that account debt settlement fees and negotiated settlements with creditors?

    The court said “It is unreasonable to suggest that the legislature intended to allow companies whose activities fit the broad statutory definition of “debt adjusting” to nonetheless escape regulation by splitting the traditional functions of a debt adjuster between multiple entities.”

    Noteworld attempted to come to the aid of Global Client Solutions in this matter by filing an amicus brief to help Global Client Solutions.

    “GCS and amicus NoteWorld LLC also argue that GCS is not engaging in debt adjusting because new Federal Trade Commission (FTC) rules implementing the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108) distinguish between debt relief services and account administrators. 16 C.F.R. § 310. Given that the plain language of the debt adjusting statute is unambiguous and that the statute’s legislative history reinforces the plain language interpretation, we need not look beyond Washington law in our interpretation. We also decline to address the possibility of preemption, as it is beyond the scope of the district court’s certified question.”

  2. Does the exclusion found at RCW 18.28.010(2)(b) apply to a for-profit business described in Question No. 1?

    Washington maintains a list of entities that would be exempt as debt adjusters under their statue and both Global Client Solutions and Noteworld made the point they, by extension, should be exempt because they either act as agents of a bank or are money transmitters which are subject to federal regulation under the Bank Secrecy Act.

    The exempted entities in Washington are:

    [a]ny person, partnership, association, or corporation doing business under and as permitted by any law of this state or of the United States relating to banks, consumer finance businesses, consumer loan companies, trust companies, mutual savings banks, savings and loan associations, building and loan associations, credit unions, crop credit associations, development credit corporations, industrial development corporations, title insurance companies, or insurance companies.

    The Court found “On the record before us, it appears the exemption in RCW 18.28.010(2)(b) does not apply to GCS. GCS is not a bank. It does not matter if GCS is a bank’s agent or if it is subject to limited FDIC authority or the rules of a private organization like NACHA. Unless GCS is one of the 13 entities listed, it is subject to the debt adjusting statute.”

  3. Do the fee limitations set forth in RCW 18.28.080 apply to for-profit debt settlement companies engaged in soliciting the participation of debtors in a debt management program involving: a) monthly set aside and accumulation of a debtor’s funds in a custodial account for the purposes of facilitating negotiated settlement of specified credit card debts; and b) negotiations by the debt settlement company, on behalf of the debtor, to secure compromise settlement of the debtor’s credit card debt, to be paid from the custodial account?

    This question essentially asks whether the debt settlement companies that work with GCS and RMBT, such as Freedom, are subject to the debt adjusting statute’s fee limitations.

    The Court ruled “Here, the debt settlement companies described in certified question three appear to be providing debt adjusting services because they manage and, if successful, eventually settle consumer debt. The fact that the legislature may not have contemplated the precise business model used by these debt settlement companies does not prevent their activities from being classified as “‘[d]ebt adjusting’” if the activities fit within the plain language of RCW 18.28.010(1).”

  4. Does the [d]ebt [a]djusting statute provide for an implied civil action against an alleged “aider and abettor” where aiding or abetting a violation of the [d]ebt [a]djusting statute is expressly made a crime pursuant to RCW 18.28.190?

    And here is where Global Client Solutions really got nailed by the Supreme Court and labels their activity and participation with debt adjustment companies and not just a civil mater but a criminal matter as well.

    “RCW 18.28.190 makes it a gross misdemeanor to aid and abet violation of the debt adjusting statute. By criminalizing aiding and abetting, the debt adjusting statute establishes that aiding and abetting its violation is wrongful conduct. RCW 18.28.185 provides an express civil remedy for violation of the debt adjusting statute: “a violation of this chapter constitutes an unfair or deceptive act or practice in the conduct of trade or commerce under [the Consumer Protection Act (CPA),] chapter 19.86 RCW.” Because the debt adjusting statute explicitly makes it a wrongful, criminal act to aid and abet violations of the statute’s primary requirements for debt adjusters, such as fee limits and disclosure rules, “a violation of this chapter,” as used in RCW 18.28.185, includes such aiding and abetting violations. The plaintiffs need not establish an implied civil cause of action to recover for aiding and abetting violations, as RCW 18.28.185 provides them a direct civil remedy for this conduct under the CPA”

This ruling by the Supreme Court of Washington may be a pivotal moment in for-profit debt settlement services if the third parties, Noteworld and Global Client Solutions may be liable for aiding and abetting criminal behavior that leads to consumers. The critical issue here is if the escrow companies are just as liable for the actions of the underlying debt settlement companies and combined the fees must fall within the state statutes, where does this leave the viability of the escrow companies to continue to process these types of accounts.

We will have to see how this will play out in other states but I would imagine Noteworld and Global Client Solutions will be looking very carefully at their exposure and liability in other states.

It will also be interesting to see if this exposure and ruling impacts the relationship between Global Client Solutions and attorney model debt settlement firms like Legal Helpers Debt Resolution since the LHDR fees in Washington far exceed the legal limits specified under debt adjusting.

Washington Nails Global Client Solutions as a Debt Adjuster. Game Changer.
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About Steve Rhode

Steve Rhode
Steve Rhode is the Get Out of Debt Guy and has been helping good people with bad debt problems since 1994. You can learn more about Steve, here.
  • Errick

    You’re really not understanding me at all.  I don’t care what the success rate is or ought to be.  Maybe a low success rate is fine, I neither know nor care.   I am talking about the companies (Care One being one but I’m sure there are others) who sign people on to a plan to take 55 to 60 cents on the dollar from the client, and then taking 15 cents for a fee knowing all the time they cannot settle for the 40 to 45 cents that are left, because they never have and they are not even trying to.  It is easier and more profitable to settle the easy third of three clients plans than get a single client through to the end.  So they engineer the plans to fail.  That’s the real problem.

    The reason I ask for one client success is because there are companies who actually do not want any of their clients to get to the finish line.  That’s my theory and nobody has disproven it yet.

  • Errick

    Absolutely they know the monthly payments, and the fee, settlement, and refund disbursements.  But you can do a lot with that.  Compare the settlement to the fee disbursements and you have the fee structure.  From that you can calculate the size of accounts being settled, and then using the refund numbers, you can get very reliable measures of effectiveness.

    Plus there is the simple measure of how long accounts are open.  If only 15 percent are even still on the rolls after 15 months, that is pretty telling.  And further, all you need is a company’s typical plan length (easy to learn) to find out what the predicted gross settlement of a plan is.

    There is definitely enough there for a skilled statistician to determine whether the payment levels supported success or failure at the inception of the plan.  If they consistently and not randomly fail, then you know you have the 50+15=55 scam.

  • Scott Johnson

    Colorado’s perspective of Debt Adjusting in 1993
     

    Debt adjusting companies provide a much needed service to the people of the State of Colorado. However, the need for a full state regulatory and licensing program is not clear. Since relatively few complaints have been registered by Colorado consumers about debt adjusters since 1963, it is appropriate to assume that consumers will not be harmed by an unregulated industry, providing the industry is required to adhere to certain mandatory consumer protection provisions. Debt adjusters have caused little apparent harm to Colorado consumers throughout their licensed history. Therefore, this report concludes that licensing of debt adjusters by the Division of Banking is not necessary to protect the public interest.
      
    Link to the full article http://www.dora.state.co.us/op

  • Scott Johnson

    Colorado’s perspective of Debt Adjusting in 1993
     

    Debt adjusting companies provide a much needed service to the people of the State of Colorado. However, the need for a full state regulatory and licensing program is not clear. Since relatively few complaints have been registered by Colorado consumers about debt adjusters since 1963, it is appropriate to assume that consumers will not be harmed by an unregulated industry, providing the industry is required to adhere to certain mandatory consumer protection provisions. Debt adjusters have caused little apparent harm to Colorado consumers throughout their licensed history. Therefore, this report concludes that licensing of debt adjusters by the Division of Banking is not necessary to protect the public interest.
      
    Link to the full article http://www.dora.state.co.us/opr/archive/93debtmanagement.pdf

  • Scott Johnson

    Robert

    This is the definition of WA DAA
    Fees for debt adjusting services — Limitations — Requirements.
    (1) By contract a debt adjuster may charge a reasonable fee for debt adjusting services. The total fee for debt adjusting services may not exceed fifteen percent of the total debt listed by the debtor on the contract. The fee retained by the debt adjuster from any one payment made by or on behalf of the debtor may not exceed fifteen percent of the payment. The debt adjuster may make an initial charge of up to twenty-five dollars which shall be considered part of the total fee. If an initial charge is made, no additional fee may be retained which will bring the total fee retained to date to more than fifteen percent of the total payments made to date. No fee whatsoever shall be applied against rent and utility payments for housing.

    General discussion of determining fee assessment in the best interest of an enrollee
     
    Example
     
    Individual Enrollee in Debt Adjusting Services
     
    Debt    $1,000 Fees 15% = $150.00 fee
     
    Assessing fees on contribution
     
    1.  Adjustment of principal balance (at enrollment)
    a- 20% Reduction – $800 contribution to repayment of $1,000 debt
    b- 40% Reduction – $600 contribution to repayment of $1,000 debt
    c- 60% Reduction – $400 contribution to repayment of $1,000 debt
    d- 80% Reduction – $200 contribution to repayment of $1,000 debt
     
    One time payment to Debt owner
     
    Debt Adjuster Receives
    a. 15% of $800 = $120.00 in fees                 
    b. 15% of $600 = $90.00 in fees
    c. 15% of $400 = $60.00 in fees
    d. 15% of $200 = $30.00 in fees
     
    Assessing Fees on Repayment
     
    15% of payment obligation of $1,000 = $150.00 in fees
     
    It appears that an opinion that fees should be assessed on contribution that a Debt Adjuster would be deterred to achieve the best results for an enrollee.

  • Robert Stevenson

    @Scott_Johnson:disqus  I just read that as you posted. So, if I read correctly.. Not just 15% of the total debt, but a limitation of 15% of one payment made. If the payment is $100, the maximum fee is $15. 
    However, doesn’t this make it impossible to earn 15% of the debt? Hypothetical, consumer finishes debt settlement program at 55% of original balance. That would mean under state law you could only collect 15% of the 55% they paid? 

  • Scott Johnson

    Robert

    one issue was pro rata here is a link to the full brief
    http://www.atg.wa.gov/uploaded

  • Robert Stevenson

    How can third party providers know “to the penny what real statistics”? They don’t know how much debt each client has… how much of it is being settled, etc. They just see, Draft, Payments, Fees without knowing the creditors/debt-load. That just be you assuming again… 

    And secondly, in your professional ;) opinion is a respectable statistic? What is a good number? 4/10…7/10…10/10?

  • Errick

    Wait until the FTC and the state legislatures find out that the real statistics are not even as good as the pathetic numbers they are reporting.  The irony is, the third party escrow companies know to the penny what the real statistics are because they are moving the money.  And since I am writing, I remind the assembled that no one who self-reported as a customer commented favorably before the FTC.

  • Errick

    Wait until the FTC and the state legislatures find out that the real statistics are not even as good as the pathetic numbers they are reporting.  The irony is, the third party escrow companies know to the penny what the real statistics are because they are moving the money.  And since I am writing, I remind the assembled that no one who self-reported as a customer commented favorably before the FTC.

    • Robert Stevenson

      How can third party providers know “to the penny what real statistics”? They don’t know how much debt each client has… how much of it is being settled, etc. They just see, Draft, Payments, Fees without knowing the creditors/debt-load. That just be you assuming again… 

      And secondly, in your professional ;) opinion is a respectable statistic? What is a good number? 4/10…7/10…10/10? 

      • Errick

        Absolutely they know the monthly payments, and the fee, settlement, and refund disbursements.  But you can do a lot with that.  Compare the settlement to the fee disbursements and you have the fee structure.  From that you can calculate the size of accounts being settled, and then using the refund numbers, you can get very reliable measures of effectiveness.

        Plus there is the simple measure of how long accounts are open.  If only 15 percent are even still on the rolls after 15 months, that is pretty telling.  And further, all you need is a company’s typical plan length (easy to learn) to find out what the predicted gross settlement of a plan is.

        There is definitely enough there for a skilled statistician to determine whether the payment levels supported success or failure at the inception of the plan.  If they consistently and not randomly fail, then you know you have the 50+15=55 scam.

      • Errick

        You’re really not understanding me at all.  I don’t care what the success rate is or ought to be.  Maybe a low success rate is fine, I neither know nor care.   I am talking about the companies (Care One being one but I’m sure there are others) who sign people on to a plan to take 55 to 60 cents on the dollar from the client, and then taking 15 cents for a fee knowing all the time they cannot settle for the 40 to 45 cents that are left, because they never have and they are not even trying to.  It is easier and more profitable to settle the easy third of three clients plans than get a single client through to the end.  So they engineer the plans to fail.  That’s the real problem.

        The reason I ask for one client success is because there are companies who actually do not want any of their clients to get to the finish line.  That’s my theory and nobody has disproven it yet.

      • Cupid

        Errick – and I am talking about nonprofit DMP-ers enrolling consumers left, right and upside down
        who can qualify for chapter 7 bankruptcy. Do the DMP-ers encourage or
        instruct the consumer to consult with a bankruptcy attorney to learn
        more about chapter 7 before proceeding forward in a DMP?

        Bet Not!

        That pretty much is a breach of trust. That pretty much makes the
        nonprofit single solution DMP-ers about as bad as you say settlement
        companies are. Couple that with the fact that nonprofit DMP-ers get paid
        to represent banks payment programs that have to be complied with at
        the threat of pulled support and I think I would rather talk to someone
        who is not representing the creditors I might be struggling with. Banks
        that, need I remind
        you, have and will continue to pay out BILLIONS of dollars for their
        wrong
        doing. That’s what you support Errick. A system that brought this nation
        to its
        worst economic condition since the great depression.

        CareOne provides debt management plans and does not get paid by creditors to do it. That alone breeds trust.

        “Now get in the pit and try to love someone.”

        P.S. I don’t work for CareOne or any company related to them. I
        am not related to anyone who does work for them nor any contractor for them
        etc. I am just kinda sick of the Erricks and the holier than thou attitude they
        have about debt management plans that are mostly offered by nonprofits. CareOne
        is an exception and a good one for the DMP.

  • Steve Rhode

    I believe that GCS in Washington, and probably elsewhere felt it was exempt from registration and was not acting as a debt adjuster. According to the opinion of the Supreme Court of Washington, that does not appear to be the case.

    I am not aware of any state I’ve looked at that had GCS listed as holding a debt adjuster license.

  • Steve Rhode

    Robert,

    I saw the same thing and did not have time to focus on that but if GCS, RMBT, FDR, and others in the chain provided debt adjustment services then one way to look at it could be the collective fees charged could have been in excess.

    The underlying issue I’ve spoke about for a long time though is that of fairness in treatment of the consumer. There is little doubt that consumers that paid significantly received much less benefit and refused refunds for services not provided and the court found that GCS helped in those efforts and as a debt adjuster carries significant civil and potential criminal liability.

    Do you see that point differently?

  • Guest

    Do ACH processing companies (GCS) in the debt relief space need to carry a debt adjuster license? Do they cary this license?

  • Guest

     Do ACH processing companies (GCS) in the debt relief space need to carry a debt adjuster license? Do they cary this license?

    • http://GetOutOfDebt.org Steve Rhode

      I believe that GCS in Washington, and probably elsewhere felt it was exempt from registration and was not acting as a debt adjuster. According to the opinion of the Supreme Court of Washington, that does not appear to be the case.

      I am not aware of any state I’ve looked at that had GCS listed as holding a debt adjuster license.

  • Robert Stevenson

    Steve, If I am reading this correctly from http://apps.leg.wa.gov/rcw/def… A Debt Adjuster can operate in WA by charging no more than 15% of the debt? If I’m not mistaken, didn’t Freedom charge 15%? Or is this issue more about the time they took the fees (In advanced?)

  • Robert Stevenson

    Steve, If I am reading this correctly from http://apps.leg.wa.gov/rcw/default.aspx?cite=18.28.080… A Debt Adjuster can operate in WA by charging no more than 15% of the debt? If I’m not mistaken, didn’t Freedom charge 15%? Or is this issue more about the time they took the fees (In advanced?)

    • http://GetOutOfDebt.org Steve Rhode

      Robert,

      I saw the same thing and did not have time to focus on that but if GCS, RMBT, FDR, and others in the chain provided debt adjustment services then one way to look at it could be the collective fees charged could have been in excess.

      The underlying issue I’ve spoke about for a long time though is that of fairness in treatment of the consumer. There is little doubt that consumers that paid significantly received much less benefit and refused refunds for services not provided and the court found that GCS helped in those efforts and as a debt adjuster carries significant civil and potential criminal liability.

      Do you see that point differently?

    • Scott Johnson

      Robert

      one issue was pro rata here is a link to the full brief
      http://www.atg.wa.gov/uploadedFiles/Home/News/Press_Releases/2011/AmicusBrief2011-02-10.pdf 

      • Robert Stevenson

        @Scott_Johnson:disqus  I just read that as you posted. So, if I read correctly.. Not just 15% of the total debt, but a limitation of 15% of one payment made. If the payment is $100, the maximum fee is $15. 
        However, doesn’t this make it impossible to earn 15% of the debt? Hypothetical, consumer finishes debt settlement program at 55% of original balance. That would mean under state law you could only collect 15% of the 55% they paid? 

      • Scott Johnson

        Robert

        This is the definition of WA DAA
        Fees for debt adjusting services — Limitations — Requirements.
        (1) By contract a debt adjuster may charge a reasonable fee for debt adjusting services. The total fee for debt adjusting services may not exceed fifteen percent of the total debt listed by the debtor on the contract. The fee retained by the debt adjuster from any one payment made by or on behalf of the debtor may not exceed fifteen percent of the payment. The debt adjuster may make an initial charge of up to twenty-five dollars which shall be considered part of the total fee. If an initial charge is made, no additional fee may be retained which will bring the total fee retained to date to more than fifteen percent of the total payments made to date. No fee whatsoever shall be applied against rent and utility payments for housing.

        General discussion of determining fee assessment in the best interest of an enrollee
         
        Example
         
        Individual Enrollee in Debt Adjusting Services
         
        Debt    $1,000 Fees 15% = $150.00 fee
         
        Assessing fees on contribution
         
        1.  Adjustment of principal balance (at enrollment)
        a- 20% Reduction – $800 contribution to repayment of $1,000 debt
        b- 40% Reduction – $600 contribution to repayment of $1,000 debt
        c- 60% Reduction – $400 contribution to repayment of $1,000 debt
        d- 80% Reduction – $200 contribution to repayment of $1,000 debt
         
        One time payment to Debt owner
         
        Debt Adjuster Receives
        a. 15% of $800 = $120.00 in fees                 
        b. 15% of $600 = $90.00 in fees
        c. 15% of $400 = $60.00 in fees
        d. 15% of $200 = $30.00 in fees
         
        Assessing Fees on Repayment
         
        15% of payment obligation of $1,000 = $150.00 in fees
         
        It appears that an opinion that fees should be assessed on contribution that a Debt Adjuster would be deterred to achieve the best results for an enrollee.

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