Richardson v. Law Offices of Daniels Norelli Scully & Cecere, P.C. et al
REPORT AND RECOMMENDATIONS re 14 Defendants Law Offices of Daniels Norelli Scully & Cecere, P.C. and Meredith E. Unger's Motion for Judgment on the Pleadings, 17 Plaintiff's Motion to Strike. IT IS RECOMMENDED THAT Defendants' motion for judgment on the pleadings 14 be GRANTED, that Plaintiff's motion to strike 17 be DENIED, that judgment be entered in favor of the Defendants, and that this case be CLOSED. In the alternative, IT IS RECOMMENDED that Defendants 9; motion be GRANTED IN PART as to all time-barred claims under the FDCPA and OCSPA, and as to the FCRA claims, but that the motion otherwise be denied without prejudice to re-file a dispositive motion on the same grounds following a short period of discovery. Objections to R&R due by 3/14/2017. Signed by Magistrate Judge Stephanie K. Bowman on 2/28/2017. (km) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
HOMER L. RICHARDSON,
Case No. 1:16-cv-554
LAW OFFICES OF DANIELS, NORELLI, SCULLY
& CECRE, P.C., et al.,
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se, 1 paid the requisite filing fee and initiated this litigation
on May 17, 2016, alleging that the Defendants violated the Fair Debt Collection
Practices Act (FDCPA), the Fair Credit Reporting Act (FCRA), and the Ohio Consumer
Sales Protection Act (OSPA). Pursuant to local practice, this case has been referred to
the undersigned magistrate judge for initial consideration and a report and
recommendation on any dispositive motions.
After answering the complaint, the
Defendants jointly moved for judgment on the pleadings. Defendants’ motion should be
Plaintiff has appeared as a pro se plaintiff, as a pro se petitioner, and as a pro se defendant in other
litigation in this Court, as well as through counsel in both civil and criminal matters. See, e.g., Case No.
1:03-cv-96, Case No.3:02-cv-481; Case No. 1:00-mc-09; Case No. 1:05-cr-45; Case No. 1:08-cr-118;
Case No. 1:12-cv-694. One of Plaintiff’s prior cases; Case No. 1:12-cv-664, appears to have involved
similar civil claims, but that case was dismissed for failure to prosecute.
Plaintiff’s complaint seeks monetary damages from two Defendants under the
FDCPA, the FCRA, and the OSPA. The identified Defendants are a New York law firm
and one of its individual members, Meredith E. Unger. 2 All of the following allegations
are drawn from Plaintiff’s complaint, and are assumed to be true solely for the purpose
of the pending motion.
Plaintiff alleges that beginning in June of 2013, the Defendant law firm contacted
Plaintiff by telephone and by letter in an attempt to collect a credit card debt for its client.
Plaintiff alleges that he and the law firm exchanged communications concerning the
alleged debt in June and July of 2013, with additional written communications dated
February, March, and April of 2014.
On August 26, 2014, Plaintiff received a notice
from the law firm that its “client has authorized a settlement on your account.” (Doc. 1
at ¶24, PageID 4). Plaintiff responded by letter dated May 6, 2015, inquiring about the
terms of the settlement.
On May 20, 2015, the law firm informed Plaintiff that to
consummate the settlement, “A payment of $3,000.00 must be received by this office on
or before May 29, 2015.”
(Id. at ¶26, PageID 5).
In addition to the referenced
correspondence, Plaintiff alleges that the law firm obtained his consumer credit reports
on July 2, 2013, August 25, 2014, December 22, 2014 and May 19, 2015 “with no
permissible purpose.” (Id. at ¶36, PageID 6).
Plaintiff alleges that he followed up with final correspondence directed to the law
firm dated June 18 and September 17, 2015, but that the Defendants did not respond to
those two letters. He alleges that the Defendants’ actions between “July 3, 2013 …until
Plaintiff initially sued a second lawyer, William Sung, but later voluntarily dismissed that individual.
the time Defendants made the settlement offer” on May 20, 2015 have caused him
financial harm, “resulting in a reduction of his credit score, cancellation of credit cards,
credit delays, inability to apply for credit, loss of use of funds, mental anguish, emotional
distress, humiliation, a loss of reputation and expenditures for fees and costs.” (Id. at ¶¶
Plaintiff has articulated six claims based upon the actions taken by Defendants
from June or July of 2013 through May 20, 2015.
In Count I, Plaintiff’s complaint
alleges that Defendants are debt collectors who violated the FDCPA by “falsely
representing the character, amount, or legal status” of the alleged debt, by
“communicating or threating [sic] to communicate to any person credit information which
is known or which should be known to be false, including the failure to communicate
that a disputed debt is disputed,” and through “the use of any false representation or
deceptive means to collect or attempt to collect any debt or to obtain information
concerning a consumer.”
In Counts II-V, Plaintiff alleges that the Defendants’
communications violated the FDRA when Defendant law firm “obtained the TransUnion
consumer credit report for Plaintiff with no permissible purpose” on four dates. In Count
VI, Plaintiff alleges that Defendants violated the OCSPA by “claiming[,] attempting or
threatening to enforce a debt when such persons knew that the debt was not
Plaintiff alleges that Defendants’ alleged FDCPA violations are
“automatically” violations of the OCSPA.
Plaintiff further alleges in County VI that
Defendants “knowingly made a misleading statement or opinion on which Plaintiff was
likely to rely to Plaintiff’s detriment.”
A. Standard of Review
The standard for a motion for judgment on the pleadings is the same as the
standard for a motion to dismiss under Rule 12(b)(6). See Morgan v. Church's Fried
Chicken, 829 F.2d 10, 11 (6th Cir.1987). When ruling on a defendant's Rule 12(c)
motion, a district court “must construe the complaint in the light most favorable to the
plaintiff [and] accept all of the complaint's factual allegations as true.” Ziegler v. IBP Hog
Market, Inc., 249 F.3d 509, 512 (6th Cir.2001) (citations omitted). In ruling on a motion
for judgment on the pleadings, a court may not consider material outside of the
pleadings. Fed.R.Civ.P. 12(c); see also Hickman v. Laskodi, 45 F. App'x 451, 454 (6th
Although a plaintiff’s pro se complaint must be “liberally construed” and “held to
less stringent standards than formal pleadings drafted by lawyers,” the complaint must
“give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal citation and quotation omitted)).
“A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The Court must accept all wellpleaded factual allegations as true, but need not “accept as true a legal conclusion
couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986)). A complaint need not contain “detailed factual allegations,”
but must provide “more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A pleading
that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555. Nor does a complaint suffice if it
tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. at 557.
B. Plaintiff’s Responses in Opposition to Defendants’ Motion
Defendants filed their motion for judgment on the pleadings on September 12,
2016. Under the rules of civil procedure, Plaintiff was entitled to file one responsive
memorandum in opposition to Defendants’ motion. Plaintiff has filed a total of four
documents, including a motion to strike, that could be viewed as successive responses
to Defendants’ motion for judgment on the pleadings. In light of Plaintiff’s pro se status
and the fact that dismissal of his claims is recommended, the undersigned has
generously considered three of the four responses.
The only document not considered is an “affidavit with exhibits” that Plaintiff filed
in support of his claim on October 3, 2016, which was docketed as a “complaint affidavit
and exhibits in support of claim.”
In a later filed “supplemental
memorandum,” Plaintiff clarifies that this particular affidavit and exhibits were not
intended to be a response in opposition to the pending motion for judgment on the
pleadings, but instead were intended to “support” the claims presented in his original
complaint. (Doc. 19 at 2, PageID 224).
There is no procedural mechanism by which it would be appropriate for the Court
to consider Plaintiff’s tendered evidentiary “support” of his previously filed complaint.
Nor will the Court construe the documents as a newly amended complaint, since an
amended complaint may not be filed without leave of Court. Thus, the undersigned
declines to further consider the “affidavit and exhibits” filed on October 3, 2016.
On October 11, 2016, Plaintiff filed a second document that is more responsive
to Defendants’ pending motion for judgment on the pleadings, despite being captioned
as a “motion to strike” the Defendants’ motion. (Doc. 17). Defendants filed a response
in opposition to Plaintiff’s motion to strike, to which Plaintiff filed a reply on November
17, 2016. (Doc. 21). Plaintiff confirms in a later-filed memorandum that he intended his
October 11 “motion to strike” to be his response in opposition to Defendants’ motion for
judgment on the pleadings. (Doc. 19 at ¶5, PageID 224).
In the motion to strike, Plaintiff argues that this Court should deny Defendants’
motion for procedural reasons, because it is not supported “with any deposition,
admission or affidavit….” (Doc. 17 at 3, PageID 203). As discussed above, review of
the pending motion under Rule 12(b)(1) and Rule 12(c) is limited to the pleadings. In
contrast to review of a dispositive motion filed under Rule 56, the submission of
evidence is neither required nor generally appropriate to support a motion for judgment
on the pleadings. Plaintiff makes additional arguments in favor of striking the
Defendants’ motion, which - while difficult to follow – appear to be equally without
In addition to confusing the differing standards applicable to review of a motion filed under Rule 12(c)
and a motion filed under Rule 56, Plaintiff repeatedly (and mistakenly) describes Defendants’ motion as a
The fourth document filed by Plaintiff that appears responsive to Defendants’
motion for judgment on the pleadings was filed on October 20, 2016, captioned as a
“response and reply” to Defendants’ motion, and docketed as a “Supplemental
Memorandum” in opposition. (Doc. 19). In his supplemental response, Plaintiff raises
an additional procedural objection to Defendants’ motion for judgment on the pleadings.
Specifically, he asserts that Defendants’ motion is procedurally improper because such
a motion cannot be filed “until the pleadings are closed.” (Doc. 19 at 3, PageID 225).
However, the record flatly refutes Plaintiff’s contention that Defendants’ motion is
somehow prematurely filed or procedurally improper. Defendants filed an Answer prior
to filing the Rule 12(c) motion and no counterclaims or crossclaims have been filed. 4
(See Docs. 7, 12).
C. The Merits of Defendants’ Motion
Having rejected the procedural defenses presented by Plaintiff, the Court turns
now to the merits of Defendants’ motion for judgment on the pleadings.
1. Statute of Limitations Defenses
Defendants persuasively argue that most of Plaintiff’s claims are time-barred,
and that they are entitled to judgment on the pleadings for those claims. The FDCPA
requires claims to be brought “within one year from the date on which the violation
occurs.” See 15 U.S.C. § 1692k(d). Plaintiff filed his complaint on May 17, 2016. The
dates on which Plaintiff alleges that the Defendants violated the FDCPA are all outside
motion for default judgment under Rule 55.
Plaintiff relies upon rules of procedure that permit the filing of an answer to a counterclaim before
pleadings are deemed to be closed. Because Defendants’ Answer does not include any counterclaims
against Plaintiff, the pleadings are closed.
the applicable one-year statute of limitations, with the exception of the May 20, 2015
Attached to Defendants’ answer are copies of the correspondence that Plaintiff
references in his complaint. (See Doc. 7-1).
A court may grant judgment on the
pleadings on a statute of limitations defense where it is apparent from the face of the
complaint that the action was not brought within the statutory period. See Phelps v.
McClellan, 30 F.3d 658, 662 (6th Cir.1994); see also Rauch v. Day & Night Mfg. Corp.,
576 F.2d 697, 702 (6th Cir.1978) (Rule 12(b) motion to dismiss granted only where
complaint shows that action is time-barred). Here, it is clear from the face of the
pleadings that all of Defendants’ communications prior to the May 20, 2015 letter fall
outside the applicable statute of limitations for the FDCPA. Thus, nearly all discrete
“violations” about which Plaintiff complains are time-barred under the FDCPA. Only the
Defendants’ final letter of May 20, 2015 falls within the statute. Accord Purnell v. Arrow
Financial Servs., LLC, 303 Fed. Appx. 297, 301 (6th Cir. 2008); see also generally Fryer
v. CitiFinancial, Inc., 2012 WL 592172 at *4 (S.D. Ohio Feb. 23, 2012)(citing Ruth v.
Unifund CCR Partners, 604 F.3d 908 (6th Cir. 2010)).
Plaintiff does not dispute that nearly all of his FDCPA claims are barred by the
relevant statutes of limitations. Plaintiff’s claims under the OCSPA are entirely derivative
of his FDCPA claims. Although the OCSPA has a longer two-year statute of limitations,
the parallel state law still bars any claim concerning any communications allegedly
made by Defendants prior to May of 2014.
2. Failure to State a Claim Under the FDCPA
In addition to their statute of limitations defenses, Defendants argue that the
complaint fails to state any claim under the FDCPA, because Plaintiff has failed to
allege any factual content that would support his otherwise conclusory assertions.
a. Consideration of Documents Attached to Pleadings
For the reasons stated, only the May 20, 2015 letter could support an FDCPA
claim that is not time-barred. In support of that single claim, Plaintiff alleges that the
May 20, 2015 letter was in response to Plaintiff’s inquiry “about the terms of settlement.”
(Doc. 1 at ¶25). Although Plaintiff quotes only two sentences from the letter, a full copy
is attached as an exhibit to Defendant’s Answer. At the top of the letter is the name of
the Original Creditor (identified as Fifth Third Bank) as well as the name of the current
creditor, identified as “CACH, LLC as assignee of Fifth Third Bank.”
number, file number and current balance ($5,630.31) are also listed. The narrative
portion of the letter reads as follows:
This confirms your conversation with this office on May 20, 2015
that resulted in the settlement of this claim as follows:
A payment of $3,000.00 must be received by this office on or
before May 29, 2015.
Your payment must be made to the order of Daniels Norelli Scully &
Cecere, P.C., as attorneys for CACH, LLC, and they will be made via
check by phone, using the bank information you provided.
If the payment is not made in accordance with the terms of this
letter, the total current balance shall be due.
Upon receipt and clearance of the payment, the account will be
considered Settled in Full.
If you have any questions, please contact Stephanie Butler at 888332-3306. Thank you for your cooperation in this matter.
The letter bears the signature of William Sung, an individual previously dismissed by
Plaintiff as a Defendant in this case. Below Mr. Sung’s signature is the statement:
“This is an attempt to collect a debt and any information obtained shall be used for that
purpose.” (Doc. 7-1, Exhibit H, PageID 65).
Defendants argue that they are entitled to judgment as a matter of law, because
the May 20, 2015 letter accurately states the original creditor, the original account
number, the current creditor, the current file number, the current balance, and the
Defendant offers, as additional proof, the prior documentation
provided to Plaintiff sent in response to Plaintiff’s written request for validation of the
debt. Arguably, all of the referenced correspondence may be considered by this Court
in the context of the pending motion because it is directly referenced in Plaintiff’s
Complaint, with copies attached to the Defendants’ Answer.
Plaintiff has failed to identify any false statement or information contained in the
May 20, 2015 letter that could support any claim under the FDCPA. Instead Plaintiff
has alleged only that Defendants violated the FDCPA, listing the elements of a statutory
cause of action and the legal conclusion that the Defendants are liable, but without
alleging any factual detail that would allow this Court to draw a reasonable inference
that either Defendant is liable for any statutory violation.
In the correspondence
attached to the Defendants’ Answer in which he requests additional information about
the debt, Plaintiff advises Defendants that “this is not a refusal to pay, but a notice sent
pursuant to the Fair Debt Collection Practices Act…that your claim is DISPUTED and
VALIDATION is required.” He further states that it “is not now, nor has it ever been, my
intention to avoid paying any obligation that I lawfully owe….” (Doc. 7-1, PageID 45).
Defendants’ correspondence to Plaintiff purports to be responsive to his request for
Validation of the debt. (Id., PageID 47-54).
In his motion to strike, Plaintiff asserts that Exhibit D “is not authenticated and
there is no signature on this Fifth Third Bank credit card agreement to verify that
[Plaintiff] had a contract with Fifth Third Bank…[that] CACH, LLC owns.” (Doc. 18 at 4,
PageID 204). Plaintiff argues that Exhibit D “is a bogus instrument” since it is not
authenticated, and “fails to prove CACH, LLC is the owner of a contract in which
Richardson consented to pay a sum of money.”
Plaintiff’s carefully worded argument placing the onus on Defendants, it remains
Plaintiff’s burden to plead sufficient factual content under Rule 8 to support his claims.
Here, the complaint itself is devoid of any allegations or reasonable inference: (1) that
Plaintiff is not in fact a party to the referenced Fifth Third Bank credit card agreement; or
(2) that CACH LLC is not in fact a valid assignee of that account. As explained herein,
Plaintiff’s complaint also fails to include any other factual content that would support a
claim under the FDCPA.
Although whether the complaint states a valid FDCPA clam in the context of the
pending motion (prior to any discovery) is a relatively close issue, the correspondence
referenced in the Complaint and attached to the Defendants’ Answer lead the
undersigned to conclude that Plaintiff neither has alleged nor could allege that any of
the facts presented in the May 20, 2015 letter are false, misleading, or deceptive in
violation to the FDCPA.
In the absence of any factual allegations by Plaintiff that
either Defendant misrepresented the character, amount, or legal status of the debt, in
contrast to formulaic legal conclusions that the Defendants made unspecified
misrepresentations or false statements, the Defendants should not be required to
proceed through discovery.
Rule 8 exists in part so that Defendants are not put to the task and expense of
disproving through costly litigation facts that Plaintiff has not even alleged in his
complaint. A court “should not assume facts that were not pled.” Harvey v. Great
Seneca Financial Corp., 453 F.3d 324, 328 (6th Cir. July 6, 2006) (affirming dismissal of
FDCPA claims, where the plaintiff did not admit or deny the existence of the underlying
debt, and did not allege any false representations or that the debt collector’s claims
were false); Deere v. Javitch, Block, and Rathbone, LLP, 413 F. Supp. 2d 886, 891
(S.D. Ohio 2006)(dismissing FDCPA claims against law firm pursuing debt on behalf of
client based upon plaintiff’s theory that “more of a paper trail should have been in the
lawyers’ hands,” because “[t]he FDCPA imposes no such obligation.”).
Plaintiff also has failed to offer any factual support for his bald assertion that
Defendants communicated or threatened to communicate credit information which is
known or should be known to be false, and/or used deceptive means to collect a debt.
Simply asserting a violation of the statute without any factual support is insufficient to
state a claim.
Therefore, viewed under the liberal standards applied to pro se
pleadings, Plaintiff’s complaint fails to state a claim under the FDCPA.
b. Alternative Recommendation
As discussed above, the undersigned would grant Defendants’ motion for
judgment on the pleadings based upon a review of the pleadings themselves, including
correspondence that Plaintiff has referenced in his complaint and those attached by
Defendants to their Answer. To the extent that a reviewing court declines to consider
the exhibits attached to Defendants’ Answer in the context of the pending motion, the
undersigned alternatively would recommend only partially granting the motion for
judgment on the pleadings, for FDCPA and OCSPA claims that are clearly time-barred,
and for all FCRA claims. Otherwise, the undersigned would recommend partial denial
of the motion for the few FDCPA and OCSPA claims that are not time-barred, without
prejudice to re-file a dispositive motion under Rule 56 following a short period of limited
3. Failure to State a Claim Under the OCSPA
Similar to the FDCPA claims, the OCSPA claims allege violations of O.R.C. §§
1345.02(A) and 1354.03(B)(6) based upon allegations that Defendants made
unspecified misleading statements during the course of the attempted debt collection.
Plaintiff has not alleged how the statutes were violated, simply that they were violated.
Thus, once again Plaintiff has couched a legal conclusion as if it were a factual
allegation. Other than vaguely alleging that the Defendants made misleading
statements, the complaint is bereft of any factual allegations to support such a claim.
To the contrary, Plaintiff’s claims appear to be directly contradicted by the
correspondence attached to the pleadings, which show a clear conveyance of all
relevant information required by statute that pertains to the account. Thus, Plaintiff’s
bare assertions that the Defendants violated the referenced statutes fail to meet the
pleading requirements of this court.
In the alternative, because this Report and Recommendation recommends the
dismissal of all federal law claims, the undersigned would decline to exercise jurisdiction
over any related state law claims. See Hankins v. The Gap, Inc., 84 F.3d 797, 803 (6th
4. The FCRA Claims
Plaintiff has failed to articulate sufficient factual content to support any claim
under the FCRA.
Plaintiff alleges that Defendants violated the FCRA when they
accessed his TransUnion credit report on four separate occasions: July 2, 2013, August
25, 2014, on December 22, 2014, and on May 19, 2015.
However, he offers no
additional allegations to support his claims. Instead, the claims appear to rest upon
Plaintiff’s mistaken belief that his credit report could be accessed by Defendants only if
he sought credit from Defendants. (See Doc. 1 at ¶ 51, alleging that Plaintiff “has never
had any business dealings or any accounts with, made application for credit from, made
application for employment with, applied for insurance from, or received a bona fide
offer of credit” from Defendants). Plaintiff alleges that Defendants are debt collectors
(see, e.g., Doc. 1 at ¶41). 5
The correspondence attached to Defendants’ Answer
confirms that the law firm’s communications are made for the purpose of debt collection.
Under 15 U.S.C. § 1681b(a)(3)(A), a credit report may be furnished to any
person who intends to use the information in the “collection of an account” of the
consumer. This has been interpreted by the Sixth Circuit to apply directly to the
collection of debt. Duncan v. Handmaker, 149 F.3d 424, 427 (6th Cir. 1998). When a
law firm accesses a credit report in an attempt to collect the debt, “the attorney is likely
to procure the consumer report for a purpose analogous to those enumerated in §
1681b.” Id. at 428. In short, Plaintiff’s allegations fail to state any claim under the
FCRA, because the allegations support the authority of Defendants to obtain Plaintiff’s
credit reports as agents of a debt collector under 15 U.S.C. § 1681b(a)(3)(A).
Conclusion and Recommendation
For the reasons stated, IT IS RECOMMENDED THAT Defendants’ motion for
judgment on the pleadings (Doc. 14) be GRANTED, that Plaintiff’s motion to strike (Doc.
17) be DENIED, that judgment be entered in favor of the Defendants, and that this case
be CLOSED. In the alternative, IT IS RECOMMENDED that Defendants’ motion be
GRANTED IN PART as to all time-barred claims under the FDCPA and OCSPA, and as
to the FCRA claims, but that the motion otherwise be denied without prejudice to re-file
a dispositive motion on the same grounds following a short period of discovery.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
In his motion to strike Plaintiff argues that this court should distinguish between a debt collector and an
attorney representing creditor (here CACH, LLC). However, Duncan does not support such a distinction.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
HOMER L. RICHARDSON,
Case No. 1:16-cv-554
LAW OFFICES OF DANIELS, NORELLI, SCULLY
& CECRE, P.C., et al.,
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.
Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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