Kucherov v. MTC Financial Inc et al
Filing
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ORDER signed by Judge Benjamin H. Settle granting 38 Motion for Summary Judgment; granting 41 Motion for Summary Judgment.(TG)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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LEONID KUCHEROV,
CASE NO. C17-5050 BHS
Plaintiff,
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ORDER GRANTING
DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT
v.
MTC FINANCIAL, INC., et al.,
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Defendants.
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This matter comes before the Court on Defendants CIT Bank N.A. (“CIT Bank”)
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and OWB REO, LLC’s (“OWB REO”) motion for summary judgment (Dkt. 38) and
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Defendant MTC Financial, Inc.’s (“MTC”) motion for summary judgment (Dkt. 41). The
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Court has considered the pleadings filed in support of and in opposition to the motions
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and the remainder of the file and grants the motions for the reasons stated herein.
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I.
BACKGROUND
This lawsuit stems from the foreclosure on Plaintiff Leonid Kucherov’s
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(“Kucherov”) property on May 20, 2016. On January 25, 2017, Plaintiff Leonid
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Kucherov (“Kucherov”) filed a complaint against MTC, CIT Bank, and OWB REO
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(“Defendants”) asserting claims for breach of contract, wrongful foreclosure, violation of
ORDER - 1
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the Washington Consumer Protection Act (“CPA”), infliction of emotional distress,
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fraud, misrepresentation, civil conspiracy, declaratory relief to vacate the sale, and
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violation of the Fair Debt Collection Practices Act (“FDCPA”). Dkt. 3.
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On May 30, 2017, the Court granted CIT Bank’s motion to dismiss in part and
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denied it in part. Dkt. 22. In relevant part, the Court dismissed Kucherov’s claims for
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slander of title and quiet title because the Court dismissed these claims with prejudice in
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Kucherov’s first suit, see Kucherov v. MTC Financial, Inc., No 16-cv-5276BHS (W.D.
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Wash. Sep. 19, 2016), and dismissed Kucherov’s claims to “vacate the [foreclosure] sale
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based on allegations that OWB REO, LLC is not licensed as a contractor, failed to pay
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taxes, or violated the Washington State ‘anti-flip statute.’” Dkt. 20.
On November 6, 2017, CIT Bank and OWB REO filed a motion for summary
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judgment and noted it for consideration on December 22, 2017. Dkt. 38. On November 7,
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2017, MTC filed a motion for summary judgment and also noted it for consideration on
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December 22, 2017. Dkt. 41. On December 21, 2017, Defendants filed replies stating
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that Kucherov failed to respond to either motion. Dkts. 44, 45.
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On December 22, 2017, Kucherov filed an untimely motion for extension of time
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to complete discovery. Dkt. 46. On December 29, 2017, Kucherov filed an untimely
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response to Defendants’ motions for summary judgment. Dkt. 47.
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On January 10, 2017, CIT Bank and OWB REO’s attorney sent a letter to the
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Court asserting that Kucherov has failed to participate in pretrial disclosures and seeking
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relief from the impending pretrial deadlines. Dkt. 53.
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On January 11, 2017, the Court entered an order striking Kucherov’s response to
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the pending summary judgment motions for severe violations of the Court’s rules on page
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limits, which the Court had explicitly directed Kucherov to observe on previous
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occasions. Dkt. 54. This is was not the first time the Court has dealt with Plaintiff’s
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failure to comply with court rules and orders on related or identical claims. See Kucherov
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v. MTC Financial, Inc., No 16-cv-5276BHS (W.D. Wash. Sep. 19, 2016). In its order, the
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Court also afforded Kucherov the opportunity to file a 36-page brief no later than January
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26, 2018, with the explicit warning that it would “disregard any brief that is not timely
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filed and will disregard any argument beyond the first 36 pages of any response.” Dkt. 54
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at 4.
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The January 26 deadline passed without any response from Kucherov. On January
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30, 2018, CIT Bank and OWB REO filed replies noting that Kucherov had again failed to
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file a response by the ordered deadline. Dkt. 57. On January 31, 2018, MTC did the same.
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Dkt. 56.
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On February 1, 2018, Kucherov filed a 36-page response to the motions for
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summary judgment, with attached declarations. Dkt. 57. Kucherov also filed a motion to
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strike evidence submitted by Defendants in support of their motions for summary
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judgment. Dkt. 58.
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II. DISCUSSION
“A schedule may be modified only for good cause and with the judge’s consent.”
Fed. R. Civ. P. Rule 16(b)(4). Moreover, every court has the inherent authority “to
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control the disposition of the causes on its docket with economy of time and effort for
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itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).
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In its previous order striking Kucherov’s severely overlength and untimely
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response, the Court offered Kucherov another chance to file a response and explicitly
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informed Kucherov that it would disregard any response filed later than January 26,
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2018. Dkt. 54 at 4. Nonetheless, Kucherov failed to comply with the Court’s order.
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Kucherov has failed to provide good cause for his repeated failure to timely oppose
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Defendants’ motions for summary judgment. As a result, it would be appropriate for the
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Court to reject the response, as warned in its previous order. If a party fails to properly
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support an assertion of fact or address another party’s assertion of fact, the Court may:
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(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed--show that the movant is entitled
to it; or
(4) issue any other appropriate order.
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Fed. R. Civ. P. 56. Despite the Court’s repeated warnings, it will consider Kucherov’s
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untimely filings.
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However, Plaintiff’s pleadings and supporting affidavits fail to rebut material facts
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establishing that Defendants are entitled to summary judgment. Summary judgment is
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proper only if the pleadings, the discovery and disclosure materials on file, and any
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affidavits show that there is no genuine issue as to any material fact and that the movant
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is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is
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entitled to judgment as a matter of law when the nonmoving party fails to make a
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sufficient showing on an essential element of a claim in the case on which the nonmoving
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party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There
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is no genuine issue of fact for trial where the record, taken as a whole, could not lead a
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rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v.
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Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific,
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significant probative evidence, not simply “some metaphysical doubt”). See also Fed. R.
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Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is
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sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to
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resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th
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Cir. 1987).
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The determination of the existence of a material fact is often a close question. The
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Court must consider the substantive evidentiary burden that the nonmoving party must
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meet at trial—e.g., a preponderance of the evidence in most civil cases. Anderson, 477
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U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual
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issues of controversy in favor of the nonmoving party only when the facts specifically
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attested by that party contradict facts specifically attested by the moving party. The
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nonmoving party may not merely state that it will discredit the moving party’s evidence
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at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.
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Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,
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nonspecific statements in affidavits are not sufficient, and missing facts will not be
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presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).
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The loan documents and evidence filed in support of Defendants’ motions show
that there is no material dispute as to the following:
Kucherov defaulted on his valid debt in October 2011. Defendants then properly
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advanced funds to ensure that property taxes were timely paid according to the terms set
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out in the deed of trust. Late fees for Kucherov’s default were properly assessed under the
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terms of his loan. Defendants then properly processed and denied Kucherov’s ten
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applications for loan modifications because either the applications were incomplete or
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Kucherov failed to qualify for a modification. In the instances where Kucherov submitted
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a complete application, he was not qualified for a loan modification because the property
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was not Kucherov’s primary residence and his debt to income ratio was too high. The
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record further establishes that any delay in the loan modification application was solely a
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product of Kucherov’s own failure to submit complete applications or furnish Defendants
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with requested supplemental materials. Defendants were prompt in alerting Kucherov to
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these deficiencies and extending him opportunities to cure them. In foreclosing on the
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property, Defendants acted pursuant to the terms of the deed of trust. Defendants properly
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conducted a public foreclosure sale. Never did Defendants misrepresent or make false
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statements regarding the status of Kucherov’s loan because Kucherov was in fact in
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default. Kucherov made no attempt to cure his default before the foreclosure sale.
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Based on these facts that are undisputed according to the evidence on the record,
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Defendants are entitled to summary judgment as a matter of law. Kucherov cannot
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prevail on a breach of contract claim when Defendants foreclosed on the property
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according to the terms of the deed of trust and any late fees were properly assessed under
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the terms of the loan after his default in October of 2011. To the extent Kucherov
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challenges the validity of the foreclosure sale based on general allegations of improper
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documentation or proof of ownership of the promissory note, he fails to articulate any
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specific irregularities in the loan documents or how they caused him harm. On the
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Court’s own review of the documents, there do not appear to be any irregularities.
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Because Kucherov was in default and failed to cure despite numerous opportunities
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offered by Defendants to Kucherov to seek loan relief, Defendants are entitled to
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summary judgment on Plaintiff’s claim for wrongful foreclosure. Because Defendants
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properly foreclosed on the property and did not assess any improper fees, they are
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similarly entitled to summary judgment on Kucherov’s CPA claims. These facts also
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disprove any allegations of a violation of 15 U.S.C. § 1692k(d), the only statute Plaintiff
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cites in favor of his claim under the FDCPA. Also, because Defendants did not make any
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false statements regarding the status of Kucherov’s loan, they are entitled to summary
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judgment on Kucherov’s claims for slander of title, fraud, and misrepresentation. Nor can
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Kucherov sustain a claim for infliction of emotional distress, as none of Defendants’
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lawful actions in servicing the loan or foreclosing on the property could be interpreted as
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outrageous. Since Kucherov has no underlying claims upon which he can prevail, his
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claim for civil conspiracy likewise fails.
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Finally, the Court has authority to cancel a lis pendens any time after an action is
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abated. RCW 4.28.325. In light of the foregoing, the Court orders that the lis pendens
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filed shall be cancelled in whole by the county auditor of any county in whose office the
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same may have been filed or recorded.
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III. ORDER
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Therefore, it is hereby ORDERED that Defendants’ motions for summary
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judgment (Dkts. 38, 41) are GRANTED. The lis pendens is CANCELLED in whole.
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The Clerk shall enter judgment in favor of Defendants and close this case.
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Dated this 12th day of March, 2018.
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BENJAMIN H. SETTLE
United States District Judge
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