(j)The making of a restitution order pursuant to subdivision (f) shall not affect the right of a victim to recovery from the Restitution Fund as otherwise provided by law, except to the extent that restitution is actually collected pursuant to the order. Requests for orders to set aside are complicated, so get help if you need it. Figure out if you have a legal reason You need to give the judge a legal reason why (B) Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as if the order were a civil judgment. (m)In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation. On the same day, 1/27/15, she also filed a First Amended Complai ..ich was 7/27/16. Family Code section 2122 allows the court to set aside a judgment for the following reasons: If your spouse hid key information from you, such as a major community asset, or otherwise prevented you from meaningfully participating in the divorce process, you may be able to set aside your judgment based on actual fraud. Background Facts The disclosure shall be signed and prepared by the defendant on the same form as described in paragraph (5). Two years from entry of your divorce judgment is the deadline to bring a set aside motion based on duress. (3)To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendants criminal conduct, including, but not limited to, all of the following: (A)Full or partial payment for the value of stolen or damaged property. [TENTATIVE] ORDER GRANTING PLAINTIFFS MOTION TO VACATE DISMISSAL AND RESTORE CASE TO ACTIVE CIVIL CASE LIST 467, 470-471.) You must file the request for order to set aside within 6 months after you discovered, or should have discovered, the perjury by the other side. An application to set aside a judgment under CCP 473 must be made within a reasonable time and in no case may exceed six months. Ct. (2005) 127 Cal.App.4th 1027, 1033. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478. You can have LCSA and the other parent served by mail or in person. To ask the judge to set aside (cancel) the default judgment or other order against you, you will have to ask for a court hearing. Section 946.6 of the Government Code Web2.1 Motions in General A request to set aside a default is made through a motion. A defendant shall bear the burden of demonstrating his or her inability to pay. Motion to Set Aside/Vacate Dismissal What is a Motion to Set Aside/Vacate Dismissal? Have someone 18 or older (NOT YOU) serve a copy of the Responsive Declaration toRequest for Order(Form FL-320) and any other papers you attached, on the other party. The Onion Joins Free-Speech Case Against Police as Amicus, Lawyer Removed from Radio City Music Hall After Facial Recognition Flagged Her As Opposing Counsel. (l)At its discretion, the board of supervisors of a county may impose a fee to cover the actual administrative cost of collecting the restitution fine, not to exceed 10 percent of the amount ordered to be paid, to be added to the restitution fine and included in the order of the court, the proceeds of which shall be deposited in the general fund of the county. As you can see, it is not simple or easy to set aside a judgment. If the judge makes a decision at the court hearing, he or she will let you know if your request for order was granted or denied. (b) An affidavit or sworn testimony from an attorney, a member of the clergy, a medical professional, a trained professional staff member of a victim services organization, or other professional from whom the movant has sought legal counsel or other assistance in addressing the trauma associated with being a victim of sex trafficking. xZmS7*mRuuU2bzi4O 6vXb6`n;8.Zo~TBH#zE\BUt+QRjE]bv>E1-7ePVWMiZ6%^R rtVU]j/U+qU6tu.S#NVr?(kUJMhT&L*XpV16/e? For example, if your ex-spouse pressured you to sign it by making threats to take the children away and to reveal embarrassing and harmful information about you to your employer, those actions could qualify as duress. (3) The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay both of the following: (A) A restitution fine in accordance with subdivision (b). (L)Expenses for a period of time reasonably necessary to make the victim whole, for the costs to monitor the credit report of, and for the costs to repair the credit of, a victim of identity theft, as defined in Section 530.5 . 202Menifee, CA 92586(951) 400-4071. See link below. Accessing Verdicts requires a change to your plan. CASE NO: BC610867 2022 However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California, 10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States, and 20 calendar days if either the place of mailing or the place of address is outside the United States, and if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days. (K)Expenses to retrofit a residence or vehicle, or both, to make the residence accessible to or the vehicle operational by the victim, if the victim is permanently disabled, whether the disability is partial or total, as a direct result of the crime. . 266. They can make sure you filled it out properly. In some cases, you may want or need the other side to come to court. This is the place to go if you would like to open and save this form. As of September 29, 2017, no reply has SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT The court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or another showing to the court. Current as of January 01, 2019 | Updated by FindLaw Staff. (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1478.) (1)The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. Dept. Section 473.5 But if you are asked to pay a fee and you cannot afford it, you can, The clerk will also give you a court date and write it on page 1 of your. You must file the request for order to set aside within 6 months after you discovered, or should have discovered, the perjury by the other side. (b)In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. On November 13, 2015, Plaintiff Burt Boyar (Plaintiff) filed a breach of contract action against Defendant Susan Josephson (Defendant) for failure to repay a loan. With few exceptions (such as in family law cases), there is no Judicial Council form for making a motion. During this delay, Mr. Heggies stocks increased in value by less than $300. order dismissing petitioner's motion under 28 u.s.c. What to include in your set aside request. This subdivision applies to the service of opposition and reply papers regarding motions for summary judgment or summary adjudication, in addition to the motions listed in subdivision (a). You can have your papers served on the other side before the clerk stamps them just make sure you do not serve the original. You must have someone else serve the papers for you. California Motion Set Aside is a program for people with disabilities that creates opportunities for employment. %PDF-1.4 The Court denied it without prejudice for Plaintiff to bring a properly noticed motion. (Exh. Nonetheless, the law strongly favors trial and disposition on the merits, so any doubts in applying 473 must be resolved in favor of the party seeking relief from a default. If you reasonably misunderstood one or more key facts in your family law case, you may be able to set aside your judgment. Under this statute, an application for relief must be made no more than six month TERESA MCCLENDON, Plaintiff(s), vs. Restitution collected pursuant to this subdivision shall be credited to any other judgments for the same losses obtained against the defendant arising out of the crime for which the defendant was convicted. If you do not have a lawyer, talk to a lawyer if you want legal advice, someone to go to court with you, or other legal help. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. The mistake in either case must be material and excusable. You may ask the, For more information about how to complete form FL-640, read, In general, there is no filing fee. On September 23, 2019, Plaintiff filed the instant Motion to Vacate Dismissal and Enter Judgment. Consideration of a defendants inability to pay may include his or her future earning capacity. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select. 5 0 obj Motion to Set Aside Default The court may set aside an entry of default for good cause. Fed. (CCP 473(b); 664.6) The disclosure may be inspected or copied as provided by subdivision (b) , (c) , or (d) of Section 1203.05 . Source. On February 2, 2018, Plaintiff, Salvador Camacho, filed suit against Defendants, Luis Humberto Sanchez, Sanchez Construction Bobcat Y Trucking Serv ..473, subdivision (b) states, in part: The deadline for opposing a section 473 motion to vacate a judgment in California is at least nine (9) court days before the hearing and the opposition should be served by personal delivery or overnight mail under the provisions of Code of Civil Procedure section 1005. Defendant in pro per filed a timely opposition on September 22, 2017. If you have to prepare this order, you will need to fill out the Findings and Order After Hearing (Form FL-340), and an attachment detailing the orders that the judge made. (a)Written notice shall be given, as prescribed in subdivisions (b) and (c), for the following motions: (1)Notice of Application and Hearing for Writ of Attachment under If you have a lawyer, take all your papers to your lawyer to handle the case for you. (12)Motion to Set Aside Default and for Leave to Amend pursuant to Click for. Thus a force is required just to set the object in motion. Some of the peaks will be broken off, also requiring a force to maintain motion. Much of the friction is actually due to attractive forces between molecules making up the two objects, so that even perfectly smooth surfaces are not friction-free. Code, 2121. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000). hbspt.cta._relativeUrls=true;hbspt.cta.load(8398187, '26233e8e-1a6b-4012-9169-ca6419b45070', {"useNewLoader":"true","region":"na1"}); 16644 West Bernardo Dr, Ste. ), By its language, the statute only requires the affidavit be executed by an attorney who represents the client and whose mistake, inadvertence, surprise or neglect in fact caused the client's default or dismissal. Click to find out more about. 1 It is very important that your server fills out the proof of service correctly. If you have any questions, talk to a lawyer or your courts self-help center. Plaintiffs Motion to Vacate Dismissal Under CCP 473(b) is GRANTED. Child Support: Requests to Set Aside (Cancel) an Order, Special Education Rights for Children and Families, You can only have the child support amount canceled and re-calculated if you win your motion to set aside. In the declaration, include why you think the law does not apply to your situation and why the judge should not cancel the judgment or order. (Martin v. Cook (1977) 68 Cal.App.3d 799, 807.) The court may, upon terms as may be just, relieve a party or his or her legal representative from a Fill out your court forms. This is the place to go if you would like to open and save this form. Commission income shall be established by evidence of commission income during the 12-month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown. Other times, when spouses cannot agree, the court must decide how their issues should be determined. As outlined above, if you made a reasonable mistake of fact or law, you may be able to set aside the judgment. (a) a party intending to make a motion to set aside and vacate a judgment, as described in section 663 , shall file with the clerk and serve upon the adverse party a notice of The rules of evidence shall not apply at any hearing relating to the motion. Certified copies of these bills provided by the board and redacted to protect the privacy and safety of the victim or any legal privilege, together with a statement made under penalty of perjury by the custodian of records that those bills were submitted to and were paid by the board, shall be sufficient to meet this requirement. There are other legal reasons to ask for a request for order to set aside a judgment or an order. (2)Notice of Application and Hearing for Claim and Delivery under Web[TENTATIVE] ORDER GRANTING PLAINTIFFS MOTION TO VACATE DISMISSAL UNDER CCP 473(b) Plaintiffs Motion to Vacate Dismissal Under CCP 473(b) is GRANTED. The exception is premised upon the concept the attorney's conduct, in effect, obliterates the existence of the attorney-client relationship and for this reason his negligence should not be imputed to the client. (Buckert v. Briggs (1971) 15 Cal.App.3d 296, 301. hbspt.cta._relativeUrls=true;hbspt.cta.load(8398187, '039ac018-4993-48d5-8f41-bcdf646f5f9f', {"useNewLoader":"true","region":"na1"}); In family law cases, it is common for spouses to come to an agreement about the issues in their divorce case, such as child custody, spousal support, and property division. In child support cases filed by the Department of Child Support Services through the Local Child Support Agency (LCSA), the LCSA sometimes uses what is called presumed income to calculate the child support amount someone should pay. Most motions are in writing. You do not have to talk to them first, but it may save you time and avoid having to go to court if you can reach an agreement with the LCSA about your child support. 1013 will be able to access it on trellis. Please verify the status of the code you are researching with the state legislature or via Westlaw before relying on it for your legal needs. WebMotion to Set Aside Entry of Default and Default Judgment Sample Motion For Default Judgment The Forms Professionals Trust! Select Document event: https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-1005/, Read this complete California Code, Code of Civil Procedure - CCP 1005 on Westlaw. Category: Civil Procedure - Default Judgments - Motions State: Multi-State Control #: US-01704BG Instant Download Buy now Available formats: Word | Rich Text Free Preview Description Related Forms How to Guide [T]he only occasion for the application of 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded. They are listed on the first page of the. R. Civ. You must respond to the papers you received if you want the court to know your position. Generally, you have to have the papers at least 9 days before the hearing. You can have the papers served by mail or in person. WebThe trial courts power to grant a motion for JNOV is the same as its power to grant a directed verdict. You must file the motion to cancel the order based on presumed income within 1 year of the first collection of child support by the LCSA. 3. this Statute. If either side has a lawyer, the lawyer will usually be asked to prepare the order. To date, no opposition has been filed. The declaration is written on pleading paper and is usually typewritten, and must be signed and dated under penalty of perjury under the laws of the State of California. Make sure you fill out those forms completely and accurately. The order of restitution shall also include reasonable costs incurred as a result of an investigation of the violation undertaken by the owner, lawful producer, or trade association acting on behalf of the owner or lawful producer. FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. (2)Determination of the amount of restitution ordered pursuant to this subdivision shall not be affected by the indemnification or subrogation rights of a third party. If the child support default judgment against you is not based on your real income, the law gives you extra time to ask the judge to cancel (set aside) the court order and re-calculate how much child support you should pay based on your actual income. The time starts running from the date the LCSA receives the first payment (of any amount). You can use the Declaration (Form MC-030) to write out your declaration. Defendant appeared in pro per and filed an opposition ..vacate the dismissal and re-instate this matter to the trial calendar. % (11)Motion to Expunge Notice of Pendency of Action pursuant to (4) Official documentation of a movant's status as a victim of sex trafficking at the time of the prostitution-related offense or other offense shall create a rebuttable presumption that the movant was a victim of sex trafficking at the time of the prostitution-related offense or other offense. Make sure you understand the different results that could happen if you file this kind of request. (3)The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay both of the following: (A)A restitution fine in accordance with subdivision (b). You can have the other party served by mail or in person. Description: This sample motion to vacate void order in California is filed under the provisions of Code of Civil Procedure section 473 (d) and the inherent power of the Court on the grounds Remember that the explanations under Legal Reasons to Set Aside a Judgment or Order give you the laws that apply to many of the reasons for a request for order to set aside an order. ), PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED, PERSONAL INJURY/PROPERTY DAMAGE - VEHICLE RELATED, Closed Judgment: Court Default 11/19/2018, First (q)Upon conviction for a violation of Section 236.1 , the court shall, in addition to any other penalty or restitution, order the defendant to pay restitution to the victim in a case in which a victim has suffered economic loss as a result of the defendants conduct. Steps. Our PDF (n)If the court finds and states on the record compelling and extraordinary reasons why a restitution fine should not be required, the court shall order, as a condition of probation, that the defendant perform specified community service, unless it finds and states on the record compelling and extraordinary reasons not to require community service in addition to the finding that a restitution fine should not be required. Your credits were successfully purchased. Motion GRANTED. 29-3005. sfXr2$}LdpaD^@m?;.dosJ[.O0 P5pk4^ek~6tQ $pUsg\n/ $e^mfo^x{]%$-7X^WeB qPdT0Hz26c &io-F `+yG pTvnaqb)4PA5=diI93{Y:cTFYMA^DHA}AEs>ekJ+A=}=%i1XAf"D:8pZ`e[lJ. In either situation, the court eventually enters a judgment. 2, ch. . if you reasonably misunderstood the legal consequences of certain facts, you may be able to set aside your judgment. Such official documentation shall not be required to obtain relief under this section. (C)A factor indicating that the interests of justice would not be served by conditionally sentencing the defendant under Section 1203 . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any, (Code of Civ. The Motion is to be set for a hearing on _____ (date). WkZNj%e"qq'V %>!>OUFJf]VA>Z8\- cstg+6K}XG@"cZd+H(J0NsXV8W}Jv3W_0tf_0}mg6]}TwGVU4J"2Q_*YT^PU]Vt;~Ods}#i[UC%Ngl|*%$)g:jMAf$JVbR :4\CPL7K,BI;3Vp9]Wpw-]0966Z[PJdZ`lSUawbt8Ja On 10/27/16, the Court discharged the OSC re: proof of service in light [TENTATIVE] ORDER GRANTING PLAINTIFFS MOTION TO VACATE DISMISSAL UNDER CCP 473(b) . What Is Considered A High Net Worth Divorce. The court considered that Mr. Heggie did not have an obligation to update Ms. Heggie about the stock values. Plaintiff Luis Mo ..o Defendants Easy Flow Electrical, Inc., Gabriel Pena and Yu Suk Gaither; and for failure to serve/prosecute Defendant Benny Harris. (7)Notice of Hearing of Third-Party Claim pursuant to If it was denied, it means the child support judgment or order you were trying to cancel continues to be the courts order. If your spouse lied on his or her disclosures (Schedule of Assets and Debts and/or Income and Expense Declaration), you may be able to obtain a set aside based on perjury. ), As a general rule the accident or mistake authorizing relief may not be predicated upon the neglect of the party's attorney unless shown to be excusable because the negligence of the attorney in the premises is imputed to his client and may not be offered by the latter as a basis for relief. The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant. Note that the Family Code gives you a deadline of one year from the entry of judgment while the Code of Civil Procedure only gives you six months. (2) At any time following the completion of sentence or disposition, a victim of sex trafficking convicted in county or district court of, or adjudicated in a juvenile court for, (a) a prostitution-related offense committed while the movant was a victim of sex trafficking or proximately caused by the movant's status as a victim of sex trafficking or (b) any other offense committed as a direct result of, or proximately caused by, the movant's status as a victim of sex trafficking, may file a motion to set aside such conviction or adjudication. 265 General rules for a motion to cancel (set aside) a child support order based on presumed income: To file a Notice and Motion to Cancel (Set Aside) an Order Based on Presumed Income, follow these steps: Read Going to Court to find out how to prepare for your court hearing. (2)A corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime. | https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-1005/. (6) Upon request of a movant, any hearing relating to the motion shall be conducted in camera. Adding your team is easy in the "Manage Company Users" tab. The deadline to file such a motion is one year after the date when you discovered (or should have discovered) the failure to comply with disclosure requirements. Sign up for our free summaries and get the latest delivered directly to you. The court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in ent VACATE DISMISSAL; ENTER JUDGMENT PURSUANT TO STIPULATION (9) Notice of Hearing of Application for Relief pursuant to Section 946.6 of the Government Code. Such official documentation includes: (a) A copy of an official record, certification, or eligibility letter from a federal, state, tribal, or local proceeding, including an approval notice or an enforcement certification generated from a federal immigration proceeding, that shows that the movant is a victim of sex trafficking; or. WebA 995 motion (pronounced nine-nine-five) is essentially an appeal of the preliminary hearing judges decision to bind the case over for trial. Enter the case number using correct format and ensure case name and number match the document you are filing. *b|inFFui@e#+<4x;:S'4N][;@Z10N Our PDF editor enables you to fill out any form efficiently. Proc., 629 .) The Response youll need to complete will be a court form, but the exact Response you need to complete is dependent (2)In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted. 263 Importantly, you must bring a motion to set aside a judgment under Section 473(b) within a reasonable time, in no case later than six months after the judgment, dismissal, order, or proceeding was taken. You already receive all suggested Justia Opinion Summary Newsletters. If the amount used is more than you actually make, then the child support amount you are ordered to pay may be too high. Background (c) Victim of sex trafficking means a person subjected to sex trafficking or sex trafficking of a minor, as those terms are defined in section 28-830. Stay up-to-date with how the law affects your life. The above links use Google Translate, a free online language translation service. by clicking the Inbox on the top right hand corner. Case No. The debtor must file a Notice of Motion for Order Without Hearing under LBR 9013-1. It is very important to include detail in your Declaration so the judge understands why your situation fits the law, and why the order should be canceled so you can participate in the case. 1:30 p.m. (C)At the time of the crime was a person who had previously lived in the household of the victim for a period of not less than two years in a relationship substantially similar to a relationship listed in subparagraph (A). If you wish to keep the information in your envelope between pages, If you do not respond, the court may grant the other sides request to cancel the existing judgment or order and you will have to start over with getting the court orders you want. The deadline to file a set aside motion based on perjury is one year from the date you learned (or should have learned) about the perjury. . of The order of restitution shall be based on the aggregate wholesale value of lawfully manufactured and authorized devices or articles from which sounds or visual images are devised corresponding to the number of nonconforming devices or articles involved in the offense, unless a higher value can be proved in the case of (A) an unreleased audio work, or (B) an audiovisual work that, at the time of unauthorized distribution, has not been made available in copies for sale to the general public in the United States on a digital versatile disc. Many self-help centers or family law facilitators have samples of a Memorandum you may need for your particular situation. Call today for a free consultation with one of our family law experts. If you or your lawyer failed to meet a court deadline because of a language translation issue, physical or mental illness, or a disability, you may be able to set aside your judgment on this basis. The other party may still have other legal remedies such as an appeal or a request for reconsideration, so talk to a lawyer for more information if you are served other documents. Code, 2123.). (g)A defendants inability to pay shall not be a consideration in determining the amount of a restitution order. (e) Email, text, or voicemail records between the movant, the trafficker, or solicitors of sex that reveal aspects of the sex trade such as behavior patterns, meeting times, or payments or examples of the trafficker exerting force, fraud, or coercion over the movant. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. (2)As used in this subdivision, audiovisual work and recording shall have the same meaning as in Section 653w, California Business Lawyers & Corporate Lawyers, Labor Commissioner Board Complaint Defense. (8)In its discretion, the court may relieve the defendant of the duty under paragraph (7) of filing with the clerk by requiring that the defendants disclosure be submitted as an attachment to, and be available to, those authorized to receive the following: (A)A report submitted pursuant to subparagraph (D) of paragraph (2) of subdivision (b) of Section 1203 or subdivision (g) of Section 1203 . Write that you are asking for a set aside under Code of Civil Procedure, section 473(b) in your reason. The financial disclosure required by this paragraph shall be filed with the clerk of the court no later than 90 days prior to the defendants scheduled release from probation or completion of the defendants conditional sentence. You're allowed to file for a set aside for up to 6 months after the judgment was made. (9)The court may consider a defendants unreasonable failure to make a complete disclosure pursuant to paragraph (5) as any of the following: (A)A circumstance in aggravation of the crime in imposing a term under subdivision (b) of Section 1170 . ), A motion seeking relief under 473 lies within the sound discretion of the trial court, which must be exercised in a manner which will serve the spirit of the law and serve the ends of substantial justice.
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