Standing to Foreclose, and Holder in Due Course with Rights to Enforce
And Why You Should Never Make an Admission to a Contract of Indebtedness
There are lots of valid foreclosures defenses that have worked, and there are hundreds of thousands of cases that have been won or settled by those who chose to fight.
However, most of the winning cases are settled under seal of confidentiality. So, you only hear about are the losing foreclosure cases. Therefore, you might get the impression that there is nothing you can do to stop a foreclosure sale or win a mortgage fraud lawsuit or foreclosure fraud lawsuit against the banks.
This is not true; because there are plenty of things that you can do to stop a foreclose and win against the banks committing foreclosure fraud and mortgage fraud. Many lawyers and Pro Se litigants have won cases against the banks, across the country; and even more cases have been brought to the point where the cases are settled, very beneficially, in the favor of the homeowner(s).
To win your mortgage fraud lawsuit or foreclosure fraud lawsuit you need information, understanding, and a strategy based upon an accurate understanding of the facts surrounding standing to foreclose as a holder in due course with rights to enforce. Basically, you need to know what is missing from the claim(s) asserting foreclosure. You need to understand the claims of Standing based upon the claim that the party attempting to foreclose is a holder of the promissory note with rights to enforce the original mortgage or deed of trust. Which may, or may not, be the same as the original promissory note that you executed at the time of the closing.
Remember the 2007 study which showed that a minimum of 40% of all notes were intentionally lost or destroyed by the banks. Considering the 2007 study and the testimony of the Bankers Association to the Florida Supreme Court in case number NO.: 09-1460 that “The physical loan documents were deliberately destroyed to avoid confusion upon their conversion to electronic files,” miraculously however banks and servicers have nevertheless been able to provide so-called originals. Which means they’ve been fabricating these so-called originals in an ongoing scheme to continue to illegally foreclose on innocent homeowner’s properties.
So, let’s pick apart the usual configuration of the false claims of Standing, and holder in due course with rights to enforce, as an effort to provide you with more ammunition to contest the claims of Standing, based upon being a holder of the note.
Boiling it down to the simplest explanation there is a major difference between enforcing the promissory note, which is easy to do, and enforcing the security instrument (mortgage or deed of trust).
Some case law (and attorneys) would have you believe that if you can enforce the promissory note that automatically means that you can enforce the security instrument (mortgage or deed of trust). Those cases (and attorneys) are wrong!
That aside, unfortunately, the difference between enforcing the note and enforcing the mortgage / deed of trust is most often ignored or overlooked by lawyers and judges alike.
Remember the judges are not supposed to fill in the gaps if you don’t present your case correctly. So even though you might think you’re right, and you’ve got some case law and evidence to prove your point, if it’s not presented in an organized way and persuasive way, the judge is most likely not going to rule in your favor.
This is a major reason to hire a good lawyer rather than litigate pro se. However, if you must litigate pro se because you cannot afford a good lawyer, or you don’t want one, you must take the time to get legally educated. Because if you proceed pro se and your legally ignorant you are going to lose! Even worse if you hire an attorney and your legally ignorant you could lose your case and pay for it too!!
So, no matter how you decide to proceed (represented by an attorney or Pro Se) you must get legally educated.
For more information on how to do this get the How to Win in Court Education program by clicking here: www.fraudstoppers.org/education
Now if you are intending on hiring an attorney, you should be aware that there are some lawyers who have given up in foreclosure defense because they do not understand the realty of how table funded securitized mortgage loan transactions really work.
The difference between enforcing the note and enforcing the mortgage is created by state law in all 50 states all of them have adopted the Uniform Commercial Code as the law of that state. Something that escapes most judges and lawyers, it is the Law not because I say so but because the legislature enacted it as law. The governor signed it and there is no decision ruling the state adoption of the Uniform Commercial Code as unconstitutional. It is the law and all cases construing provisions of the UCC accept it as the law. Now there are differences from state to state with legislature has tweaked some provisions of the UCC which it had total power to do but by and large all provisions of all states governing negotiable instruments are the same.
Now there are other defenses if you can reveal facts that undermine the claim that the note is a negotiable instrument then neither the instrument nor the claims based upon the instrument are entitled to any legal presumptions arising from the UCC. In that case, the case is converted from facts and absences of facts on one hand versus the UCC legal presumptions to a case of just facts versus facts in which case home owner should win most of the time and banks would lose. But truth is that attempt is virtually impossible.
So, while there are academic arguments favoring the homeowner, there really is little or no case law supporting that Avenue? An instrument under article 3 section 104 of the UCC an instrument is negotiable if it is an unconditional promise to pay a specified amount within a specified time. Virtually all notes meet this definition in the foreclosure setting there’s a slight opening if you could show or reveal that the party named as payee was not accepting an unconditional promise to pay. That the maker was intending to make the note payable to the party that gave him the loan but even though we know the payee was accepting the note as a sham conduit for other parties who in turn were sham conduits and that the issuance of the note was executed under false pretenses. That’s a hard road to follow so I would look elsewhere for analysis it’s likely to get better traction in court.
So now let’s talk about what does get traction and how you can get win in court by collecting information, and understanding what that information means, in the legal scheme of things.
You start your defense against claims of standing that are based upon being a holder with a simple denial. They say they’re a holder and you (the homeowner) deny it.
If you don’t do this then it will be presumed that you admit it especially if you admit it outright. And they might be a holder, but you want them to prove everything possible and you want to make things to be an issue, so it can broaden the potential scope of discovery.
The strategy is simple, admit nothing and make them prove everything, while preserving your timely and well framed objections for appeal.
In non-judicial states it gets trickier because the homeowner must bring a lawsuit to get a temporary restraining order (TRO) to stop the foreclosure sale or process. In this TRO, essentially you are denying an allegation that has not yet been made formally, although there is a tacit allegation if there is a substitution of Trustee.
In responding to the banks notice of default (NOD) or the notice of sale, the suit for temporary restraining order (TRO) is to deny that the self-proclaimed beneficiary has standing, or as a holder of the note or has standing, to enforce the deed of trust. Precisely for that reason that it is self-proclaimed the object is to show that while the pleading requirement is satisfied by asserting holder status in other words a motion to dismiss or Tamara would be denied. The proof requirement at trial is not necessarily satisfied at the pleading stage, all allegations in a judicial complaint is taken as true but only for purposes of the pleading stage and surviving a motion to dismiss.
The motion to dismiss filed by the homeowner after carefully reviewing and analyzing exhibits might be able to complain that the exhibits are inconsistent with the allegations of the complaint and that in such event the exhibit controls. That’s the general rule if you see something in the complaint and you attach an exhibit that says something different the exhibit controls.
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This is used to show that the so-called possession or endorsement of the original note had not yet occurred at the time of filing; hence the court lacks jurisdiction and the action should be dismissed. But this is only a temporary fix since the complaint will be dismissed without prejudice to bring the action again it buys time but little else. While these strategies would get the judge to put the burden of proof squarely on the Pretender lender most often the burden falls on the homeowner to prove things that are known to be true but the evidence corroborating the homeowners challenge is strictly within the care custody and control of the undisclosed parties behind the curtain that shields them.
This curtain stands it’s a legal curtain stands in back of the party who has proclaimed its status as beneficiary under the deed of trust. That curtain is usually sufficient for both lawyers and judges to ignore the parties who are actually directing the foreclosure.
Although in truth the concealed parties are also not the real parties in interest any more than the self-proclaimed beneficiary. So, emphasis should be concentrated on the claim being a holder in all events that requires educating yourself and educating the judge. Opposing counsel will always rely upon the illusion of legal presumptions and will never rely upon an allegation of facts where he’d have to prove it unless the fact is that you already admitted that the self-proclaimed beneficiary is the beneficiary and believe it or not I’ve seen most of the cases. I’ve seen that we’re lost were lost because the pleading of the homeowner essentially accepted or consented or admitted the fact that the party initiating the foreclosure had the right to do so.
The homeowner must rely upon facts not legal presumptions there are very few legal presumptions we’ll help a homeowner in this setting. In fact, the homeowner should relentlessly attack the legal presumptions in favor of the foreclosing party, because they’re being used to produce a finding of fact in court that conflicts with the real facts in real life.
You must first start your analysis with a loan that has been sold or subject to claims of securitization false or otherwise. If the foreclosing party is the original lending institution that in actual truth funded the loan and never sold it is not a holder a new course or a holder it is the creditor and doesn’t need any of the presumptions that arise in the application of the UCC. It’s pleading would say we are the lender here’s the note here’s the mortgaged home owner didn’t pay we want a foreclosure to pay the debt owed to us. If the homeowner we’re to contest that the lender was not the lender then as part of its prima facie case the lender would have to produce proof of payment funding a loan which you could easily do.
If the foreclosing party is not the lender which in most cases is true today, then you must start your analysis with the definition of a holder in due course. There’s a reason I start with that article 3 section 302 of the UCC. It is only against the backdrop of the definition of a holder in due course that you can analyze the claims of a self-proclaimed holder. In the real-world pretender lenders never assert the status of holder in due course but failing to assert that position casts a shadow which I will describe in a moment over there right to enforce the mortgage or deed of trust under article 9 of the UCC which requires that value be paid before the holder of the they use the instrument to foreclose. Just because they say they own the mortgage doesn’t give them a right to enforce the mortgage through foreclosure. They must have paid value for it.
If a party can plead and prove it is a holder in due course, then virtually all the fences by a homeowner all defenses to enforcement of the note of the mortgage are eviscerated. They’re gone you have no defense, but you have claims against those intermediaries who serve the Sham conduits in making false claims to your paper. And who may have deceived you into executing a noted mortgage in favor of a party other than the one you intended which is of course the party who gave you the money. So, in the holder in due course status none of those issues can be raised against a party enforcing the note or the mortgage, because the holder in due course is paid for. So, anyone who can claim and prove the status of home holder in due course would want to do so because it knocks out the defenses and in fact it would be legal malpractice for the lawyer not to do so.
You still never see the Pretender lender asserting the status of holder in due course even though they would so greatly benefit, supposedly if they could do so. The main provision of article 3 section 302 which I remind you is law of the state and law of the land, is that to qualify as a holder in due course you must be a holder who took the instrument for value which means you paid for it in good faith. Without notice that the instrument is overdue or has been dishonored or that there is an uncured default and without knowledge of the borrower’s potential defenses the interesting point here is which of these elements is the Pretender conceding does not have.
For starters they obviously have not paid anyone for the right to own or enforce the debt and therefore the right to enforce the mortgage under the UCC as adopted by the state. But they still might have the right to enforce the note but if they have possession of it and it’s endorsed to them or its bearer paper because it was endorsed in blank.
That is what for value means. If that is true, then the Pretender lender must be acting for someone else who did pay for the debt at origination of the alleged loan transaction or later when a supposed transfer occurred but then that would make the entity.
If such an entity exists, who paid the money for the debt they would become the real party in interest so like the trust which everybody thinks is the real party in interest. And is not because it never made such a payment because it was never in business they can’t claim to be the holder in due course which of course would avoid virtually all bar or defenses. That’s why they allege assert that they are a whole and not a holder in due course. Why didn’t they bring the action in the name of the party who paid?
More importantly by what power of appointment or power of attorney or other agreement is the Pretender lender bringing the action since the outcome the ultimate outcome runs to the benefit of the party who paid for and received ownership of the debt. And presumably the mortgage and a note remember that splitting the mortgage and the debt doesn’t invalidate the mortgage, but it also prevents the enforcement of the mortgage.
So, it stays as a lien, but it can’t be foreclosed or were they not acting in good faith that’s another element of a holder in due course? Is that what is stopping them from asserting holder in due course that raises some real interesting questions in a court of equity how are they not acting in good faith? Or did they know that the instrument was already overdue in default or otherwise that there were potential borrower defenses and if so what were they?
What were the defenses they knew about or do they know that an unauthorized signature has been a fix to the note like the allonge that doesn’t qualify as a allonge really sounds like forgery and robo-signing.
Or did they know that the maker of the note has defenses and potential claims for recoupment? These are questions of fact and by raising the questions of fact you get into a different area of litigation that allows you more latitude in what you want to do in discovery and so forth. These facts are implied by the abandonment of any claim to be a holder in due course and of course there’s also the virtual impossibility of them providing a true and correct chain of custody because you must show possession of the note.
Raising issues as to possession of the note and how the original came into their hands especially after they initially claimed that as it is in many cases a lost note and then proceeded without the slightest explanation of how the so-called original note was recovered.
So, by relating back to the definition of a holder in due course the judge as to the relative positions of a holder in due course then go down one notch to a holder then down another notch to a possessor with rights to enforce. Then down another notch to a possessor and then down another notch to someone who neither has the note nor do they have any evidence of a transfer endorsement etcetera.
Under article 3 section 301 of the UCC, a person is entitled to enforce means the holder of an instrument or non-holder in possession of the instrument who has rights of a holder or a person not in possession of the instrument who was entitled to enforce the instrument. And that would be agency showing that the owner of the debt has given another party the right to enforce the debt in their own name pursuant to a contract between this pretender lender and the owner of the debt.
The problem is for the banks they don’t have an owner of the debt and that’s explained on my blog. But if you take that as just basic truth that they don’t have an owner of the debt you’ll see how many lawyers have won their case by just understanding what was missing and why it was missing.
So, holder means a person in possession of a negotiable instrument that’s payable to either the bearer or an identified person that is the person who is in possession. The holder is a legal person who has received delivery.
We understand the operating documents of the Pooling and Servicing Agreement and if the security evidence by the mortgage security instrument, conveyed with the tangible note negotiation, before the cut off data of the REMIC.
We are familiar with how you would sit down and break down a true sale from party A from party B to convey the security and to maintain the fiduciary duty under the Common Law Deed of Trust to release and reconvey, release and reconvey, to maintain clear and marketable title.
So, we know the foundation under the UCC for that.
Then, we also understand the underlying arguments that the banks and their attorneys use against people making securitization foreclosure defense arguments, which may have done a proper statement of fact as to what’s required to accomplish a true sale between all these parties and maintain perfection over the lien.
However, the banks and their attorneys are going to succeed by not having a Chain of Title, by stating that they negotiated the note in Bearer Form under Article UCC 3205 Sub section B with no payee named as a bearer instrument.
This essentially gives them a purported temporary perfection of the original holder, while they physically transfer the instrument, by daisy chain, which doesn’t require for them to maintain a Chain of Title, until the instrument is specially endorsed.
This is how the banks and their attorneys beat almost everybody from New York to California on standing, and whether or not they had a secured interest over the lien; because nobody has a the way to argue against whether or not they made the instrument of bearer paper and physically negotiated it, because they weren’t required to maintain a Chain of Title in that aspect.
So that’s how the banks and their attorneys can win nine times out of ten. Because what they’re saying is that in the negotiation under 3205 B, the security followed the note, whenever the custodian of record received the instrument prior to the cut-off date, making the note and the security securing trust property before the cut-off date.
That’s how the banks and their attorneys can beat you.
So, let’s reverse engineer this, let’s take that note all the way back to the closing, and reverse the whole concept and transaction.
What you must be able to show is that you have one purported transaction, concealing the realistic transaction.
Did the lien’s beneficial interest maintain perfection, and was it therefore eligible to be negotiated with the note in that capacity, as statutorily required?
However, what that would require that you were the actual creditor and that you actually made that note as a maker issuer, for the purposes of being the beneficiary of the debt that was created.
This is what the banks and their attorneys want you to believe in the matter of equity:
- That your signature was as a maker issuer and therefore created value to the instrument
- You negotiated with the party that you sat down at closing with
- They accepted the instrument by negotiation
- They were a federal reserved depository institution that could accept article three instruments by deposit
- They gave you consideration in the form of cash, not Ultra Vires, for your promise to pay instrument executing an underlying indebtedness contract.
Well in an IRC 1031 Like Kind Exchange, Table Funded Securitized Mortgage Loan Transaction that didn’t happen. That did not happen; that negotiation, acceptance and consideration is not what a table funded securitization transaction is!
So, the money is not created from your signature, negotiated and then the note negotiated between state to state physically, that doesn’t happen in a table funded transaction. Rather it’s in direct reverse engineer – the money was created from the sale of the certificates and the special deposit, special purpose vehicle on Wall Street.
They take the certificate holders funds to the securities to special deposit the pool of assets. That pool of assets is used in the SPV alternative investment opportunity through the warehouse line of credit, and that’s what the sponsor bank is using as the table funding credit in the transaction itself.
So yes, we would have some arguments like robo-signing and the improper negotiation, transfer, and delivery of the mortgage loan contract all the way through the securitization scheme, as part of the material defects found in the transactional scheme itself – but what we don’t want to do is provide any language as an admission to you being the account debtor.
You also want to make sure you understand what is meant by using terms like the “alleged debt”, because you’re going to piss the Judge off, badly; a lot of people do it. Because, they don’t know how to speak to the transaction as it relates to what that means.
So, let me give you the perspective that the Judge is going to have. The Judge is only looking at the intent of the contract. So, all the little details, the semantics of this right now, the first thing the Judge is going to do, is look at it from a cursory equity standpoint.
Q: Did you intend to get a home
Q: Are you in a home?
Q: Okay, so you’re in the collateral.
Q: Okay and did you intend whenever you went to go get the home to get an obligation or a loan associated to that.
Okay, yes that’s obvious or else you wouldn’t be in the collateral
Q: Okay so you’re in the collateral – an obligation exists – and you also pledged a lien to encumber your property to secure that obligation, so that if you couldn’t perform on the contractual payment obligation the holder of the obligation would have the lien to enforce, do a foreclosure sale to enforce an ultimate means of collection.
Okay. So just looking at the intent of the contract, you are in the collateral, you know that you signed something at the closing- there’s an obligation – and it’s in default.
The institutions claiming to be the holder of that obligation and to be the secured party of record via an assignment of the security instrument perfected in public record.
Are there any other parties that are involved in this transaction?
And if some other financial institution was holding an obligation and saw that deed of trust or signed with a deed of trust recorded on public record, they would immediately file to acquire the title and they would be there defending their right to the obligation and the collateral itself.
So, because there’s no other financial institution showing up claiming to be the holder and to having a subsequent assignment of deed of trust or mortgage recorded for enforcing through a foreclosure action – than nine times out of ten – the Judge is going to give the party holding the obligation the benefit of the doubt as a matter of the intent of the contract.
So, in terms of the intent of the contract, this is where it becomes so viable for you to understand, what your capacity into the transaction is.
When the judge asks you:
“Did you sign the note – in the effort to get the collateral?”
Your answer is “Yes.” – But you need to be able to specify the answer to yes as “well yes your honour but I’m not the account debtor. I signed into this transaction as an accommodation party or guarantor. The party that I signed as a guarantor for, made available the obligation through a securitization transaction without my knowledge and purportedly negotiated the security evidence by the deed of trust/mortgage lien that I pledged to them, uniquely, to secure these receivables in this transaction as well.
What I need to know your honour is does my lien secure the tangible contractual obligation or does it secure the receivables?”
The answer to the receivables is no. You cannot attach article 9 to the UCC receivables (securities) to enforce a lien on real property. A lien on real property under revised article nine is not secured by a lien on real property, so article nine does not fit the common law argument that the transfer of an obligation carries the beneficial interest of the lien and the lien itself.
Here is the lie that the banks almost always defeat homeowners with.
“Here’s a copy of the note your honour, the security follows the obligation we all know that.”
Yes, that’s accurate, under common law and U.S. Supreme Court. Carpenter v. Longan (1872) the note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity. Furthermore, under revised article 9 of the Uniform Commercial Code (UCC) the banks do not necessarily have to record each transfer of the mortgage loan contract in public records; all they must do is, in essence, be in possession of the note and they can claim rights to enforce it.
Therefore, you need to be able to be able to explain (and prove) how your capacity is to the obligation. “Your honour I am not the account debtor. I was a guarantor to this party. I am not a guarantor to everybody else that claims to be the holder of the obligation”.
And it’s their capacity of an accommodated party to the certificate holders on Wall Street. They’re not the real creditors. Their job is to put the certificate holders into funds associated to your payment string.
All of this is predicated on laying the proper order of operations, in line with statutory capacities, that clearly part and parcel and separate the root question of: Does revised article nine and liens on real property secured defaulted receivables in a securitization transaction?
That’s your root question.
You must be able to have it all put in the proper sequence in statutory capacities, as it relates to your state, and what took place to defend the lien itself the property.
How have you been harmed?
In pre-foreclosure it’s not so much that you’ve been harmed, it’s whether they have clean hands in the transaction. So, this, at its root is an Equitable Estoppel issue. In the like kind exchange transactional scheme there is a senior secured party and a junior secured party – the originator of the loan (named on the note as the lender) is the senior secured party, and the trustee for the REMIC trust is the junior secured party.
But it’s one transactional scheme, its one organism, so you must be able to show that they – in the race of diligence – that the junior secured party made sure that the originator recorded that underlying security of trust, so they could perform the rest of the transaction. But ten years later upon default of the receivables, to cause an assignment of the beneficial interest of evidence about your underlying security instrument, that security instrument doesn’t maintain perfection from now, until infinity. You can lose perfection over that lien.
So, having the proper capacity, order of operations, and then statement of facts of how they lost perfection, and to show that it is inequitable for the holder of the receivables to attempt to cause an assignment of the underlying security instrument, because they were only negotiated the receivables, with unclean hands. That’s what you must show that they don’t have an equitable claim to.
Hypothecation is a third party pledging collateral on your behalf. So, let’s say for instance, if you pledged the real property to the originator party on the ten thirty-one exchange transaction scheme you specifically gave legal title to that party. Not to the trustee under that instrument, and the beneficiary of the security instrument. The beneficiary of the security instrument then in turn pledged a separate and subsequent value – which is the proceeds of the real property.
Let me give you an example. Consider a wheat field. The land is the real property, but the Wheat and the Harvest are the proceeds of the real property.
In this securitization transaction the original secured party is granting the proceeds, the actual required collateral to the real property and hypothecating that proceed as the payment intangible, which is the transferable record on the obligation.
So, you must be able to show that it’s under revised article nine; it does not apply to liens on real property. It may apply to title loans, student loans, and unsecured obligations, but it does not apply to liens on real property.
Remember, it’s either you sold the contract in its entirety to a successor and interest through a true sale; or you sold the underlying tangible value of the contract.
Remember when people paid off their loans and they received their notes and their deed back, and they would have deed burning parties?
That doesn’t happen anymore because that transactional scheme where that was your note, that you made and negotiated with a bank that could accept it, deposit it, and give you real money for a loan so you could purchase the property. That’s the savings and loan model.
In that transaction the bank you contracted with actually risked giving you real money and was going to hold that thirty-year instrument until its full rate of return. Its portfolio division wanted to buy that obligation and they underwrote you as your credit worthiness and they gave you the loan. You had skin in the game, you qualified financially, and they were willing to take a risk on you. That was a real contract between you and the bank.
But what happened with the securitization bubble is they lifted the Glass–Steagall Act and the Gramm Bliley Leach Act and they made way for this transactional scheme where they could divert the risk of creating the money, which was done by lying and cheating the certificate holders through a perspective supplement which was pre-fabricated on the yield spread of those securities, under the nineteen thirty-three, thirty-four Security and Exchange act.
So, they went to Standards & Poor’s and they got all those credit enhancements and they pre-sold those securities. Well that’s what the special deposit is for the REMIC trust, the trust vehicle; the special purpose vehicle. So, through special deposit, they generated those funds with the sale of the securities, that’s what makes the credit swaps available for the sponsor bank, to work with the originator to the table fund transaction.
Once you’re able to understand the blue print of the transaction and then you set the order of operations in place, and then you couch the interested parties, and then couch their capacity, and then what are they negotiating and what’s its statutory intangible interest, and what governs that, and once you set the mouse trap in place, and it can follow the order of operation it’s not that complicated.
To get to the root question you just must be able to see all of that and to be able to understand the root questions.
The root questions are “in what capacity did you sign the note (as maker/issuer) or as an (accommodation party/guarantor), and “is the party attempting to foreclose on the property a holder in due course with rights to enforce the security provisions of the mortgage or deed of trust”?
If your loan was part of a table funded securitized transaction where the note and mortgage were converted into a mortgage backed security and sold to a Wall Street trust, then you most likely signed the promissory note as a guarantor; and therefore, party attempting to foreclose on the property would not be a true holder in due course with rights to enforce; because the security instrument (mortgage or deed of trust) would be legally void and of no effect.
To discover if your mortgage loan contract fits this fact pattern, or to determine if you have legal standing to file a cause of action against your mortgage lender join FRAUD STOPPERS PMA today and get the facts and evidence that you need to gain the legal remedy that the law entitles you too, and that you deserve at www.fraudstoppers.org/pma
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