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Archive for the ‘Chapter 7 bankruptcy’ Category

When a Chapter 7 Trustee Doesn’t Liquidate Non-Exempt Property

June 14th, 2017 at 7:00 am

Just because you own something that isn’t exempt does not necessarily mean that your Chapter 7 trustee will liquidate it. Maybe not.

Our last blog post was about the most straightforward kind of no asset” Chapter 7 case. That’s when it’s clear that everything you own is “exempt”—fully protected. The property and exemption schedules that you and your bankruptcy lawyer prepare and file at court show this. Your trustee asks a few confirming questions at the “meeting of creditors” and announces that your case is a “no asset” one. That means that there’s nothing you own that the trustee wants to liquidate and pay its proceeds to your creditors.

But if you do own something that isn’t exempt. What happens then?                                     

The Chapter 7 Trustee’s Task

If you have an asset which isn’t exempt from the trustee’s liquidation, he or she doesn’t necessarily liquidate it. According to the Handbook for Chapter 7 Trustees:

The trustee should consider the likelihood that sufficient funds will be generated to make a meaningful distribution to creditors prior to administering a case as an asset case.

In other words, before liquidating anything the trustee needs to decide whether it’s practical to do so. The trustee needs to consider whether enough money would come from the liquidation for a “meaningful distribution” to your creditors.

Considerations about Whether to Liquidate

The following are some of the considerations for the trustee about whether to liquidate an asset of the debtor:

  1. accessibility—is it readily available or not?
  2. liquidation costs—do those costs eat up a substantial amount of the anticipated proceeds?
  3. marketability—is there a risk that the asset cannot be liquidated for a worthwhile price?
  4. burdensome—does the asset have attributes that make is potentially detrimental to the trustee?
  5. “meaningful distribution”—given the number and nature of your debts, will the creditors receive an amount worth the administrative effort involved?

1. Accessibility:

You own a boat that is worth about a $1,000. It was located 1,000 miles away in a remote area on lakeside land that got foreclosed last year. You have not seen it in two years and so are not even sure if it’s still there. Its accessibility is questionable.

2. Liquidation Costs:

Assume that you’ve had a relative verify that this boat is still in the boat shed on the property. But because of the remote and rustic location, the trustee would have to pay a substantial amount to have an agent retrieve, transport, and sell the boat. Those costs could be more than the boat is worth.

3. Marketability:

Under the same facts the boat is not readily marketable at its present location because of its remoteness. The lake is very small, with only very few other landowners who might be interested in buying the boat. There’s no marina or boat broker for a couple hundred miles, with the the nearest local newspaper nearly as far.

4. Burdensome:

The new owner of the foreclosed property does not want the boat and indeed is threatening to charge storage fees. The boat not only has no net liquidation value, it is turning into a burdensome liability.

5. “Meaningful Distribution:

Even if the facts were different so that a trustee believed the boat could net $800 after some relatively modest costs of sale, most likely the trustee would not bother. The trustee is entitled to a 25% fee, or $200 here, leaving only $600 for the creditors. If, for example, you have any “priority” debts (recent income taxes or child/spousal support arrearage), those would be paid first out of that $600 before your other debts would receive anything. Since you’d have to pay these tax/support debts anyway, there’s no practical benefit to going through all the administrative effort of liquidating the boat and distributing the proceeds. The creditors would not receive a “meaningful distribution”—nothing or close to nothing, in this example.


So what happens next, once the trustee decides not to liquidate your otherwise non-exempt asset? We cover that in our next blog post about “abandonment.”


A Chapter 7 “Means Test” Calculation Adjustment

March 7th, 2016 at 8:00 am

As of April 1, 2016 you can have a little more “disposable income” and still pass the “means test” to qualify for Chapter 7 bankruptcy.


Means Test

The “means test” determines whether you have enough income after your expenses (that is, enough “disposable income”) to repay your creditors a certain amount. If you don’t have enough disposable income, then you qualify for Chapter 7“straight bankruptcy.” Otherwise you must instead deal with your debts through a Chapter 13 “adjustment of debts” case.

Chapter 7 allows you to discharge (legally write off) all eligible debts in a process taking 4 months or so. In contrast Chapter 13 requires you to pay debts as much as you can afford to in a payment plan lasting usually 3 to 5 years. Chapter 13 may give you some significant advantages over Chapter 7. But in many other situations being able to discharge debts in a matter of a few months makes Chapter 7 the much preferred option.

Exempt from the Means Test

You don’t have to take the means test to qualify for Chapter 7 under two sets of circumstances:

  • if your debts are primarily business debts instead of consumer debts
  • if you fall into one of several military service categories

(We’ll cover these exemptions from the means test in the next couple blog posts.)

The Easy Part of the Means Test

Assuming you don’t qualify for an exemption and have to take the means test, it consists of a number of parts. If you pass the first part, then you pass the entire means test and qualify for Chapter 7. You don’t have to go through the remaining parts. Many people who pass the means test do so this way.

This first part determines whether your income is low enough. It’s low enough if it’s no more than what is called the “median income” amount for your family size and your state.

Calculating your “income” for this purpose is different than you’d think. It’s based on a very broad meaning of “income,” money from almost all sources. This “income” is calculated from money received not in the prior tax year but rather precisely during the 6 full calendar months before the bankruptcy case filing. Then that “income” is compared to published median income amounts for your family size and state of residence.

The rest of this blog post assumes that your income is greater than the applicable median income amount. That’s because we’re focusing now on the parts of the means test that require going beyond this initial “income” part.

Calculating Your Allowed Expenses

If you aren’t exempt from the means test and your income is above the state median for your family size, the next step is to subtract your living expenses from your income.

For many expense categories you don’t use your actual expenses. Instead you use IRS National Standards for expenses such as food, clothing, and health care. For expenses such as housing, utilities, and vehicle operation, you use IRS Local Standards. These National and Local Standards can be found here.

For your remaining expense categories—for example, mortgage and vehicle loan payments, childcare, court-ordered payments, life insurance, involuntary payroll deductions, ongoing charitable contributions, and taxes—you can use the average amounts you actually are paying.

Too Much Disposable Income?

If your allowed expenses are more than your income, then you pass the means test.

If your income is more than your allowed expenses then whether or not you pass the means depends on some remaining steps.

Subtract the expenses from the income to get your disposable income. Multiply that amount by 60. If that amount is less than $7,700, you pass the means test. You are considered to not have enough disposable income to be able to pay a meaningful amount to your creditors.

For example, if your monthly disposable income is $100, that amount multiplied by 60 equals $6,000. Since that is less than $7,700, you’d pass the means test.

But if your disposable income multiplied by 60 results in an amount more than $12,850, you don’t pass the means test.

For example, if your monthly disposable income is $250, that amount multiplied by 60 equals $15,000. Since that is more than $12,850, you’d not pass the means test.

And if your disposable income multiplied by 60 results in an amount between $7,700 and $12,850, then compare that amount to 25% of your total unsecured debts. If the amount is less than this 25% amount, then you pass the means test. You are considered to have insufficient disposable income to pay a meaningful amount to your creditors.

If the amount is 25% or more than your total unsecured debts, you’d not pass the means test.

For example, if your monthly disposable income is $175, that amount multiplied by 60 equals $10,500, an amount more than $7,700 and less than $12,850. If you had $50,000 in unsecured debts, 25% of that would be $12,500. Since $10,500 is less than $12,500, you would pass the means test.

The Increases of April 1

The $7,700 and $12,850 amounts just used are correct for Chapter 7 cases filed on or after April 1, 2016. Before that these amounts are $7,475 and $12,475. The increases are part of an every-3-year cost of living adjustment. This means that as of April 1 you can have slightly more disposable income and still qualify for Chapter 7.

Final Note—“Special Circumstances”

If your disposable income is too high after the calculations above, you still might be able to claim “special circumstances that justify additional expenses or adjustments of current monthly income for which there is no reasonable alternative.”


The Truth about Qualifying to File a Chapter 7 Case

August 7th, 2015 at 7:00 am

The reality is that most people who want to file a “straight bankruptcy” Chapter 7 case can do so; if not, Chapter 13 may be better anyway.


Here’s the sentence we’re exploring today:

Although there’s some understandable confusion about this, if a Chapter 7 bankruptcy would genuinely be a good solution for you then you’d likely qualify based on your income alone, or by passing the “means test”; otherwise Chapter 13 may either be a good backup or the better solution anyway.

Understandable Confusion

Determining whether you qualify to file a Chapter 7 case is usually less complicated than it seems. But it’s perfectly understandable if it seems complicated. That’s because 10 years ago a major new bankruptcy law went into effect—the so-called Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”)—which is still sowing seeds of confusion.

One of the main purposes of BAPCPA was to discourage people from filing Chapter 7 bankruptcies. It did so directly by creating some extra hurdles, with the most important one being the “means test.” But news about the new law also discouraged bankruptcy filing indirectly by spreading the word that filing bankruptcy was harder than before, and that impression continues to some degree still a decade later.

Part of the reason that this impression persists is that BAPCPA dumped an astoundingly difficult to understand set of changes onto the Bankruptcy Code. Some parts seem to directly contradict other parts. So bankruptcy judges and courts of appeal all the way up to the U.S. Supreme Court have been trying to understand the badly drafted law. If it’s difficult for judges to make sense of BAPCPA, it’s only natural for ordinary people to get misimpressions about it. It’s easy to see how a concern about qualifying to file a Chapter 7 case under this now not-so-new law still gets blown out of proportion of the reality.

If You’re Like Most People, Your Income Will Enable You to Skip the “Means Test

The “means test” is the main mechanism for qualifying to file a Chapter 7 case. It’s a multi-part formula for determining—based on your income, expenses, and debts—whether you should be in a Chapter 7 or Chapter 13 “adjustment of debts” case. Some of those parts of the test are mind-numbingly confusing.

But the good news is, first, that most people who need a Chapter 7 case can qualify for it. And second, they do so by having low enough income to be able to skip the complicated expense and debts parts of the “means test.”

There are still some odd aspects (such as how your income is calculated for the “means test), but basically if your income is no more than the published median income amount for your state and family size, then you qualify for Chapter 7 without needing to go through any more of the  “means test.”

Also, certain kinds of folks can skip the “means test” no matter the amount of their income, specifically present or recent business owners who have more business debt than consumer debt, and certain military personnel.

Even if You Must Pass the “Means Test,” That Can Be Easy

Even if you are a consumer debtor whose income is higher than the applicable median income amount, because of the way income is calculated (fixating on your last 6 full calendar months of money received from just about all sources), each month your income can change. So through some perfectly legitimate timing strategies you may be able to lower your income to bring it under the applicable median amount.

And even if that’s not possible, you can often pass the “means test” by subtracting appropriate expenses from your income to show you have either no “disposable income” or not enough to disqualify you from Chapter 7.

In any event, getting past the “means test” is often not difficult.

Chapter 13 is Not a Bad Alternative, and Sometimes the Best One

If a person does not qualify under Chapter 7 because of too much “disposable income,” filing a Chapter 13 case instead usually results in the person paying only a small portion of her or her debts, making it not such a bad deal.

Also, Chapter 13 comes with many advantages not available under Chapter 7. For example, through “cramdown” of a vehicle loan, you may be able to reduce monthly payments and the total debt to be paid on it. So even if advantages such as this may not have been important enough to justify filing Chapter 13 voluntarily, if you’re effectively forced into Chapter 13 because of the “means test,” one or two of those advantages could mitigate the pain of being in a Chapter 13 case.

Also, sometime people are dead-set on filing a Chapter 7 case and either don’t look closely enough at Chapter 13 or are just not open to it as an option. But once they are forced to do so because of not passing the means test , they might come to realize that Chapter 13 may have been the better choice anyway. It’s not unusual for a person who just wants to file Chapter 7 case to get it over with comes to realize that Chapter 13 comes with surprising advantages. He or she may come to recognize that it was the best option and should be pursued, even if that person could pass the “means test” and qualify for a Chapter 7 case.

Chapter 7 Bankruptcy: A Brief Overview of Eligibility and Asset Liquidation

June 19th, 2015 at 7:11 am

Texas chapter 7 attorney, Texas chapter 13 lawyer, Texas bankruptcy attorney,There is a multitude of relief options for Americans who are struggling with debt, and in some situations, filing for bankruptcy is a smart decision. Many debtors find that either chapter 13 or chapter 7 bankruptcy can put them on the path toward financial stability. Before filing for chapter 7 bankruptcy, though, it is important to understand if you are eligible and what may happen to your assets.

The best source of information about your unique bankruptcy case is an experienced attorney. A bankruptcy lawyer can evaluate your debts to determine which bankruptcy chapter – if any – is ideal for your particular situation. In the meantime, here is some important information about state median incomes and asset liquidation as they relate to filing for bankruptcy:

State Medians and Your Income

According to, one of the factors that determine if a person qualifies for chapter 7 bankruptcy is his or her income. If your income is too high, a judge may request that you file for chapter 13 instead, because you will have the means to work with a structured payment plan. Of course, whether or not your income is high or low is relative to the state median.

Selling off Your Assets

Paying off debt through a liquidation of property is one of the distinguishing characteristics of chapter 7 bankruptcy — and it is perhaps one of the more worrying aspects. Many applicants are concerned about whether they will lose their homes, cars, and other property.

In some cases, it may be necessary to sell a home or vehicle in accordance with the chapter 7 bankruptcy process, but some property may be exempt from debtor collections. There is an intricate process involved in determining what assets qualify as exempt. A bankruptcy lawyer can help you understand what property may be safe from liquidation.

If you wish to speak with an experienced San Antonio bankruptcy attorney, contact the Law Offices of Chance M. McGhee at 210-342-3400 to schedule a free consultation. With more than 20 years of experience in bankruptcy law, Mr. McGhee help you decide if filing for bankruptcy is a smart option.

Bankruptcy Filing Questions

June 12th, 2015 at 9:03 pm

Texas bankruptcy lawyer, San Antonio chapter 7 lawyer, Texas chapter 7 attorney,Making the decision to file for chapter 7 bankruptcy is not easy. The thought of selling a home and other assets to pay debt is stressful to say the least. However, chapter 7 bankruptcy is often a smart option for those who want to achieve financial independence and stop creditor actions.

Before filing any chapter of bankruptcy, it is important to learn about the process and qualification guidelines. There are certain questions you must ask, and an attorney can guide you through the proceedings, address your concerns, and ensure you do not make mistakes that compromise your interests.

If you are considering bankruptcy, be sure to ask your bankruptcy lawyer these two questions:

How Will My Income Affect My Bankruptcy Options?

An applicant’s income is one factor that determines whether chapter 7 or 13 bankruptcy is the best course. If your income is greater than the state median, according to, a request for chapter 7 may automatically convert to chapter 13 because the applicant will have the means to work with a structured payment plan.

How Much Debt Do I Owe?

One of the first steps in filing for bankruptcy is to calculate the total debt owed. This total may influence your eligibility for certain bankruptcy chapters, and there may be alternatives to bankruptcy based on the amount you owe.

Even relatively high amounts of debt may be manageable without bankruptcy — provided you are making concerted, proactive financial decisions. However, if you are finding that your living expenses are conflicting with your ability to make payments, then bankruptcy might indeed be the answer.

Different chapters do have maximum debt limits. For example, the maximum amount of unsecured debt allowed for chapter 13 bankruptcy filers is just greater than $380,000. The limit for secured debt is around $1,149,000. If your total debt is near these numbers, you should discuss your options with a lawyer.

If you would like to speak with a San Antonio bankruptcy attorney, contact the Law Offices of Chance M. McGhee. Schedule a free initial consultation by calling 210-342-3400.

FAQs about Chapter 7 Bankruptcy

June 5th, 2015 at 8:12 am

Texas bankruptcy attorney, Texas chapter 7 lawyer, Texas chapter 13 attorney,Although much of the United States seems to have recovered from the Global Financial Crisis, thousands of Americans still declare bankruptcy every year. Although many are familiar with the general implications of bankruptcy, few first-time filers understand the intricate laws and how they relate to their particular case.

To shed some light on this complex legal field, here are four common chapter 7 bankruptcy FAQs:

What Makes Chapter 7 Unique?

Unlike chapter 13 bankruptcy, which restructures debt into a manageable payment plan, chapter 7 involves the liquidation of assets to pay off creditors. Depending on the types and amount of debt, chapter 7 bankruptcy may allow the filer to pay off his or her debts completely.

Is Chapter 7 Right for Me?

Before deciding to file for chapter 7 bankruptcy, you should find out if you qualify in the first place. Chapter 7 is available to any legal entity, individual or otherwise, according to

In order to be eligible, you must attend credit counseling within 180 days before applying for chapter 7 bankruptcy. When filing, you must have enough income to pay your debts. There are other factors involving your legal and bankruptcy histories that may influence your eligibility. A bankruptcy attorney can assess your case to help you decide if filing for chapter 7 is the right decision.

What Information Will the Courts Require?

Like other forms of bankruptcy, chapter 7 requires an individual to file a petition. An attorney can help with the necessary paperwork. You will need to list all creditors, debts owed, and assets. You will also need to provide a comprehensive record of your income and living expenses.

Will I Lose My Home?

Chapter 7 involves the liquidation of assets to pay debts. You may have to sell your home or other properties during this process. However, this is not always necessary, and a lawyer can help you develop a bankruptcy plan that represents your best interests.

If you would like to speak with an experienced San Antonio bankruptcy attorney, call the Law Offices of Chance M. McGhee at 210-342-3400 for a free consultation.

Bankruptcy Qualifications: Can You File for Bankruptcy Twice?

May 8th, 2015 at 8:17 pm

Texas chapter 7 lawyer, Texas chapter 13 attorney, Texas bankruptcy lawyer,Provided that you qualify for bankruptcy, it is likely that you will only apply once in your life. If everything pans out well, the process should set you on a more financially healthy course. However, whether due to a serious injury, loss of income, or another financial hardship, some people may find themselves considering bankruptcy a second time.

Is There a Limit to the Number of Times You Can File for Bankruptcy?

For the most part, you may file for bankruptcy as many times as you wish — although this does not imply that you should. Applying for bankruptcy too soon after the first may void your ability to discharge your debts, according to the Federal Trade Commission. This is critical because, in many cases, the purpose of bankruptcy is to discharge debt to make your finances more manageable.

The amount of time you should wait before filing a second time largely depends on whether you are filing for chapter 7 or chapter 13. After applying for chapter 7 bankruptcy, you must wait eight years until applying for the same chapter again. This differs from chapter 13, for which the wait period is only two years.

The time period between your first bankruptcy and hypothetical second begins on the day you filed the first bankruptcy. You should only consider a second bankruptcy after researching other options and consulting a bankruptcy attorney.

Filing under a Different Chapter the Second Time

Regardless of your first bankruptcy, you are not obligated to file under the same chapter during subsequent filings. However, changing the type of bankruptcy you file may affect the wait period. If you file for chapter 7 first, you must wait four years to file for chapter 13. For the converse, the waiting period is six years, provided that you have not paid off all unsecured debt. It is also possible to apply sooner if you have made regular payments for more than half of the debt owed, and you can show that a chapter 7 discharge is necessary to gain control of your finances.

To speak with a San Antonio bankruptcy attorney about filing for bankruptcy, either the first time or the second, contact the Law Offices of Chance M. McGhee for a free consultation at 210-342-3400.

Can Bankruptcy Stop Wage Garnishments?

April 17th, 2015 at 9:58 am

Texas bankruptcy lawyer, Texas chapter 7 attorney, filing for bankruptcy, debt collection, A wage garnishment is a court order that requires a debtor’s employer to pay a portion of the debtor’s wages to one or more creditors. Many people consider filing for bankruptcy in order to stop or prevent wage garnishment.

According to federal bankruptcy law, only a chapter 7 bankruptcy can stop a wage garnishment. During chapter 7 bankruptcy, the filer liquidates his or her assets to pay off debts, and the court issues an automatic stay.

This immediately stops wage garnishments, as well as all other debt-collection proceedings such as foreclosures or evictions. Chapter 7 bankruptcy will only put a stop to commercial wage garnishments, such as those related to credit cards, certain loans, and mortgages, but it will not stop garnishments for child support or delinquent taxes.

To qualify for chapter 7 bankruptcy, a person’s monthly income needs to be equal to or less than the state’s median household income. People whose salaries are above this median must pass a “means test.”

The means test determines whether a person has enough disposable income to repay the debt. If the filer has enough income, then chapter 7 bankruptcy is not an option. However, the debtor may be able to file for chapter 13 bankruptcy instead. Chapter 13 bankruptcy does not stop garnishments.

Filing for bankruptcy is a serious decision. However, it is a smart one in many cases. Bankruptcy may allow you to keep your home, car, and other property, but it may affect your credit rating and stay on your credit history for up to 10 years.

Should you choose to file for bankruptcy, your first step should be contacting a skilled San Antonio bankruptcy lawyer. Attorney Chance McGhee has more than 20 years of experience practicing law. He can explain how the bankruptcy process works and discuss your options. Call 210-342-3400 for assistance with chapter 7 or chapter 13 bankruptcy.

How Bankruptcy Laws and Your Finances May Affect the Bankruptcy Process

April 10th, 2015 at 11:01 am

Texas bankruptcy attorney, national income median, Texas chapter 7 lawyer, In addition to the stress that bankruptcy can cause, there is a long list of steps that you must take before filing. However, you should keep in mind that bankruptcy can put you on the path toward a debt-free life, so completing the necessary procedures may be a smart decision.

According to the U.S. Government Printing Office, the Bankruptcy Abuse Prevention and Consumer Protection Act passed in 2005. It requires people in Texas to complete credit counseling six months prior to filing for bankruptcy. You must also complete a financial management course after filing.

Your income and expenses may determine the bankruptcy chapter that you need to file. This is why chapter 7 filers must complete a means test to determine if their income is low enough.

Chapter 7 filers typically have incomes that are below the national median. In most cases, filers must be able to commit to at least $100 per month over the 60 months after filing.

When determining which chapter to file, you will need to calculate if you can pay at least 25 percent of your unsecured debts. These may include medical and credit card debts. If you cannot afford this, then you may need to file for chapter 7.

Before you file for chapter 7 bankruptcy, make sure you have the following information:

  •         Your current income amount and income sources;
  •         Financial transactions for the previous 48 months;
  •         Detailed list of all living expenses;
  •         Secured and unsecured debts;
  •         Value of applicable property and possessions;
  •         Income tax documents; and
  •         And loan or mortgage papers.

Your bankruptcy lawyer will help you file petitions for any exemptions. It is important to remember that any fraudulent documents or omissions found during the evaluation of your application can result in an immediate dismissal of your petition.

The First Step: Contact an Experienced Bankruptcy Attorney in Texas

A San Antonio bankruptcy lawyer can assess your case and help you determine if filing for bankruptcy is a smart decision. Attorney Chance McGhee has more than 20 years of experience helping people from all backgrounds get the fresh financial start they need through bankruptcy. Call 210-342-3400 to schedule a consultation.

The Importance of Following Bankruptcy Laws

April 3rd, 2015 at 8:13 pm

Texas bankruptcy attorney, Texas chapter 7 lawyer, Texas chapter 13 attorney, bankruptcy fraud, Filing for bankruptcy should not feel like an admission of guilt or defeat.  Chapter 7 and chapter 13 bankruptcies can help people stabilize their finances and work toward a debt-free life.

Bankruptcy laws are complex, which is why the guidance of an experienced bankruptcy attorney may prove invaluable. A lawyer who has handled cases similar to yours can provide advice and potentially expedite the process. You also may be more likely to avoid mistakes that could compromise your interests.

Although bankruptcy is a smart option for many, not understanding the legalities can make the process more difficult. One recent story demonstrates how not following bankruptcy laws can lead to trouble.

Judge Says Houston-Based Realty Company Circumvented Bankruptcy Laws

According to the Houston Business Journal, American Spectrum Realty, a self-storage space and assisted living center company, allegedly filed separate bankruptcy petitions in two different states. The overseeing judge ruled this action as an intentional means of circumventing specific aspects of bankruptcy law.

Following Bankruptcy Laws the Right Way

Different forms of bankruptcy come with specific regulations and requirements. Two of the most popular forms, chapter 7 and chapter 13, differ in how they resolve debt. The former is a more straightforward liquidation and dismissal of debt while the latter creates a repayment plan to help the debtor manage his or her finances.

No matter which form of bankruptcy you file, you must follow bankruptcy laws. An attorney can help you avoid critical mistakes while also helping you compare the options.

Consult a Bankruptcy Lawyer in San Antonio, Texas

If you are struggling with debt as either an individual or a business, and would like to speak with an experienced San Antonio bankruptcy lawyer, contact the Law Offices of Chance M. McGhee. Call us today at 210-342-3400 to schedule a free initial consultation.

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