80968-7 80968-7
TRANSCRIPT
No. 80968-7
On Appeal from Snohomish County No. 19-2-01383-31
In The Court of Appeals For the State of Washington Division I
Christopher and Angela Larson,
Plaintiff-Appellant,
v.
Snohomish County et al.,
Defendant-Respondent.
Appellants’ Reply to Answering Brief by Deutsche Bank, SPS, and MERS; and Joinders therein by
Quality Loan and Snohomish County, its Officials and Judges
Scott E. Stafne, WSBA No. 6964 Stafne Law Advocacy & Consulting
239 N. Olympic Avenue Arlington, WA 98223
360.403.8700 [email protected]
Attorney for Petitioners-Appellants
FILED Court of Appeals
Division I State of Washington 121212020 4 :52 PM
80968-7 80968-7
ii
Table of Contents
Table of Contents ........................................................ ii
Table of Authorities .................................................. iii
1. Introduction to Reply ............................................... 1
2. Reply to Bank’s Introduction ............................................. 2
3. Reply to Bank’s Restatement of the Case ................................ 2
4.Reply to Argument: A. Standard of Review ........................ 4
5. Reply to Argument B1: re whether the promissory note is authentic ........................................................................... 7
6. Reply to Argument B2: re MERS assignment ..................... 8
7. Reply to Argument B3: re whether Larsons’ loan ................ 8
was funded ........................................................................ 8
8. Reply to Argument B4: re who defaulted first .................... 9
9. Reply to Argument B5: re whether the evidence establishes the Larsons ratified the loan ........................................................ 10
10. Reply to Argument B6: re credibility ............................ 12
11. Reply to Argument C: re Judge Svaren’s jurisdiction to issue decision in the application proceedings ...................................... 13
12. Reply to Argument D: re Judge Svaren’s refusal to disqualify himself as a judge ............................................................... 14
13. Reply to Argument E re: venue ................................... 16
14. Reply to F: re Larsons’ Constitutional Claims ..................... 16
15. Reply to Argument G: re Larsons’ Torrens Application proceedings now under consideration by this Court ........................ 23
16. Reply to Argument H: re the Larsons motion to for leave to file an amended complaint ......................................................... 24
17. Conclusion ............................................................. 25
iii
Table of Authorities
Federal Cases
Echavarria v. Filson,
No. Nos. 15-99001, 17-15560, 2018 U.S. App. LEXIS 20668 (9th Cir. July 25, 2018) ...................................................................................... 15
Hurles v. Ryan,
752 F.3d 768 (9th Cir. 2014) ............................................................... 15
Lynott v. Mortg. Elec. Registration Sys., Inc.,
No. 12-cv-5572 RBL, 2012 WL 5995053 (W.D. Wash. Nov. 30, 2012) 6
Marshall v. Jerrico, Inc.,
446 U.S. 238, 100 S. Ct. 1610 (1980) .................................................. 19
Mathews v. Eldridge,
424 U.S. 319, 96 S. Ct. 893 (1976) ...................................................... 18 O’Neil v. Peak, No. C08-1041-JCC, 2009 U.S. Dist. LEXIS 142495, at *12 (W.D. Wash. Nov. 10, 2009)
Rippo v. Baker,
137 S. Ct. 905, 197 L. Ed. 2d 167 (2017) .............................................. 16
Robinson v. Am. Home Mortg. Servicing, Inc. (In re Mortg. Elec. Registration Sys.),
754 F.3d 772 (9th Cir. 2014) ................................................................. 8
Sveen v. Melin,
138 S. Ct. 1815, 201 L. Ed. 2d 180 (2018) ........................................... 21
State Cases
Bain v. Metro. Mortg. Grp., Inc.,
175 Wn.2d 83, 285 P.3d 34 (2012) ........................................... 7, 12, 20
iv
Barnes v. Treece,
15 Wn. App. 437, 549 P.2d 1152 (1976) ............................................... 11
Consumers Ins. Co. v. Cimoch, 69 Wn. App. 313, 322-23, 848 P.2d 763, 768-69 (1993)
DeYoung v. Providence Med. Ctr.,
136 Wn.2d 136, 960 P.2d 919 (1998) ................................................... 22
Dilibero v. Mortgage Elec. Registration Sys. Inc., 108 A.3d 1013 (R.I. 2015) ................................................................ 4, 12
Edelstein v. Bank of N.Y. Mellon,
128 Nev. 505, 286 P.3d 249 (2012) ....................................................... 8
Emerald Gardens Condo. Ass’n v. U.S. Bank N.A., No. 65857-3-I, 2011 Wn.
App. LEXIS 2535, at *11-13 (Ct. App. Nov. 7, 2011) (2012) ................. 4
Godfrey v. Ste. Michelle Wine Estates Ltd.,
194 Wn.2d 957, 453 P.3d 992 (2019) ................................................... 20
Guy Stickney v. Underwood,
67 Wn.2d 824, 410 P.2d 7 (1966) ........................................................ 20
Houplin v. Stoen,
72 Wn.2d 131, 431 P.2d 998 (1967) ..................................................... 11
In re Schnarrs,
10 Wn. App. 820, 448 P.3d 820 (2019) ........................................... 3, 24
Jackson v. Quality Loan Serv. Corp.,
186 Wn. App. 838, 347 P.3d 487 (2015) .......................................... 7, 23
Keck v. Collins,
184 Wn.2d 358, 357 P.3d 1080 (2015) ................................................... 5
Kennebec, Inc. v. Bank of the W.,
88 Wn.2d 718, 565 P.2d 812 (1977) ..................................................... 18
v
Klem v. Wash. Mut. Bank,
176 Wn.2d 771, (2013) ........................................................................ 19
Kritzer v. Collier,
28 Wn.2d 356, 183 P.2d 195 (1947) ..................................................... 14
Nelson v. Skamania County,
No. 44240-0-II, 2014 Wn. App. LEXIS 1499 (Wash. Ct. App. June 17, 2014) ................................................................................................... 10
Primm v. Wockner,
56 Wn.2d 215, 351 P.2d 933 (1960) ..................................................... 11
Pring v. Benevolent & Protective Order of Keglers ,
34 Wn.2d 510, 209 P.2d 284 (1949) .................................................... 11
Riss v. Angel,
131 Wn.2d 612, 934 P.2d 669 (1997) ................................................... 11
Rouse v. Glascam Builders,
101 Wn.2d 127, 677 P.2d 125 (1984) ................................................... 20
Seven Gables Corp. v. Mgm/Ua Ent. Co.,
106 Wn.2d 1, 721 P.2d 1 (1986) ........................................................... 10
Smith v. Dalton,
58 Wn. App. 876, 795 P.2d 706 (1990) ............................................... 11
State ex rel. Douglas v. Westfall,
85 Minn. 437, 89 N.W. 175 (1902) ...................................................... 19
Stroud v. Beck,
49 Wn. App. 279, 742 P.2d 735 (1987) ................................................ 11
Tyler v. Judges of Court of Registration,
175 Mass. 71, 55 N.E. 812 (1900) ........................................................ 19
Vinneau v. Goede,
50 Wn.2d 39, 309 P.2d 376 (1957) ....................................................... 11
vi
Weitzman v. Bergstrom,
75 Wn.2d 693, 453 P.2d 860 (1969) .................................................... 11
Yvanova v. New Century Mortgage Corp.,
62 Cal. 4th 919, 199 Cal. Rptr. 3d 66 (2016) ................................... 9, 11
State Constitutional Provisions
Wash. Const. art. I, § 10 ........................................................................... 21
Wash. Const. art. I, § 12 ........................................................................... 21
Wash. Const. art. II .................................................................................. 16
Wash. Const. art. IV ................................................................................. 16
State Statutes
Chapter 61.24 RCW ............................................................................. 2, 23
Chapter 65.12 RCW ..................................................................... 22, 23, 24
RCW 2.28.030 .......................................................................................... 15
RCW 4.16.040 .......................................................................................... 21
RCW 4.28.320 .......................................................................................... 13
RCW 48.29.010 ........................................................................................ 23
RCW 61.24.127, 61.24.130 ....................................................................... 20
RCW 62.3-308(a), ....................................................................................... 7
RCW 64.04.007(2).................................................................................... 22
RCW 65.12.030 ......................................................................................... 14
RCW 65.12.110 ......................................................................................... 14
RCW 65.12.085 ........................................................................................ 23
RCW 65.12.100 ........................................................................................ 13
RCW 65.12.110 ........................................................................................... 1
RCW 65.12.210 ................................................................................. passim
RCW 65.12.210 ......................................................................................... 19
Court Rules
RAP 3.3 ..................................................................................................... 23
vii
Other Authorities
Stephens, Debra, The Once and Future Promise of Access to Justice in Wash-ington’s Article I, Section 10, Washington Law Review Online: Vol. 91, Article 4. Section 10 (2016) ................................................................. 22
1
1. Introduction to Reply
Snohomish County Defendants—judges, clerk, etc.—as well as the
private corporate trustee who illegally sold the Larsons’ home have joined
in the Answering Brief (AB) submitted by Deutsche Bank (Bank), MERS,
and Select Portfolio Servicing, Inc. Thus, the county, its officials and judges
join with the wealthy private Defendants to support the takeover of the
Larson family home by those who do not need shelter and who do not care
if citizens will likely die without it. Governor Inslee and Attorney-General
(AG) Ferguson submit their own 40 page Answering Brief supporting the
foreclosure and government sponsored eviction of this family onto the
streets of Snohomish County now riddled with the COVID-19 virus
notwithstanding they urge all others to be safe and stay at home.
As will be shown herein Washington’s government workers (includ-
ing those who work in all three of its branches) have shaped the laws of
Washington state over time in such a way as to align their personal interests
with those wealthy corporate money lenders and debt buyers who profit im-
mensely from the wrongful foreclosures of homes. As often happens when
tyranny achieves control of government, truth becomes a victim of govern-
ment. The Torrens Act is based on the supposition that truth exists and can
be found.
RCW 65.12.110 directs:
Immediately after the filing of the abstract of title, the court shall enter an order referring the application to an examiner of titles, who shall proceed to examine into the title and into the truth of the matters set forth in the application, and particularly whether the land is occupied, the nature of the occupation, if occupied, and by what right, . . .
2
The evidence suggests Snohomish County’s government workers
have aligned with wealthy money lenders and debt buyers to purposely pre-
vent homeowners from using this system to protect themselves against title
fraud. The Larsons assert this is because government workers also benefit
from not allowing citizens to access the benefits of this law. See infra.
2. Reply to Bank’s Introduction, AB at 11
Deutsche Bank asserts in its Introduction that it, as: [t]he secured party, The Trust, foreclosed its interest in the property, and the property was sold at a properly noticed and conducted trustee’s sale in 2018. The Larsons did not seek to enjoin the sale, and their title to the property was eliminated. The Trust is the current owner and title holder to the subject property as the purchaser at the foreclosure sale.
This is untrue. Once the Larsons filed their Registration Application
under the Torrens Act the private trustee under Washington’s Deed of
Trust Act (DTA), Ch. 61.24 RCW, was precluded from privately selling
their home until the Larsons’ title application proceedings were resolved.
See e.g. RCW 65.12.210. See also original Land Title Registration (Torrens)
Act, at CP 1840, § 32. See infra.
3. Reply to Bank’s Restatement of the Case, at AB 2–7
The Larsons devoted 18 pages of their Opening Brief (OB) to undis-
puted historical facts and their statement of the case sections. OB 7–25.
These sections were supported by massive evidentiary submissions includ-
ing without limitation: (1) the declarations and exhibits of Angela Larson,
CP 1270–1416, Chris Larson, CP 3523–26, Angela Larson (unsigned), CP
3527–41; Angela Larson, CP 3613–14, Micah Anderson, CP 3468–3522 and
3
CP 807–988, Donovan McDermott, CP 989–1171; and Scott Stafne, CP
1440–25961; (2) the depositions in this case of Quality Loan’s CEO Jeffrey
Stenman, CP 552–74, and the purported attorney-in-fact for the 2007 Trust,
Daniel Maynes (CP 1417–39). See also CP 1173 (identifying this and other
evidence the Larsons relied upon in opposition to the MSJ, which also in-
cluded the Larsons’ responses to discovery at CP 3116–33).
This evidence, and that produced by the Bank, show the government
and private Defendants did not dispute in the court below (and do not dis-
pute here) those facts asserted by the Larsons occurring before SPS took
over the loan in 2017. This evidence includes, but is not limited to evidence
establishing the promissory note was purposely split from the deed of trust
security instrument at the inception of the Larson loan, and again when the
Bankruptcy court terminated MERS agency, if any, with New Century in
2008. This evidence also includes Angela Larsons’ testimony that New
Century breached the note agreement in 2007 by refusing Larsons’ pay-
ments and not providing the Larsons with instructions on where to send
their payments after New Century filed for bankruptcy. See CP 3142, prom-
issory note, ¶ 3; CP 1317, security instrument, ¶ 1.
The Bank’s restatement of this case is filled with legal conclusions
that are not viable under the facts as they must be construed in this case. For
example, at page 3 of the Bank’s AB it is asserted:
1 Stafne’s declaration included as exhibits the depositions of the Honorable Mason County Superior Court Judge Monty Cobb, CP 2453-2500, Mason County Examiner of Titles Richard Beresford, CP 2510-2533, and three previous depositions of Mr. Jeffrey Stenman, CP 2242-2271, 2272-2372, and CP 2373-2452.
4
The Trust is holder of the Note and beneficiary of the Deed of Trust with the power to foreclose. CP 3216. Although the right to enforce the Deed of Trust follows the Note as a matter of law and thus the Trust is beneficiary of the Deed of Trust by holding the Note, the Trust also received an assignment of MERS’s in-terest under the Deed of Trust by virtue of an assignment recorded on July 16, 2010.CP 3197.
The Larsons absolutely dispute the assertion “the right to enforce the
Deed of Trust follows the note as a matter of law” for purposes of a nonju-
dicial foreclosure pursuant to their 2006 deed of trust agreement because
that change in the DTA was not made by the political branches until 2018.
See OB 62–64. See also CP 2200, 2211 (2018 Amendments to DTA.) See also
CP 556–560 (September 3, 2019 deposition of Jeff Stenman testifying about
amendments to DTA since 1999 and in 2018 specifically)
The Larsons also dispute the Bank’s claim it acquired its interest in
the deed of trust security interest from MERS because under the facts most
favorable to the Larsons the note and its security were split at the loan’s
inception and/or because New Century terminated whatever agency rela-
tionship it had with MERS in 2008. CP 1446, 2541–51; CP 1276–7, 1341–
50. See also Dilibero v. Mortg. Elec. Registration Sys., 108 A.3d 1013 (R.I. 2015)
at CP 1652-1653; Ross v. Deutsche Bank Nat’l Trust Co., 933 F. Supp. 225 (D.
Mass. 2013) at CP 1647-1648.
4.Reply to Argument: A. Standard of Review, at AB 8-9
The Bank argues: “[t]he Larsons were unable to present any genuine
issue of material fact that would preclude summary judgment. . . .” AB 8.
The Larsons disagree. The factual issues the Larsons rely upon (and which
5
are not disputed by the Bank) are comprehensively set forth in the Larsons’
OB at 19–26.
“The ‘purpose [of summary judgment] is not to cut litigants off from
their right of trial by jury if they really have evidence which they will offer on a
trial, it is to carefully test this out, in advance of trial by inquiring and determin-
ing whether such evidence exists.’” Keck v. Collins, 184 Wn.2d 358, 369, 357
P.3d 1080 (2015). If litigants opposing summary judgment submit evidence,
it should be considered unless it is required to be excluded by the Burnet v.
Spokane Ambulance sanctions test. Id. 184 Wn.2d at 362.
The Larsons identified four questions of fact to which the law must
be applied pursuant to private Defendants’ motion for summary judgment,
including: (1) Whether the New Century note purportedly being foreclosed
is the genuine original; (2) Whether MERS was the agent of New Century
in 2010 when MERS purported to assign the deed of trust security instru-
ment to the 2007 Morgan Stanley Trust; (3) Whether the Larson loan was
ever funded by New Century; and (4) Whether New Century breached its
agreements with the Larsons.
The Bank does not acknowledge the Larsons have submitted evidence
the New Century note was actually purchased by a 2006 trust2, not the 2007
trust, the Bank claims to be the trustee for in this case. CP 1276–77, 1342
The Bank and MERS never presented any evidence to dispute the
Larsons’ evidence that MERS had no authority to assign the deed of trust
2 See CP 1276–1277, ¶¶ 20–21; CP 1341–1342. Ex. 6
6
to Deutsche Bank in 2010 after the bankruptcy court terminated its execu-
tory contracts with New Century. See CP 4004–07 (Larsons original
complaint) with CP 3047-48 (MERS Answer) and 3065-66 (Trust’s Answer
by Bank)
The Bank’s argument is that even if Larsons are factually correct
about the bankruptcy (which they are), the 2007 Trust (which Larsons’ dis-
pute owns their loan) is entitled to enforce the note because it now holds the
note.
This is because the [2007] Trust holds the endorsed-in-blank Note; the Larsons’ allegations about a 2010 MERS assignment and prior foreclosure proceedings are simply not relevant to the Trust’s undisputed holder status. See, Lynott v. Mortg. Elec. Reg-istration Sys., Inc., No. 12-cv-5572 RBL, 2012 WL 5995053, at *2 (W.D. Wash. Nov. 30, 2012) (“U.S. Bank is the beneficiary of the deed because it holds Plaintiffs’ Note, not because MERS assigned it the deed.”).
AB 12.
This argument, however, is directly contrary to the claims made by
the Defendant trustee and the Bank in their Motions for Summary Judg-
ment. See e.g. CP 538 (Trustee’s motion) and CP 3293:13-17 (Bank’s
Motion) See also claims made in notice of default (at CP 519 and 521), in the
notice of trustee sale (at CP 3882), and in the assignment of deed of trust (at
CP 2964).
The argument, that it does not matter if MERS actually assigned the
deed of trust, is not a factual argument, but one of law. It presumes this
Court will hold that it does not matter whether MERS assigned the deed of
7
trust to Deutsche Bank fraudulently or without authority to do so in 2010
because the law was subsequently changed at the behest of the nonjudicial
foreclosure lobby in 2018 so as to make such assignments by the beneficiary
of the deed of trust (as opposed to both the note owner and beneficiary of
the deed of trust) not legally necessary to accomplish nonjudicial foreclo-
sures. See CP 2200, 2211 (2018 amendments to DTA) See also deposition of
Jeff Stenman, CP 556–60.
This lobbying by the wealthy money lenders, debt buyers, and gov-
ernment workers ultimately changed the holding of Bain v. Metro Mortgage
that a deed security instrument could become separated from the note in
such a way as to become unenforceable notwithstanding that other jurisdic-
tions following UCC rules held otherwise. See Bain v. Metro. Mortg. Grp.,
Inc., 175 Wn.2d 83, 105-107, 112-3, 285 P.3d 34 (2012).
5. Reply to Argument B1: re whether the promissory note is authentic, AB 9-11
The Larsons challenged the authenticity of the note the Bank relies
upon to foreclose in their complaint pursuant to RCW 62.3-308(a), which
provides a mechanism for disputing the signatures on a promissory note. OB
28–30. The evidence in the record relating to New Century’s April, 2007
bankruptcy establishes that there is a factual issue as to when and whether
the note was indorsed in blank at a time the Bank owned the note given that
New Century accepted the Larsons’ payments up until August 2007, which
was several months after New Century’s bankruptcy. Additional evidence
creating an issue of fact in this regard is included in the Larsons’ responses
8
to the interrogatories attached to the declaration of Jeff Courser in support
of the Bank’s motion for summary judgment at CP 3116–33, particularly the
Larsons’ responses to interrogatories 1, 4, 5, 7, 9–11.
6. Reply to Argument B2: re MERS assignment, AB 11–13
The Bank offers no argument or evidence that MERS deed of trust
security instrument was not intentionally split from the note. See Clerk’s
Papers generally and Bank’s AB. See also Larsons’ OB 70–73 citing Robinson
v. Am. Home Mortg. Servicing, Inc. (In re Mortg. Elec. Registration Sys.), 754
F.3d 772, (9th Cir. 2014) and Edelstein v. Bank of N.Y. Mellon, 128 Nev. 505,
286 P.3d 249 (2012).
The Bank falsely argues the Larsons did not raise the issue of MERS
agency with New Century below. See Larsons’ Response to Motion for
Summary Judgment, CP 1193; 1218–21; 1251. See also Complaint 4002-08,
4020; Amended Complaint 2624, 2637, 2655, 2669, 2687-8; and Larsons’
Response to Interrogatories, CP 3117–33. Cf. Bank’s Motion for Summary
Judgment, 3300–03.
In any event, the Bank and Trustee invite this attack by arguing in the
AB that MERS had authority under Washington law to assign the deed of
trust when they did not present any evidence that MERS was New Cen-
tury’s agent. See e.g. AB 26 (“MERS assigned its interest in the Deed of
Trust in 2010.”) See also Deposition of Jeff Stenman, CP 557, page:25 - 559,
page 16:4; CP 560, page 19:19 - 561, page23:25 regarding this issue.
7. Reply to Argument B3: re whether Larsons’ loan was funded, AB 13-14
9
At pages 13 and 14 of its AB the Bank argues “the loan was funded,
and the allegations of non-funding are frivolous.” But the charges of non-
funding came from the Washington’s Department of Financial Institutions’
Agreed Cease and Desist Order with New Century in which the parties
agreed that many New Century loans at this time were closed, “but not
funded.” (Emphasis Supplied) See e.g. CP 4003–04, ¶¶ 3.50 and 3.60; CP
2538. See also Declaration of Joseph M. Vincent, the Director of Regulatory
and Legal Affairs at the Washington State Department of Financial Institu-
tions attached as Exhibit 1 to the Supplemental Declaration of Scott E.
Stafne Re: Motion to Modify Commissioner’s Ruling filed with this Court
on August 10, 2020, asserting the facts stated in this Cease and Desist Order
were likely true, but that Washington government Defendants destroyed the
evidence of this fact in 2017—the same year the Bank decided to finally fore-
close. The Larsons assert this Court should consider Vincent’s declaration
herein pursuant to the Spokane Ambulance rule set forth in Keck v. Collins.
But even if the fact finder concludes the loan was funded, this does
not mean the aligned private and government Defendants win because the
Larsons also assert the loan was never properly assigned to Deutsche Bank.
And this creates an issue of fact with regard to whether this assignment was
void. See Yvanova v. New Century Mortg. Corp., 62 Cal. 4th 919, 937-939, 199
Cal. Rptr. 3d 66, 365 PJd 845 (2016) at CP 1664-67.
8. Reply to Argument B4: re who defaulted first, AB 14-15
The Bank does not dispute the Larsons “timely made all their pay-
ments to New Century until August 2007.” AB 5 citing CP 4001 & 4008.
10
Nor does the Bank dispute any of Larsons’ other assertions about New Cen-
tury’s breach of their loan agreements, i.e. refusing their payments and not
providing them with information about where their house payments should
be sent.
The Bank wants to ignore this admitted breach in 2007 and argue the
Larsons’ default in 2017 is all that matters. But this Court cannot ignore the
admitted 2007 breach of these loan agreements by New Century and MERS
—not providing them with the ability to pay their mortgage—because these
facts are material in that the Larsons testify that they moved out, but left
and then returned because they still had title and were exposed to liability
for the property. These facts are material because they may affect the out-
come of the summary judgment. See e.g. Seven Gables Corp. v. MGM/UA
Entm't Co., 106 Wn.2d 1, 12-13, 721 P.2d 1 (1986); Nelson v. Skamania Cty.,
No. 44240-0-II, 2014 Wn. App. LEXIS 1499, at *11-12 (2014) (un-
published) See infra.
9. Reply to Argument B5: re whether the evidence estab-lishes the Larsons ratified the loan, AB 15-18
The Bank argues the complaint allegations that the Larsons moved
back into their house in 2014 after leaving in 2007 indicates they ratified the
loan agreements. But a more tenable argument is that after being forced to
remain on title until June 2014 because no one followed through on the
threatened foreclosures, see CP 1273, ¶11, they had no choice but to do so.
AB 14.
11
It is axiomatic that ratification, waiver and estoppel involve questions
of fact for the trier of fact to resolve after a trial on the merits, not matters
of law to be adjudicated on summary judgment unless the facts and infer-
ences from facts are undisputed or can only be resolved one way. Riss v.
Angel, 131 Wn.2d 612, 636-37, 934 P.2d 669, 683 (1997); Houplin v. Stoen, 72
Wn.2d 131, 136, 431 P.2d 998, 1001 (1967); Pring v. Benevolent & Protective
Order of Keglers, 34 Wn.2d 510, 523, 209 P.2d 284, 290 (1949); Smith v. Dal-
ton, 58 Wn. App. 876, 881–82, 795 P.2d 706 (1990); Barnes v. Treece, 15 Wn.
App. 437, 444, 549 P.2d 1152 (1976).
The standard for determining whether ratification has occurred is not
the one set forth in Stroud v. Beck, 49 Wn. App 279, 742 P. 2d 735 (1975) as
the Bank contends3, see AB 15. Ratification requires proof of an intent to
waive the fraudulent part of any contract. Weitzman v. Bergstrom, 75 Wn.2d
693, 699-700, 453 P.2d 860, 864-65 (1969); Primm v. Wockner, 56 Wn.2d
215, 217, 351 P.2d 933, 934 (1960); Vinneau v. Goede, 50 Wn.2d 39, 41, 309
P.2d 376, 377 (1957). Here, there is no proof the Larsons intended or could
waive the fact MERS had no authority to assign the deed of trust which had
been purposely split from the Note and/or after MERS agency with New
Century was repudiated. See e.g. Yvanova v. New Century Mortg. Corp.,
3 See e.g. Consumers Ins. Co. v. Cimoch, 69 Wn. App. 313, 322-23, 848 P.2d 763, 768-69 (1993) (Stating to the extent the above rule is construed as imposing liability based solely on a principal’s acceptance of benefits, it does not accurately reflect the law” of ratification. Id. at 323). See also O’Neil v. Peak, No. C08-1041-JCC, 2009 U.S. Dist. LEXIS 142495, at *12 (W.D. Wash. Nov. 10, 2009)(“[R]atification can apply only to actions done on a prin-cipal’s account.”)
12
supra. (A void transaction cannot be ratified or validated by the parties even
if they so desire. Id. 62 Cal. 4th at 936-7.)
10. Reply to Argument B6: re credibility, AB 18–19
The Bank argues there are no “credibility” issues precluding sum-
mary judgment. But certainly, there are. Both the Bank and MERS denied
that Dilibero v. Mortg. Elec. Registration Sys., supra; Ross v. Deutsche Bank
Nat'l Tr. Co., supra. at 228–29 and Yvanova v. New Century Mortg. Corp.,
supra., applied to them. A fact finder could find this assertion, without sup-
porting facts or law for their position is not credible. Similarly, it is not
believable that the Bank’s purported “attorney-in-fact” Daniel Maynes
does not remember who wrote his declaration in this case, see supra., or
whether his employer had any information related to contract performance
prior to 2017. CP 1422, p. 18:5-21:7. Indeed, MERS frequent changes in its
litigation tactics might also lead reasonable fact finders to doubt what it as-
serts. See Bain, supra., note 18 (“MERS’s officers often issue assignments
without verifying the underlying information, which has resulted in incor-
rect or fraudulent transfers.” citing Dustin A. Zacks, Standing in Our Own
Sunshine: Reconsidering Standing, Transparency, and Accuracy in Foreclosures,
29 Quinnipiac L.Rev. 551, 580 and n. 163 (2011)(citing Robo-Signing, Chain
of Title, Loss Mitigation, and Other Issues in Mortgage Servicing: Hearing
Before Subcomm. on H. and Cmty. Opportunity H. Fin. Servs. Comm.,
111th Cong. 105 (2010) (statement of R.K. Arnold, President and Chief Ex-
ecutive Officer of MERSCORP Inc.)).
13
11. Reply to Argument C: re Judge Svaren’s jurisdiction to issue decision in the application proceedings, AB 19-21
The Bank argues that because the corporate trustee sold the Larsons’
home before being enjoined from doing so by Judge Svaren in the proceed-
ings below the sale was proper, citing Matter of Warren aka In re Schnarrs,
10 Wn. App. 2d 596, 448 P.3d 820 (2019) AB 27–28. But Warren/Schnarrs
contradicts the Bank’s contention because the Schnarrs’ registration appli-
cation was not brought until after the trustee sale had already occurred, see
10 Wn. App. at 59. Here, both the Larson’s judicial registration proceedings
and this case were filed before any sale occurred.
RCW 65.12.210 provides that ownership of any property after the fil-
ing of a registration of title application must be determined in the
registration proceedings. Any person who shall take by conveyance, attachment, judgment, lien or otherwise any right, title or interest in the land, subsequent to the filing of a copy of the application for registration in the office of the county auditor, shall at once appear and answer as a party defendant in the proceeding for registration, and the right, title or interest of such person shall be subject to the order or decree of the court.
In order to make this point even clearer RCW 65.12.100 provides:
At the time of the filing of the application in the office of the clerk of the court, a copy thereof, certified by the clerk, shall be filed (but need not be recorded) in the office of the county auditor, and shall have the force and effect of a lis pendens.
Under RCW 4.28.320 anyone purchasing the res after the filing of the
registration application, i.e. lis pendens, is deemed a subsequent purchaser
or encumbrancer, and is bound by all proceedings taken after the filing of
14
such lis pendens to the same extent as if he were a party to the registration
of title proceedings. See e.g. Kritzer v. Collier, 28 Wn.2d 356, 183 P.2d 195
(1947); Emerald Gardens Condo. Ass’n v. U.S. Bank N.A., No. 65857-3-I,
2011 Wn. App. LEXIS 2535, at *11-13 (Ct. App. Nov. 7, 2011) (un-
published).
Judge Svaren’s lack of authority to decide procedural issues, like the
abstract of title issue, in the registration proceedings is also mandated by (1)
the Prior Exclusive Jurisdiction Doctrine which holds that “when one court
is exercising in rem jurisdiction over a property res, the second court, will
not assume in rem jurisdiction over the same res.” OB 38–39; (2) the Prior-
ity of Action rule, OB 39; and (3) the procedural requirements of the
Registration of Land Title (Torrens) Act, which allow amendments to ap-
plication proceedings and for applicants to object to procedural rulings. See
e.g. RCW 65.12.030 and 65.12.110.
12. Reply to Argument D: re Judge Svaren’s refusal to dis-qualify himself as a judge, AB 2122
The Larsons argued Judge Svaren “was not qualified to act as a
judge in this matter under Washington law and should have recused himself
from acting as a judge pursuant to the objective [Due Process] precedents
of the U.S. Supreme Court.” OB 39–46. The Bank responded that the
standard of review for these issues was whether Judge Svaren’s ruling was
“manifestly unreasonable or based on untenable reasons or grounds.” AB
21–2. This is wrong.
15
The Larson have brought constitutional and statutory challenges re-
garding Judge Svaren’s lack of judicial qualification. The standard of review
for both in the context of a summary judgment is de novo. See OB 26. The
Larsons are not challenging Judge Svaren pursuant to the Appearance of
Fairness Doctrine to which the abuse of discretion standard applies. AB 21.
The Bank also falsely argues ‘[t]he Larsons did not specify at any time
the basis of Judge Svaren’s interest in this case.” AB 22. The Larsons al-
leged and presented evidence the Skagit County Superior Court Judges
(including Judge Svaren) were violating the Registration of Land Title stat-
ute in the same ways as the Snohomish County judges were violating that
law. See Complaint, CP 1430–31, ¶ H; Amended Complaint, CP 2846–7,
2860–1; Declaration of Micah Anderson; CP 3468–77, ¶¶ 5–7, 9, 22–
29; See also CP 1372 and CP 3755; See also legal argument at CP 3543–654.
“Experience teaches the probability of actual bias on the part of a de-
cision maker to excuse, not condemn his own actions as a judge, is too high
to be constitutionally tolerated.” Id at 3546. See also Hurles v. Ryan, 752 F.3d
768 788 (9th Cir, 2014): Echavarria v. Filson, Nos. 15-99001, 17-15560, 2018
U.S. App. LEXIS 20668 (9th Cir. 2018) (unpublished)
4 At CP 3546 the Larsons argue:
That is exactly the situation we have here, with regard to all superior court judges who have prevented people within their respective communities from accessing the protections of Torrens Act. Experience teaches that the probability of actual bias on the part of a decision maker to excuse, not condemn his own actions as a judge is too high to be constitutionally tolerated.
16
Because the Bank fails to address the factual arguments regarding ju-
dicial disqualification the Larsons made and the law—both federal
precedents and RCW 2.28.030(1)—that required Judge Svaren be disquali-
fied if he had an interest in finding other judges behaving as he did not
culpable, he was required to determine whether he would appear to reason-
able persons to be a neutral adjudicator of this case. Just telling the litigants
he “had no dog in this fight” was not enough to determine whether the risk
of bias was too high to be constitutionally tolerable” in this situation. See
Rippo v. Baker, 137 S. Ct. 905, 907 (2017).
This Due Process standard is not speculative as the Bank suggests,
but was developed by the U.S. Supreme Court to be objective. And Judge
Svaren needed to apply the correct legal standard—an objective legal stand-
ard to himself—not just tell the parties he subjectively determined he had
no interest in deciding this case in such a way that his conduct was legal. 13. Reply to Argument E re: venue, AB 22-24
The Larsons will rely on the venue arguments made to the court below
at CP 3543–3547 and in their OB at 46–51.
14. Reply to F: re Larsons’ Constitutional Claims, AB 24–26
In addition to arguing there could not be a trustee sale for the statutory
reasons advanced in their OB and herein, the Larsons also argued that the
sale of their home was precluded by several state and federal constitutional
provisions. CP. 1202–31. CP 2831–2841. All of these constitutional argu-
ments have been argued by the Larsons in this Appeal. OB 53–70.
17
Except to argue Jackson v. Quality Loan Service Corp., 186 Wn. App.
838, 347 P.3d 487 (2015) is controlling with regard to establishing that the
DTA does not violate art. IV, § 6 and art. II, § 1 the Bank’s brief does not
address any of Larsons’ other constitutional arguments. See AB 24–26. De-
fendants also failed to address these constitutional challenges below. See CP
3017–18 and did not produce any evidence to dispute that evidence of the
constitutional violations presented by the Larsons.
The Larsons continue to assert this Panel should find Judge
Svaren erred in holding that Jackson v. Quality Loan is controlling under the
facts of this case. OB 53–54. See also CP 1202–1208, CP 3566–69. It is im-
portant to note that Judge Svaren initially rejected government Defendants
CR 12(b) arguments that Jackson was controlling, see CP 3562, 3585, but
changed his mind (without explanation) when he granted summary judg-
ment dismissing all of Larsons’ constitutional claims.
The Larsons “Due Process - State Action” challenge was based on
evidence in the record which documented (1) the Larsons’ imminent fear of
being evicted by the Snohomish County sheriff from their home, CP 3612–
4; 3523–6; 3527–41; 2580–6; (2) the likelihood the Larsons and their family
would sustain death or injury as a result of this state sponsored eviction, CP
1190–1; 1279–1280; 1441; 1819–20; 2639; 2864–68; (3) a history of Washington
law that showed these arguments about state sponsored evictions, especially
in a Pandemic, had never been ruled upon by Washington’s Supreme Court.
CP 1731–1875; and (4) government workers (including those working for
the judicial branch) retirement programs that have billions of dollars
18
invested in mortgage backed securities that might tank if foreclosures were
not granted routinely. CP 989–991; 1033–34; 1042–47.
The ruling that Due Process was not implicated in Kennebec, Inc. v.
Bank of the W., 88 Wn.2d 718, 565 P.2d 812 (1977) was based on a complaint
that did not allege, and evidence that did not show significant state action.
Here the Larsons' complaint alleges—and their evidence shows—that their
eviction from the home by the aligned private and government Defendants
does involve significant state action that is likely to cause injury and/or
death to the Larson family members. See also OB, 16–17, 54–55. CP 1208–
1210; 1250.
It is axiomatic that the significance of the governmental deprivation
determines the scope of the due process necessary to prevent
harm. Mathews v. Eldrige, 424 U.S. 319, 96 S.Ct. 893 (1976). The Larsons
asserted, and Defendants did not dispute, that threatened injury and death
from eviction would be significant deprivations of liberty taken from them
in violation of RCW 65.12.210. Larsons should be able to argue such a dep-
rivation without affording them a hearing deprives their family of due
process of law under both federal and Washington precedents applicable to
State Action.
The Larsons “Due Process - Fair Hearing Before a Fair Tribu-
nal” challenge against the private trustee is based on evidence in the record
that demonstrates (1) Defendant Quality Loan, a corporate trustee, made
the decision to either not consider or violate RCW 65.12.210 by selling the
Larsons’ home out from under them without participating in the
19
registration proceedings as it was required to do; CP 557, page 7:25 - 559,
page 16:4 (Quality would expect its legal counsel to decide these legal issues
before sale.); See also CP 3631–32, 3643; (2) Quality, a corporate trustee,
was not a judicial officer that was required to be neutral in the same way as
are judicial officers when resolving such legal issues as are likely to affect the
lives and properties of homeowners; Id. See also historical facts at CP 1443,
1731–1875; and (3) only judicial officers, not state officers or private judicial
officials, can exercise this kind of judicial power affecting persons’ liberty
and property interests. Id. See also State ex rel. Douglas v. Westfall, 85 Minn.
437, 89 N.W. 175 (1902); Tyler v. Judges of Court of Registration, 175 Mass.
71, 55 N.E. 812 (1900) and OB 57–60.
In Klem v. Wash. Mut. Bank, 176 Wn.2d 771 (2013) the majority held
“neither due process nor equity will countenance a system that permits the
theft of a person’s property by a lender or its beneficiary under the guise of
a statutory nonjudicial foreclosure.” Id. at 790) Here, the evidence demon-
strates a corporate trustee (but no identifiable person) made the decision to
purposely violate the Washington Registration of Land Titles (Torrens) Act
in order to provide its clients with money at the expense of homeowners
with valid claims to keep their home under Washington law.
It is an open question in Washington whether the exercise of judicial
power by a corporate trustee to violate RCW 65.12.210 and .100 under these
circumstances complies with the mandates of Due Process that such deci-
sions be made a judicial officer who is and appears to be neutral. Marshall v.
20
Jerrico, Inc., 446 U.S. 238 (1980); Godfrey v. Ste Michelle Wine Estates Ltd.,
194 Wn.2d 957, 959, 453 P.3d 992 (2019).
The private and government Defendants also did not contest the Lar-
sons’ impairment of contracts arguments below, see CP 1214–21, 2668–
71, or here. OB 62–64. “One of the basic principles of contract law [based
upon the intent of the parties] is that the general law in force at the time of
the formation of the contract is a part thereof.” See citations at OB 62.
The DOT security instrument is very clear that “Applicable Law”
(including decisional law) is a part of that security agreement. See CP 3150,
Deed of Trust definition ¶ J “Applicable law”. To the extent the definition
of Applicable Law is ambiguous it must be construed in the Larsons’ favor
and against the drafter, i.e. MERS, the owner of the security agreement.
Rouse v. Glascam Builders, 101 Wn.2d 127, 135, 677 P.2d 125, 130 (1984); Guy
Stickney v. Underwood, 67 Wn.2d 824, 410 P.2d 7 (1966).
The evidence in the record documents that the nonjudicial foreclo-
sure lobby routinely lobbies the political branches to “clarify,” i.e., change,
the language of the DTA in its favor. See CP 556–60. The Larsons presented
evidence of the clarifications, i.e. changes, made to the DTA, including
those made after the Larsons 2006 DOT security instrument was signed.
See CP 1876–2239 (Amendments to the DTA). Those changes that were
made after the Larsons signed the DOT, and which Defendants now rely
upon here to support their theory of the case include without limitation (1)
adding RCW 61.24.127 and 61.24.130(1) and (6) purportedly limiting the
Larsons remedies for wrongful foreclosure, including their right to have
21
their property returned under traditional principles of equity in violation of
Washington’s long established land title registration statute, specifically
RCW 65.12.210 and its lis pendens provisions. See CP 1215-1217; and (2)
changing the decisional law set down in Bain v. Metro. Mortg. Grp., Inc., su-
pra., that nonjudicial foreclosures require that the DOT security instrument
not be purposely split from the note. CP 1217–1221. Bain also specifically
rejected case law from other jurisdictions that held DOT security agree-
ments automatically followed the note as a matter of law—which is the
contention of all Defendants, including government Defendants here. Id.
See also OB 64.
Under Sveen v. Melin, 138 S.Ct. 1815 (2018) Defendants have not
shown—or even tried to prove—that these changes, in the DTA have not
operated as a substantial impairment of the Larsons’ contractual relation-
ship with New Century. Nor have Defendants tried to explain why these
changes in Washington law to permit routine foreclosures in violation of tra-
ditional law and equity was an appropriate and reasonable way to advance a
significant and legitimate public purpose, which is now causing injury and
death to thousands of Washingtonians.
Another provision the Larsons claim was unconstitutionally added to
the statute books by the political branches for the benefit of its workers and
money lenders is the 2012 amendment to RCW 4.16.040 which takes
22
mortgage security agreements out of the six-year limitations period that ap-
ply to all other written agreements. See 4.16.040 (1)5.
The lack of an appropriate limitations period for homeowners was
raised below and in this Appeal as a denial of both Wash. Const. art. I, §§
10 and 12. See CP 1221–1231; OB 65–70. Because no defendant—govern-
ment or private—has ever responded to these arguments, the Larsons will
rely on this Panel to address them. When it does so the Panel should take
into account the facts in the record, which include without the limitation (1)
the numerous abandoned nonjudicial foreclosures on Larsons’ home occur-
ring since 2008; (2) DFI’s 2017 destruction of evidence relating New
Century’s behaviors, including its non-funding of closed loans; and (3) the
Bank and Trustee waiting to sell the house until after DFI had destroyed
this evidence. This Court should also keep in mind these same art. I, § 10
arguments were made to the Washington Supreme Court in DeYoung v.
Providence Med. Ctr., 136 Wn.2d 136, 960 P.2d 919 (1998), where they were
not considered only because relief was granted under art. I, § 12. Moreover,
the present Chief Justice wrote a law review article explaining why Wash-
ington courts should consider the type of access to justice issues raised here.
See Stephens, Debra (2016) “The Once and Future Promise of Access to
5 In 2012, the words “except as provided for an RCW 64.04.007(2)” were added to the six- years limitation period that applied to contracts generally since 1854. (2012 Amendments) This provision is designed so as to allow money lenders and debt buyers to determine whether any statutory limitation period applies to them.
23
Justice in Washington’s Article I, Section 10,” Washington Law Review
Online: Vol. 91, Article 46.
Certainly, the argument that this Court’s decision in Jackson v. Qual-
ity Loans resolves all these constitutional issues under the facts of this
wrongful foreclosure is either frivolous or suggests that such constitutional
arguments based on different sets of operative facts can no longer be made
to Washington courts.
15. Reply to Argument G: re Larsons’ Torrens Application proceedings now under consideration by this Court in Appeal No.,
81874-1-I,7 AB 26–28
Defendants G and G1 arguments at pages 26–28 of the Bank’s AB has
been previously addressed herein. The Larsons do not perceive a need to
reply further.
With regard to the merits of the Bank’s abstract of title analysis, ini-
tially advanced by Snohomish County judges and other government
Defendants aligned with the money lender/debt buyer Defendants, CP
3601–3604, the Larsons rely on the arguments below, including those at CP
3601–3604 (Snoco Judges’, clerk’s, and other Snoco officials’ motion); CP
3628–3700 (Stafne declaration); CP 3807–3812, 3821–3822 (Larsons re-
sponse brief). The Larsons also rely on the arguments made to this Court as
6 Accessible at: Available at: https://digitalcommons.law.uw.edu/wlro/vol91/iss1/4 Last accessed 9/15/2020. 7 Because Defendants’ arguments in this section of its AB are entirely based on what the superior court adjudicating the outcome of the registration application proceedings decided in the registration application proceedings, the Larsons moved for consolidation of these appeals pursuant to RAP 3.3 as they were required to do. A clerk denied that motion. The Larsons moved to modify the clerk’s ruling. That motion is still being considered at this time.
24
to why Judge Svaren did not have authority and/or subject-matter jurisdic-
tion to rule on this issue. See OB 24–26, 37–39, 50, note 13, 52–53.
Additionally, by way of reply the Larsons assert that In re Schnarrs ob-
serves: “The legislature . . . declared that “[t]his act [Ch. 65.12 RCW] shall
be construed liberally, so far as may be necessary for the purpose of carrying
out its general intent, which is, that any owner of land may register his title and
bring his land under the provisions of this act, . . .”. Interpreting RCW
65.12.085 in such a way that the statute cannot be utilized to protect land-
owners from fraud where aligned government workers and money lenders
want to use foreclosure proceeds to line their pockets is inconsistent with
the purposes of RCW 65.12 RCW and directly contrary to RCW
48.29.010(1) which states “This chapter relates only to title insurers for
real property.” If the political branches that enacted this statute had in-
tended a purpose of this law was to repeal the Registration of Land Titles
(Torrens) Act, surely they would have said so. See CP 3821–3822.
16. Reply to Argument H: re the Larsons motion to for leave to file an amended complaint. AB 30
The Bank erroneously claims the Larsons “do not offer any argument
that they should have been allowed to amend their pleadings as to the Pri-
vate Defendants.” AB 30. This is not true. Assignment of Error 5
specifically states Judge Svaren erred by not allowing the Larsons to file an
amended complaint (1) asserting the private trustee “violated RCW
65.12.210 by unlawfully selling the Larsons’ house pursuant to Ch. 61.24
RCW”; (2) clarifying their constitutional arguments, which if upheld would
25
void the sale by the private Defendants; and (3) alleging additional damage
and equitable claims against Defendants. OB, 4.
The issues relating to Assignment of Error 5 make clear this assign-
ment applies to both government and private Defendants. See Issues A, B,
C, and D, OB 4–5. The argument section relating to this assignment of error,
OP 49–53, also makes clear that Larsons’ primary complaint is that had
there been an operational land registration system in Snohomish County the
judge in the Larsons’ application proceedings would have afforded the Lar-
sons’ a timely opportunity to file an abstract of title if that were necessary.
OB 52-3. See also 65.12.110 (. . . “If the opinion of the examiner is adverse to
the applicant, he or she shall be allowed by the court a reasonable time in
which to elect to proceed further, or to withdraw his or her application . . .” )
17. Conclusion
This Court should hold that Judge Svaren and the court below did
not have subject-matter jurisdiction to dismiss the Larson’s registration ap-
plication proceedings in Snohomish County Cause No. 18-2-04994-
31/Division I Appeal No. 81874-1-I.
In the event this Court finds the lower court had subject-matter juris-
diction to decide the other issues raised below, this Court should order
judicial officers below to consider and decide those judicial disqualification
issues raised by the Larsons herein, i.e. (1) whether judges in precisely the
same position as Snohomish County judicial Defendants with regard to not
complying with their ministerial duties under Ch. 65.12 RCW have a direct
interest in deciding this case in such a way that as to conclude that neither
26
they nor the Snohomish County judges have violated the law; and (2)
whether the separation of powers clause prohibited the creation of retire-
ment accounts that reward all government workers (including judges) with
proceeds derived from judicial decisions favoring aligned money lenders
and debt buyers foreclosing on homes.
If this Court gets beyond these issues, it should reverse Judge
Svaren’s denial of the Larsons’ motion for leave to amend their complaint.
This Court should hold there are issues of fact and law that should
have precluded Judge Svaren from granting summary judgment in this case.
This Court should reverse that summary judgment and remand this back to
an appropriate court and judicial officer for a trial of this case.
Respectfully submitted,
By: s/Scott E. Stafne x Scott E. Stafne, WSBA No. 6964
Stafne Law Advocacy & Consulting 239 N. Olympic Avenue Arlington, WA 98223
360.403.8700 [email protected]
Attorney for Petitioners-Appellants
27
Certificate of Service
I hereby certify that on this day, December 2, 2020, the Appellants’
Reply to Answering Brief by Deutsche Bank, SPS, and MERS; and Joinders
therein by Quality Loan and Snohomish County, its Officials and Judges was
filed with this Court’s electronic case filing system which also served the
counsel of record in Appeal No. 80968-7.
Dated this 2nd day of December 2020, in Arlington, Washington.
By: /s/ LeeAnn Halpin x LeeAnn Halpin, Paralegal
STAFNE LAW ADVOCACY & CONSULTING
December 02, 2020 - 4:52 PM
Transmittal Information
Filed with Court: Court of Appeals Division IAppellate Court Case Number: 80968-7Appellate Court Case Title: Christopher E. Larson, et ano., Appellants v. Snohomish County, et al.,
RespondentsSuperior Court Case Number: 19-2-01383-2
The following documents have been uploaded:
809687_Briefs_20201202165130D1005740_0762.pdf This File Contains: Briefs - Appellants Reply The Original File Name was 2020.12.02. Larson. Reply.pdf
A copy of the uploaded files will be sent to:
[email protected]@[email protected]@[email protected]@[email protected]@[email protected]@[email protected]@[email protected]@[email protected]@[email protected]@[email protected]
Comments:
Sender Name: Scott Stafne - Email: [email protected] Address: 239 N OLYMPIC AVE ARLINGTON, WA, 98223-1336 Phone: 360-403-8700
Note: The Filing Id is 20201202165130D1005740
•
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