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Getting Married In Spain: General Overview and Legal Issues For Foreigners In Irregular Situation

August 27th, 2013

It is a fact that most foreigners deciding to marry in Spain choose to engage legal representation to guide them through the legal aspects of their marriage  (a procedure that may appear to be -deceitfully- as straightforward as applying for a NIE), the reasons behind this decision being clear: legal and administrative complex laws and regulations, protracted timescales, unexpected requirements from Government offices, language barrier…etc.

The process to be followed for the validation and correct attestation by the different authorities abroad often leads to a tiring and exasperating process. There is not an homogeneous approach nor consensus in the listing of the required documentation and, in all fairness, Spanish authorities are not to be fully blamed for each country has different rules: for instance, a German citizen that wants to celebrate his/her marriage in Spain will not only need a birth and marital status certificate, but also a marriage capacity certificate that indicates if he/she is particularly able to marry the person chosen. This also happens to French citizens. For other nationalities, mainly those from Islamic countries, a certificate that states the applicant is not married to someone else will also be required as, in some of those jurisdictions, polygamy is legally recognized.

Therefore, it is not possible to offer a definitive time-frame for the process to be ended though, at least, these are the confirmed stages, common to the core procedure:

  1. Formal application form that has to be filed at the Civil Registry of the town where the union will take place, to be filed together with the documentation.
  2. Interview to bride and groom.
  3. Appointment with witnesses that will jointly sign the petition to the Judge.
  4. Obtaining the authorization from the Courts of Justice of the particular town so the marriage can be celebrated.

Following this authorization, available dates are offered to the couple.

Another relevant issue is the question hundreds of foreigners ask themselves every year, especially those who are in an irregular situation in Spain and wish to formalize their personal relationship with a Spanish resident:

Can I still marry in Spain if I am irregular?

The answer to this, which  has not changed for many years, is YES. And additionally, the law also grants equal rights to civil law partnership although, as envisaged, formalities will differ depending on the town where partners wish to register such formalization:

  • Some municipalities issue temporary by-laws based on recent irregularities, or either set fixed limitations as a consequence. For instance, only processing marriages and not Common Law partnerships for irregular foreigners ( see Cataluña (http://sociedad NULL.elpais NULL.com/sociedad/2012/05/01/actualidad/1335899751_106907 NULL.html)).
  • Some municipalities set that it is mandatory that one of the parties has been registered in the Town Hall ( empadronado ) for at least two years. This happens, for example, in the City of Malaga and surrounding districts ( Alhaurin de la Torre, Churriana, etc )

In line with the above, a further question that arises is

If a partner is in Spain irregularly and getting out of Spain implies the prohibition to re-enter in the following 12 months, how will he/she be able to arrange and gather the required documentation and legalization from the foreign authorities?

There are various options:

  1. Granting a Power of Attorney to his/her relatives or a legal representative in the home country to make dealings in his/her behalf.*
  2. Requesting assistance from Consular and/or diplomatic offices representing their home country in Spain.

*For Moroccan citizens, the previous registration of the applicant in the consulate is required to be able to deal with administrative matters. The applicant must have been registered ,normally, between 6 months and a year prior to any administrative request.

The current Policy framework allows for an ample discretionary nature on the part of the Civil Registries when determining the requirements, something that pushes foreigners to finally seek for legal aid and support,

Below is a list of the most commonly required documentation, as well as the legalization procedure for foreign official documents to be valid in Spain:

  1. Official Application form
  2. Passport copy of each partner
  3. Copy of the Residence card/certificate of the residing party
  4. Certificate of Town Hall Registration ( Empadronamiento ) and Joint Registration certificate (volante de Convivencia ), if required.
  5. Birth certificates of each partner ( attested as legally required and translated into Spanish by a sworn translator )
  6. Marital Status certificate and marriage capacity certificate for certain nationalities.

We include here the informative page (http://extranjeros NULL.empleo NULL.gob NULL.es/es/informacioninteres/informacionprocedimientos/documentos2/108 NULL.pdf) that describes in detail the foreign documents legalization process.

We welcome readers’ comments on particular obstacles, exceptional requirements, frustrating experiences and any other similar circumstances they may have found themselves in when dealing with the subject matter of this post.

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Plagiarism: Flattery or Just Plain Stealing?

May 7th, 2010

Since founding of the belegal.com website (http://belegal NULL.com/about/) in August 1999, we have been publishing articles and blog posts on legal matters that were of interest to the Expat Community. These articles are written with the aim of providing insight to legal topics that continuously crop up in the free legal queries’ section (http://belegal NULL.com/questions/askALawyer/) to which we’ve been replying to, on a daily basis, for over a decade now.

Some people like our articles and blog posts so much that they happen to borrow them from our article archive (http://belegal NULL.com/articles/showArchive) and/or blogs (http://belegal NULL.com/blogs/) and include them in their own blogs or corporate websites crediting us as the authors as well as placing a working link back to our website, which is just fine by us. Yet a minority decides to take a step further crossing the red line, removing the names of the lawyers that wrote them so as to cheekily credit themselves as the authors! Some would argue that imitation is the most sincere form of flattery, albeit in our opinion profiting from other’s hard work whilst taking credit for it is just too much to bear with. We certainly do not regard it as flattery, and take legal action against offenders when appropriate.

In Spain, articles, blog posts and in general all original written material is protected by Spain’s Intellectual Property Laws (Royal Decree 1/1996). Moreover, Spain’s Penal Code in its Chapter XI protects author’s Intellectual Property Rights against plagiarism in three articles no less (articles 270-272 (http://noticias NULL.juridicas NULL.com/base_datos/Penal/lo10-1995 NULL.l2t13 NULL.html#c11s1)), which have associated to them prison sentence, ranging from 6 months to 4 years. All an offended needs doing is file a denuncia against the offender. As an example, two people were arrested in Torremolinos (http://www NULL.diariosur NULL.es/20080714/local/malaga/detenidos-torremolinos-plagiar-pagina-200807142046 NULL.html), and were taken into custody for plagiarizing just one article from a website.

Furthermore, all our articles are protected with Copyscape (http://www NULL.copyscape NULL.com/)software, so sooner or later we are bound to catch all those using them without authorisation. Over the last decade we’ve caught over a hundred websites using them unlawfully, as well as seven lawyers, both Spanish and British, all of which apologized. Native English speakers may be harder to hound, because, on mastering English, they are able to sneakily change the wording, producing what they think is an “original” work that makes our copied articles more difficult to track down. Amending or tweaking written content to fool search engines is still regarded as plagiarism and only buys them some time; regardless, they will be held personally liable when found.

As written above, and as per the site copyright policy (http://belegal NULL.com/about/copyright), we have no problem in anyone using our legal articles in their own websites so long as they comply with two simple requirements:

  1. Crediting the lawyer who  wrote them, either as a source or as the author, as appropriate.
  2. Placing a working link back to our website where these articles were originally published.

On complying with the above, there is absolutely no need to previously contact us to request our permission to publish them. Hundreds of websites, spanning from mortgage brokers to real estate agencies, use our legal articles unhampered. We only contact those whom we feel abuse us taking unfair advantage of our hard work by not crediting us as the authors or even going as far as removing us and crediting themselves as the authors of our articles!

Spot The Differences

The following three companies have been previously contacted by us allowing them the chance, at their choice, to either remove our articles from their websites or else credit us as the authors. None of them apologized.

 

Examples of plagiarism:

Idealspain.com

  • Drunk Driving Offence in Spain (http://www NULL.marbella-lawyers NULL.com/articles/showArticle/drunk-driving) – Our original article published on the 1st March 2001.
  • Drinking and Driving in Spain (http://www NULL.idealspain NULL.com/Pages/Information/drinkdrive NULL.htm) – “Inspired” article, both unsigned and undated.

Malaga Law Solicitors

  • Dissolution of Joint Property Ownership in Spain (http://belegal NULL.com/articles/showArticle/dissolution-of-joint-property-ownership-in-spain) – Our registered article published on the 14th November 2007.
  • Deed of dissolution of joint property ownership (http://www NULL.malagalaw NULL.com/news/guides/deedofdissolution NULL.asp) – “Inspired” article written in late 2008, both unsigned and undated. 

Adding insult to injury is the fact that the only original contribution to it happens to be incorrect legal advice regarding the retention of 3% practiced to non-fiscal residents applied by The Spanish Tax office, which our original article explains correctly.

Tumbit.com

  • Bank Repossessions in Spain: A Legal Perspective (http://belegal NULL.com/articles/showArticle/home-repossessions-in-spain-defaulting-on-mortgage) – Our registered article written in 2007 and published on the 25th June 2008.
  • When you can’t pay the Mortgage (http://www NULL.tumbit NULL.com/how-to-guides/articles/45-when-you-cant-pay-the-mortgage NULL.html) – “Inspired” article from late 2009, both unsigned and undated.

Uncategorized

Polaris World Avoids Falling Into Insolvency

April 23rd, 2010

As we had previously reported, PW was on the brink of filing for Insolvency if it failed to renegotiate 85 million euros of debt. It had already negotiated successfully to refinance over 900 million euros.

PW has successfully waived filing for receivership on reaching an agreement late last night with CAM, Bancaja, Bank Popular and Bank of Valencia to sell assets for the amount of 83 million euros. In exchange PW has transferred ownership of dwellings, golf courses, plots of land and hotels. It has taken PW the last 4 months to re-negotiate its debt commitments. Official confirmation will be today.

The group of companies affected by the possible insolvency were two hotels (Mar Menor Golf Hotel and La Torre Polaris Hotel), El Valle Golf Resort, Polaris World Sports Centre, Polaris Desarrollo, Hacienda Riquelme, Polaris World Development, Polaris World Alquiler de Maquinaria Industrial, Polaris World Hormigones, Polaris World Real Estate, Hacienda Verde, Nicklaus Golf Trail, Mar Menor Golf Hotel, La Torre Polaris Hotel, Centro Comercial El Oasis de Alhama, Oasis Polaris Ciudad, y Alhama Golf Resort.

Currently it has 700 employees which is a long shot from the 2,000 it used to employ in the boom years.

Source: La Verdad (http://www NULL.laverdad NULL.es/murcia/v/20100423/region/polaris-world-elude-precipicio-20100423 NULL.html)

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Volcanic Ash, Cancelled Flights and Passenger’s Rights

April 19th, 2010

So, has your flight been cancelled back to the UK? Both European Parliament Regulation EC 261/2004 (http://eur-lex NULL.europa NULL.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&numdoc=304R0261&lg=EN) and of the Council of 11th February 2004 establish common laws ruling on the compensation and assistance of flight passengers in case of denied boarding or great delay in take off which is applicable and enforceable in all EU member states.

Following this regulation, in case of flight cancellation, passengers are entitled to the following (Art 7 Rights to Compensation):

  • Full refund of the air ticket within the next 7 days or alternatively to a ticket to the starting point or been driven to the destination point.
  • Pampering (drinks and food, hotel lodging, transport from the airport to the lodging destination, possibility of making two free phone calls or else send two telex, two faxes or two emails)

To a flat fee compensation which will amount to:

  • 250€ for flights of up to 1,500 kms
  • 400€ for paneuropean flights of more than 1,500 kms. For the rest of the flights between 1,5000 and 3,000 kilometres.
  • 600€ for all flights that may not be included in the above categories

Operating air carriers however will be able to waive paying compensation if they are able to prove either that a force majeure (volcanic ash is as good as it gets!) took place or else severe meteorological conditions that may compromise the flight’s security (Art 94 of Flight Law). Art 5.3 of EC 261/2004 rules further on this:

5.3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

This waiving of responsibility is nothing more than an extension of the legal principle set forth in article 1.105 of the Spanish Civil Code whereby as a general rule no-one may be held liable to compensate as a result of unforeseen events or even if foreseen, were altogether unavoidable.

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Light at the End of the Tunnel: Developer Habitat Will Resume Trading After Putting and End to its Insolvency Procedure

March 31st, 2010

High profile developer Habitat filed for receivership in December 2008. Its receivership procedure was the second most important in Spain after Martinsa-Fadesa which filed for receivership in 2007 owing in excess of seven billion Euros.

Barely two years on, an agreement striked at the Creditors General Meeting  held early on this year will reschedule Habitat’s outstanding financial commitments.

As we had explained previously, the aim of Spain’s Insolvency Act of 2003 is to allow financially struggling companies to buy time and re-arrange their financial commitments with their creditors, either by extending the loan period or by reducing the debt burden or both. The whole receivership procedure is geared towards saving these ailing companies which may be undergoing severe temporary cash flow problems.

Following the trail of developer Llanera, which also concluded successfully its receivership last year, 82% of Habitat’s financial creditors have backed the overhauled debt plan as well as by 80% of the normal creditors. The former are namely major lending institutions which constitute the bulk of habitat’s debt which tallies over a billion Euros. The latter would include off-plan buyers for example.

It is foreseen Habitat will officially exit its receivership on the 19th of April this year when the judge of Barcelona’s Company court number three will put an end to it.

The Repayment Proposals
 
The first proposal establishes that creditors will receive 80% of their debt, of which 50% will be paid in the following 8 years and the balance will become a syndicated loan.

The second proposal has a shorter waiting period of only 5 years but in return creditors forfeit 30% of their credit recovering only 70%.

Source: Invertia (http://www NULL.invertia NULL.com/noticias/noticia NULL.asp?idNoticia=2315979)

Property, Uncategorized , , ,

Smoking Ban: Government Reports That Smoking Will be Banned as From Next Year in Enclosed Premises

November 6th, 2009

Just when bar and restaurant owners thought things couldn’t get any worse, given the grim financial downturn, you can always rely on the Government to prove them wrong. Mrs Trinidad Jimenez, Spain’s Health Minister, announced yesterday that smoking will be banned in all closed public venues as from the 1st January 2010.

Bar, restaurant, hotel and discotheque owners have only just finished paying off the mandatory expensive reforms to their business premises so as to segregate designated smoking and non-smoking areas in compliance with the newly passed Smoking law (law 28/2005 which came into force on the 1st January 2006). Scarcely three years ahead the Government plans to scrape it off amending this law and banning smoking all together in closed public premises. So basically these refurbishments will now become useless.

On a side note, Spain’s football league are now threatening to go on strike if the tax reform announced by the Government this week is enforced whereby top-football-earners will now be taxed at the highest tax band of 43% instead of a flat income tax rate of 24%. This had garnered Spain widespread criticism throughout Europe on grounds of unfair competition.  Hopefully this will not be the case.

I think some people may be in for a hard time next year if they like watching football or smoking or both.

56 days to go…

Taxes, Uncategorized , ,

Protecting Yourself from Pyramid or “Ponzi” Schemes

February 21st, 2009

Businesswoman with handful of cashAs history’s finest investor, Mr Warren Buffet, once said, “You never know who’s swimming naked until the tide rolls out”. Well the tide has rolled out and investors are panicking withdrawing and liquidating their portfolios in a frantic rush against time to raise funds. It is in such dire times of massive redemption requests when Ponzi schemes (http://en NULL.wikipedia NULL.org/wiki/Ponzi_scheme) are unravelled in all crudity and it becomes all too apparent who was in fact swimming naked. Within the last months we’ve witnessed Madoff’s and this very week Stanford’s Ponzi schemes imploding, sucking in their wake thousands of millions of euros. Are we immune in Spain to such financial ploys? Not so.  

What is a Ponzi Scheme?

This scam involves promising high yields (above the market average) to dazzle gullible investors. These yields are actually paid to existing investors from the funds of newcomers. So a Ponzi scheme needs to continuously lure in a base of new investors to self-perpetuate itself. They normally spread themselves like viruses by word-of-mouth but do not frown advertising themselves in local newspapers. The first recorded case was in the USA in the last quarter of the XIX century although its name is taken from an Italian-American immigrant, Charles Ponzi, who fleeced thousands of investors in Boston in the 1920’s out of 10 million dollars. 

How Long do they Last

Not long, normally only months or a couple of years at most, a noticeable exception would be Madoff’s which lasted remarkably over three decades escaping all detection. As these pyramids need to continuously find a new influx of investors to meet the promised repayments of existing ones they eventually self-implode collapsing like a house of cards as they are unable to keep the rapidly growing pace. Noticeable cases in Spain (aimed exclusively at Spaniards) have been Forum Filatélico and AFINSA both dealing with postage stamps.

I’m too Smart to be Caught in One

No-one is too smart. Judging by Madoff’s and now Stanford’s cases in which the World’s supposedly finest and most sophisticated affluent investors have been caught-up one should not underestimate one’s own greed. These scammers are top salesman and bank on people’s greed to make a living. In fact these Ponzi schemes are not that rare at all in Spain.

If you pick up any weekly English newspaper sold in Spain you will read advertisements that promise you suspiciously two digit yields from exotic and often obscure foreign opportunities. Naturally, these financial advisors are unregulated by Spain’s CNMV (the equivalent of the UK’s FSA) and prey exclusively on foreigners, preferably on their own countrymen to create rapport. The reason that Spaniards are not targeted is that they would quickly raise the alarm of the local authorities so they are careful to only target foreigners, the elder the better, so as to go undetected for as long as possible. Then regularly wind up these boiler rooms and move on to their next scam. As it’s often said, if it sounds too good to be true it often is.

What do I do if I Suspect of One?

You can contact Spain’s CNMV (http://www NULL.cnmv NULL.es/index NULL.htm) to check the financial advisors that have contacted you are indeed regulated to offer you financial products such as company shares. The CNMV regularly updates in its website such fraudulent companies. If you suspect the yield is too high you may want to take a second professional opinion from an unbiased source such as a chartered financial advisor or a qualified lawyer.

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Marbella’s New Master Urban Plan to be Approved Provisionally

October 28th, 2008

More than 48,000 owners will now be able to sleep well at night after majoress Ángeles Muñoz promised to include a new article in the new Master Urban Plan by which purchasers of good faith will be exempt of compensating for the regularisation of their illegal properties. In some cases some neighbours were liable for up to 12,000€.

Following up on our article (http://www NULL.lawbird NULL.com/articles/view/25)of 2nd of October 2007 Marbella’s Town Hall will be provisionally approving the new Master Urban Plan (P.G.O.U.).  Marbella’s majoress has declared in a press release that it is a triumph of all to make developers compensate the Town Hall for the irregularities. As per our prior article, the risk there was before was that if a developer was unwilling to pay this compensation it would be up to the new owner, the innocent third party of good faith, who would have the onus of compensating the Town Hall to regularise thier newly purchased home. This will no longer be the case after the inclusion of said article which forces developers to compensate in all cases. The developers will be given a year’s deadline to comply voluntarily after which the Town Hall’s legal representatives will be able to execute the compensations due at developer’s expense. 

The new amended Master Urban Plan includes 6,000 of the 8,500 public appeals that were brought forth. That is 70% of them were accepted including appeals made by more than 350 Community of Owners.

The areas which will now become regularised at the developer’s expense will be: 1,008 dwellings in San Pedro de Alcántara; 3,351 dwellings in Nueva Andalucía; 1,708 in Nagüeles; 1,999 in Marbella; 533 in Río Real and 406 in La Víbora. This regularisation process will involve the developers both granting plots of land of their own as well as purchasing them only to hand them over to the Town Hall so as to restore Marbella’s public areas devised for general use such as future schools or green zones.

The goal of Marbella’s New Master Urban Plan is to create a reliable legal framework that restores confidence back into the real estate market. This will benefit both prospective purchasers and developers.

Notwithstanding there are still 500 inhabited dwellings on which a general consensus must still be attained. Concretely the majoress referred to Banana Beach, Río Real and La Víbora. The remaining 1,500 uninhabited illegal dwellings could find a public use in the future such as Elder Foster Care.

The new amended P.G.O.U. still needs to go again under a second period of public scrutiny should anyone be interested in making additional appeals. Once the Junta de Andalucía gives its final approval the Master Urban Plan will be definitely approved. It is foreseen Marbella will have its new Master Urban Plan approved for spring of 2009.

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9 Tips on How to Determine if an Offer is a Scam

October 17th, 2008

We are receiving a dozen queries every day asking about the legitimacy of certain offer, generally received by email or over the phone after a cold call. Unfortunately, we cannot analyze case by case, and therefore will provide a set of useful hints which will help you evaluate the legitimacy of the company or individual yourself.

The list below is provided in no particular order:

  1. Is the domain name old enough? By means of a Whois (http://www NULL.whois NULL.sc/) search you can find out when the domain name was registered. If it’s only a few weeks old, be suspicious.
  2. Are they using mobiles? – If the phones used as contact numbers are mobile numbers instead of land lines, it’s definitely not a good sign. In Spain, mobile numbers start by +34 6..
  3. Have you been contacted out of the blue? – If you where cold called, or received an email from someone you don’t know, ask yourself why these people have your contact details.
  4. Are you being requested to pay money upfront? This is the single most worrying point if it comes in conjunction of with one or more of the above.
  5. Is the offer too good to be true? If the offer sounds too good to be true, it probably is.
  6. Is the company properly registered? – Although it’s something positive if they can provide you with company registration details, you shouldn’t give this point too much importance. Fraudsters have been registering companies for decades with the sole purpose of deceiving (e.g. dozens of companies where incorporated by fraudsters to conduct the infamous Timeshare Resale Scam (http://www NULL.lawbird NULL.com/news/view/4))
  7. Is the address for their offices correct? – Not sure why, fraudsters tend to provide you with fake addresses which don’t really exist. Check any of the online street directories and find out if the address provided is correct.
  8. Something strange about their names? Funny names such as “Woley Fernandez” or “Barrister Perez Santos ESQ” are names made up by Nigerians conducting 419 advance fee scams (http://www NULL.youtube NULL.com/watch?v=Q0e-pPfITts&feature=related) (the terms “Barrister” or “ESQ” don’t exist in Spanish law). Also, fraudsters tend to cite fake organisms such as “The Ministry of Finance” or “The Security Company”.
  9. What others are saying – Use search engines to find information about the company. Try putting the company in inverted comas, and add terms like “scam” or “fraud”. The company or individual you mention might have already been reported online as fraudsters by other people.

Needless to say, the above list shouldn’t be taken as definitive, nor the absolute legitimacy o illegitimacy of a company established based on one or more of the above points. You can use it, however, to personally evaluate the risk of the transaction.

My recommendation is that you never pay any moneys upfront if you have been contacted out of the blue. However, if you have to, before doing so always suggest the use of an escrow company (chosen by you) to hold the funds until the product or service has been delivered. If they refuse, I recommend that you back off.

Always remember; have a lawyer analyze the transaction before making any up-front payments.

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Spain Approves Bank Deposit Guarantees Up to €100,000

October 7th, 2008

Today it has been confirmed that Spain will guarantee all bank deposits up to €100,000. Until today the minimum amount guaranteed by law throughout Europe was €20,000 in case a bank filed for bankruptcy.

In practice, UE members have the freedom to raise the yardstick as they see fit. Such has been the case of the United Kingdom which has raised this week the minimum amount protected from 33,000 to 50,000 GBP in retaliation to Ireland’s unilateral decision of protecting the full amount of their depositors funds. This has created liquidity problems to UK banks which have witnessed massive withdrawals of funds seeking the save haven of Irish banks. Following Ireland’s decision last week, Germany also guaranteed the full amount of private individual’s bank deposits on Monday the 6th October. Many other European countries have followed Germany’s example this week.

In view of the unilateral increases of Ireland and the United Kingdom, the European Union’s Finance Ministers (Ecofin) gathered and decided today to raise the minimum amount protected from €20,000 up to €50,000. All European countries will now be forced to guarantee at least the said amount having the liberty to raise it. Spain only protected €20,000 until early this morning.

Spain’s president, Mr Zapatero, held an urgent meeting yesterday in Madrid with Spain’s six most prominent banks and savings banks promising to raise the minimum protected amount above the UE’s new threshold of €50,000 without specifying any concrete amount.

We welcome these measures, as they should help reduce the sense of panic and bring back confidence in the banking system.

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