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UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

In re:

Marilyn Fessler,










Debtor.
______________________________/





















Case No. 11-53376
Chapter 13
Honorable Steven W. Rhodes


OBJECTION TO BELFOR USA GROUP, INC’S MOTION TO DISMISS

DEBTOR’S BANKRUPTCY CASE PURSUANT TO 11 U.S.C. §1307

Debtor Marilyn Fessler,

through her counsel, Charles J. Taunt &

Associates, PLLC, files this Objection to Belfor USA Group, Inc.’s Motion to

Dismiss Debtor’s Bankruptcy Case Pursuant to 11 U.S.C. §1307. Given the

format of Belfor’s Motion as a combined motion and brief, a paragraph by

paragraph response is not practicable. Ms. Fessler denies that her bankruptcy

petition is filed in bad faith and requests that this Court deny Belfor’s Motion for

the following reasons:

1.

Ms. Fessler is not and has never been a party to any proceeding filed

by Belfor in the state court. Belfor requests this Court determine, without due

process, that she is not only liable for a judgment she has never had the

opportunity to defend, but also that such judgment is non-dischargeable.

2.

This bankruptcy is not a two-party dispute. Ms. Fessler has multiple

creditors for whom she can and intends to use the bankruptcy process to

reorganize.

3.

Belfor’s claim against Ms. Fessler is disputed both factually and

legally and should not be determined through the basis of a motion for dismissal.






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WHEREFORE for the reasons set forth herein and as described in the Brief

in Support of Objection filed concurrently herewith, Marilyn Fessler requests this

Court deny Belfor’s Motion to Dismiss Debtor’s Bankruptcy Case Pursuant to 11

U.S.C. §1307 and award Ms. Fessler with costs in having to defend said Motion.



CHARLES J. TAUNT & ASSOCIATES, PLLC





/s/ Erika D. Hart
Attorney for Debtor
700 East Maple Road, Second Floor





Birmingham, MI 48009

(248) 644-7800
[email protected]
(P67457)



















Dated: August 10, 2011




















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UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

In re:

Marilyn Fessler,










Debtor.
______________________________/
BRIEF IN SUPPORT OBJECTION TO BELFOR USA GROUP, INC’S MOTION
TO DISMISS DEBTOR’S BANKRUPTCY CASE PURSUANT TO 11 U.S.C. §1307


Case No. 11-53376
Chapter 13
Honorable Steven W. Rhodes





















Belfor’s Motion to Dismiss Debtor’s Bankruptcy Case Pursuant to 11

U.S.C. §1307 (“Motion to Dismiss”) is an attempt to circumvent the bankruptcy

process and to deny Ms. Fessler her right to both the automatic stay and to her day

in Court. The Motion to Dismiss is a continuation of the improper and vicious

attacks against Ms. Fessler which began in the state court, despite the fact that

Belfor has initiated no litigation against her, no judgment has been entered against

her and Ms. Fessler has never had a contract with Belfor.

Ms. Fessler is entitled to relief under the Bankruptcy Code. She has

multiple debts which can benefit from resolution in the bankruptcy process. There

is no judgment against her, let alone a determination by any court that can allow

the Bankruptcy Court to decide without due process that a debt is non-

dischargeable, a debt to which she was never a party and disputes both factually

and legally.

Factual Background

In 2007, there was a flood in the day care center operated by Creative Steps

Learning Centers, Inc. (“Creative Steps”). Belfor USA Group, Inc. (“Beflor”) was

hired by Creative Steps to repair the damage and, to this day, the repairs remain



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unfinished. The entire contents of the day care were damaged. Those items which

were not destroyed by the water were so damaged and covered in mold that they

could not be used in the day care again for safety reasons. Creative Steps leased

new equipment (educational, toys, tables, etc) from Ms. Fessler’s daughter,

Elizabeth Fessler (Smith), in order to continue operations. See Affidavit of Ms.

Fessler attached as Exhibit A and Lease with Elizabeth Fessler (Smith), attached

as Exhibit B.

Belfor sued Creative Steps only in Oakland County Circuit Court in 2008

and, through a series of improper tactics and other court errors, obtained a

judgment against Creative Steps only in March 2010. The underlying amount at

issue was $43,601.08 and Belfor, on an oral motion for damages, obtained a

judgment against Creative Steps only for treble damages for conversion in the

amount of $142,800.00 (the “Creative Steps Judgment”). The request for treble

damages was never even plead in the Complaint. See Complaint attached as

Exhibit C. Ms. Fessler was never a party to this suit and strongly contests that

Belfor is entitled to any compensation, from Creative Steps, but also from herself.

Belfor makes strong claims against Ms. Fessler in its Motion to Dismiss,

but this does not provide the entire picture or a real explanation of why Ms.

Fessler must have an opportunity to defend the claims against her. In reality,

Belfor not only did a terrible job in repairing and failed to complete repair of the

flood damage, but it is Ms. Fessler’s position that Belfor charged for services that

were never rendered to Creative Steps, including supplies that were never used

(charging for vinyl dry wall but using regular dry wall) and cleaning which was



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done by the Creative Steps staff, and not by Belfor. See Affidavit attached as

Exhibit A.

In addition, Belfor makes much of Ms. Fessler’s 341 testimony (for which

no transcript is attached) regarding alleged misuse of insurance proceeds, when the

contract with Creative Steps itself allowed for payment to other contractors for

their repair work from such proceeds. See Affidavit attached as Exhibit A.

Belfor waited a year to enforce its judgment. During that time, in order to

survive in a struggling economy, Ms. Fessler had to change the structure of her

business model and Cedarbank Investments (“Cedarbank”) was born in June 2010,

at the end of the prior school year. Cedarbank is a different company and a

different program from Creative Steps – Cedarbank is a Christian focused

Montessori academy that also offers teacher training, advertising partnership, and

senior aid. Creative Steps was not a Christian based curriculum and did not offer

teacher training and senior aid. Contracts were executed between Cedarbank and

parents, a lease was drafted for use of the equipment from Ms. Smith, and

Cedarbank executed a lease for use of the building (the prior lease between

Creative Steps and M&E Holdings, LLC had expired). Cedarbank is a complete

separate and different entity which uses nothing of Creative Steps and has a

different ownership structure from Creative Steps. See Affidavit of Ms. Fessler,

attached as Exhibit A.

Like most childcare facilities, Cedarbank’s operations are locked down

during the day to protect children from strangers. Upon the arrival of court

officers to enforce the Creative Steps Judgment, Ms. Fessler correctly informed



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them that there was no property inside owned by Creative Steps and directed the

officer to the damaged equipment remaining in the outbuilding on the property.

Ms. Fessler offered that they could return when children were no longer present,

but that she could not allow them into the premises. Further, she informed them

that the operations were not that of Creative Steps, but that of Cedarbank. See

Affidavit of Ms. Fessler, attached as Exhibit A. Cedarbank also has its own

licensing, contrary to Belfor’s claims in its Motion. See licensing for Cedarbank,

attached as Exhibit D.

Instead of asking for a creditor’s examination or seeking permission from

the Oakland County Court to enter the premises via motion, Belfor filed a motion

to hold Ms. Fessler and Cedarbank in contempt and in the context of a post-

judgment motion in a case to which Ms. Fessler and Cedarbank were not parties,

to have the entire judgment against Creative Steps entered against Ms. Fessler

and Cedarbank as well.

Belfor’s own state court counsel indicated the vindictiveness of their efforts

in stating that Belfor would follow Ms. Fessler until the end of the earth.

With other liabilities to deal with, including an unknown deficiency to PNC

Bank on a personal guaranty (likely in excess of $100,000, but unknown at this

time), Ms. Fessler filed for Chapter 13 bankruptcy. Belfor attempts to attack Ms.

Fessler’s choice of venue, when this is exactly what the bankruptcy process

allows.

Now Belfor continues its outrageous efforts to truncate Ms. Fessler’s legal

rights, by asking this Court to determine, without due process, that Belfor’s claims



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against Ms. Fessler are non-dischargeable without trial and claims that therefore

the Chapter 13 is of no use.

Legal Arguments

A.

The Debtor has filed her petition in good faith and Belfor has the

burden to prove otherwise.

“In the context of section 1307(c), the burden of showing the debtor's lack of

good faith is borne by the party seeking dismissal. See Love 957 F.2d at 1355.”

Alt v. United States (In re Alt), 305 F.3d 413, 420 (6th Cir. Mich. 2002)

Belfor miscites

In

re Newsome, 92 B.R. 941

(Bankr. M.D. Fla. 1988)

in stating that the burden of proving good faith somehow rests upon Ms. Fessler.

Belfor has failed to carry its burden of proof. The Debtor has other

creditors and obligations other than Belfor. See attached Affidavit, Exhibit A,

and Schedules on file with the Court (Docket No. 11). While the timing of her

petition is certainly related to the motion filed by Belfor, part of Ms. Fessler’s

decision to file bankruptcy was that the likely deficiency to PNC Bank on her

personal guaranty would be resolved as well. See attached Affidavit, Exhibit A.

Simply filing a bankruptcy on the eve of a motion or court action is not sufficient

for a showing of bad faith, or many bankruptcies would be dismissed simply on

this basis.

1.

At a minimum, any debt to Belfor has yet to be adjudicated.

Ms. Fessler was not a party to Belfor’s state court action against Creative

Steps and is not a party to the Creative Steps Judgment. Belfor’s attempt to

circumvent the judicial process to ask the Court to hold, under what appears to be



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a res judicata basis, that Ms. Fessler is also liable on the Creative Steps Judgment

is improper.

Belfor is asking this Court to determine that (1) Ms. Fessler’s actions were

contempt of a prior Court order, (2) as a consequence, Ms. Fessler should be

responsible for the entire Creative Steps Judgment, and (3) that such liability is

non-dischargeable, rendering her Chapter 13 useless. Belfor asks all of this,

without ever having named Ms. Fessler in a single court action.

Belfor’s citation of In re Penning, 22 B.R. 616, 619 (Bankr. E.D. Mich. 1982)

is not on point. In Penning, the debtor was actually named as a defendant and had

the opportunity to fully and fairly litigate whether conversion occurred. Here, Ms.

Fessler has never been named as a party to any dispute and has never had the

opportunity to litigate whether there was a conversion, let alone whether she is

liable for same. Belfor asks this Court to make the giant legal and factual leap in

holding that because an individual was found liable for conversion in Penning,

therefore Ms. Fessler must be liable as well.

At a minimum, Ms. Fessler is entitled to an opportunity to respond to the

allegations against her and not to be bound by a judgment in a case in which she

was not a party. The law demands this opportunity and res judicata does not

apply in this case.

Whether an action is barred by res judicata principles is determined by the
application of four factors:
1. A final decision on the merits in the first action by a court of competent
jurisdiction;
2. The second action involves the same parties, or their privies, as the
first;
3. The second action raises an issue actually litigated or which should
have been litigated in the first action;



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4. An identity of the cause of action.


Ohio Truck & Trailer, Inc. v. Level Propane Gases, Inc. (In re Level Propane Gases,

Inc.), 422 B.R. 93, 101 (B.A.P. 6th Cir. 2010)(emphasis added), citing Century Indemnity

Co. v. Special Metals Corp. (In re Special Metals Corp.), 317 B.R. 326, 331 (Bankr. E.D.

Ky. 2004) (citing Sanders Confectionary Prods., Inc. v. Heller Fin., Inc., 973 F.2d 474,

480 (6th Cir. 1992)).

The Oakland County Circuit Court action was filed against Creative Steps and

Ms. Fessler was not a party. She cannot be held liable for a judgment to which she was

not a party, without due process. A motion for dismissal of her Chapter 13 bankruptcy is

hardly due process on a judgment in excess of $140,000, to which she has never had a

chance to personally respond.

“In analyzing the parties' respective burdens and the totality of the circumstances,

it is important to dismiss for ‘bad faith’ only in narrow circumstances so as to avoid ‘. . .

a risk of judicial usurpation of the legislative power to determine the scope of and

eligibility for bankruptcy relief in general or under a particular chapter.’ Hamm v.

Manfredi (In re Manfredi), 434 B.R. 356, 359 (Bankr. M.D.Pa. 2010), citing In re Jensen,

369, B.R. 210, 233 (Bankr.E.D.Pa.2007).

The burden is on Belfor to show that the case should be dismissed under §1307.

Belfor cannot meet this burden and dismissal for bad faith under these circumstances is

not warranted. Ms. Fessler has simply tried to operate her business to meet her

obligations to the families she cares for and the family of her own, no more. When the

economy demanded, Ms. Fessler recognized that the old model of Creative Steps was not

functional and changed her business model with a partner and different services.



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Belfor continues its attacks against Ms. Fessler in the belief that she or her ex-

husband Richard Fessler, have some funds which Belfor can leverage them into paying if

Belfor drives hard enough. This is absolutely not the case. Ms. Fessler has no savings

which are not leveraged to a secured creditor, she has no retirement funds, receives no

alimony or support from her ex (they were divorced decades ago), no income from any

other source. Her schedules are a true reflection of her dire need for this bankruptcy

process.

2.

This case is not a two party dispute.

Ms. Fessler is a personal guarantor on an obligation to PNC Bank, secured

by a mortgage against real property owned by her single purpose entity, M&E

Holdings, LLC (the building from which Cedarbank operates). See attached

Affidavit of Ms. Fessler, Exhibit A. See also attached forbearance agreement with

PNC Bank, attached as Exhibit E. Given the current economy, Ms. Fessler is

uncertain of the value of the underlying real property, but understands from local

comparisons it could be worth half or less than owed, leaving a deficiency in

excess of $100,000.

This case simply is not a two party dispute and Ms. Fessler is entitled to use

the bankruptcy process to restructure her obligations. Further, it is entirely

disingenuous for Belfor to claim no knowledge of the liabilities to PNC Bank.

PNC Bank intervened in the lawsuit against Creative Steps because of PNC’s

mortgage on the real property which Belfor sought to foreclose a construction lien.

See PNC’s Motion for Intervention, attached as Exhibit F.





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B.

Belfor does not have a valid claim against the Debtor.

Belfor’s basic assumption in its Motion is that it is a creditor of the Debtor

who has been treated unfairly. But Belfor is not even a creditor of Ms. Fessler. In

fact, any obligations to Belfor are clearly marked as “disputed” on Schedule F

(Docket No. 11, page 11). Ms. Fessler continues to be attacked by Belfor for a

contractual obligation of Creative Steps to which she is not a party and for

collection of a judgment to which she is not a party.

In addition, the Creative Steps Judgment makes no factual findings

whatsoever, stating that summary disposition had been previously entered “on all

counts”. See Creative Steps Judgment, attached as Exhibit G and the prior Order

for Summary Disposition, attached as Exhibit H. As indicated above and

described in Exhibit H, the Creative Steps Judgment was entered due to attorney

error, as the attorney representing Creative Steps failed to file affirmative

defenses, unknown to Ms. Fessler.

Ms. Fessler strongly contests that any obligation is owed to Belfor, by

Creative Steps or herself. As described in detail in the Affidavit attached as

Exhibit A, Ms. Fessler contends that Belfor was overpaid for its services and that

Ms. Fessler’s challenges to Belfor’s improper billing is the cause of Belfor’s

vindictive and unrelenting actions. As there was no trial in the case against

Creative Steps, judgment was entered truly on attorney error (failure to file

affirmative defenses), and absolute no factual findings were made by the State

Court, these issues have never been brought to light. In consideration that there



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are ample defenses to Belfor’s claims, both factually and legally, Ms. Fessler must

be afforded the opportunity to defend these claims.

While the finding against Creative Steps has been reduced to judgment, Ms.

Fessler is allowed the opportunity to litigate this dispute before a judgment in

excess of $140,000 is simply “deemed” applicable against a woman who struggles

to make ends meet for herself and her grandchildren, whom she has adopted as her

own rather than seen lost to a foster home. This is truly the case of the honest but

unfortunate debtor.

Belfor should not be allowed to have this Chapter 13 case dismissed based

solely on its hopes for an allowed claim against Ms. Fessler.


CHARLES J. TAUNT & ASSOCIATES, PLLC





/s/ Erika D. Hart
Attorney for Debtor
700 East Maple Road, Second Floor





Birmingham, MI 48009













Dated: August 10, 2011


















(248) 644-7800
[email protected]
(P67457)







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EXHIBIT A

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UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

In re:

Marilyn Fessler,










Debtor.
______________________________/





















Case No. 11-53376
Chapter 13
Honorable Steven W. Rhodes


AFFIDAVIT OF MARILYN FESSLER IN SUPPORT OF HER

OBJECTION TO BELFOR’S MOTION TO DISMISS

PURSUANT TO 11 U.S.C. §1307



Marilyn Fessler, being sworn states:


1.

I make this affidavit on personal knowledge.

2.

3.

If sworn as a witness, I can competently testify as to the fact stated herein.

In 2007, there was a flood in the day care center operated by

Creative Steps Learning Centers, Inc. (“Creative Steps”).

4.

Belfor USA Group, Inc. (“Beflor”) was hired by Creative Steps to

repair the damage and, to this day, the repairs remain unfinished.

5.

The entire contents of the day care were damaged by the flood.

Those items which were not destroyed by the water were so damaged and covered

in mold that they could not be used in the day care again for safety reasons.

6.

Creative Steps leased new equipment (educational, toys, tables, etc)

from my daughter, Elizabeth Smith, in order to continue operations. Exhibit B to

the Objection is a true and accurate copy of the 2007 lease between Creative Steps

and Elizabeth Smith.

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7.

Other than the pending motion to dismiss my Chapter 13 case and

the motion for contempt which was pending in Oakland County Circuit Court, I

have never been named as a party to any lawsuit filed by Belfor.

8.

Although I understand that Belfor obtained a judgment against

Creative Steps in Oakland County Circuit Court, I believe that Belfor is not

entitled to any funds or judgment against Creative Steps, myself or anyone else

regarding repairing the property at issue. I believe that Belfor overcharged for the

services it provided and I personally have never had the opportunity to challenge

Belfor on its claims. I would like the chance to defend the claims against me.

9.

Specifically, the contract between Belfor and Creative Steps allowed

direct payment of contractors other than Belfor from the insurance proceeds. A

copy of the Work Authorization is attached as Exhibit I. The requirement to

transfer all rights in the insurance policy proceeds was removed from the Work

Authorization and initialed by both parties. Exhibit I.

10.

Belfor did not complete

its obligations under

the Work

Authorization. Belfor did not repair the second floor of the building, where most

of the damage was and as they were required to. In addition, Belfor’s billing to

the adjuster included the second floor, which they did not complete. I believe they

charged for items which were not installed.

11.

Nine (9) months after work on repairing the property began, Creative

Steps received a bill from Belfor with details in dollar amounts. After review, it

was clear to me (and an inspector) that the bill included charges for items which

were not installed. For example, $12,000 was charged for vinyl dry wall, when

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normal dry wall was installed at a cost of $900. Belfor charged $7,000 for

“cleaning” which was done by Creative Steps staff. Beflor charged over $12,000

for an architect for a staircase to the second floor, which was never installed.

12.

According to the audit of Belfor’s bill, Creative Steps paid over

$106,000 to Belfor, which was an overpayment by at least $64,000. I believe I

should have an opportunity to raise these issues (and more) in response to the

claims against me.

13.

In 2010, I decided to change the structure of my child care facility. I

wanted to proceed with a Christian based Montessori program and also to offer

additional services like teacher training and senior aid. The 2010 school year

ended

in May 2010 and

therefore

I organized Cedarbank

Investments

(“Cedarbank”) in June 2010 in order to start this new endeavor. Cedarbank is a

different company and a different program from Creative Steps, its a Christian

focused Montessori academy that also offers the teacher training and senior aid

mentioned above.

14.

Beginning in June 2010, contracts were executed between Cedarbank

and parents, a lease was drafted for use of the equipment from Ms. Smith, and

Cedarbank executed a lease for use of the building (the prior lease between

Creative Steps and M&E Holdings, LLC had expired in 2010 as well).

15.

Cedarbank is a complete separate and different entity which uses

nothing of Creative Steps and has a different ownership structure from Creative

Steps.

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16.

Like most childcare facilities, Cedarbank’s operations are locked

down during the day to protect children from strangers. Upon the arrival of court

officers to enforce the Creative Steps judgment, I correctly informed them that

there was no property inside owned by Creative Steps (as all property was being

leased from my daughter) and directed the officer to the damaged equipment

remaining in the outbuilding on the property. The damaged equipment consists

mostly of moldy toys and damaged educational items, but this is all that is left of

Creative Steps.

17.

I informed the court officers that they could return when children

were no longer present, but that not only did they not have a basis for entry onto

the premises, but that I could not allow them into the premises. I informed them

that the operations were not that of Creative Steps, but that of Cedarbank.

18.

Cedarbank also has its own licensing separate from Creative Steps

and Cedarbank had to go through a separate process with the State of Michigan to

obtain this licensing.

19.

I have other liabilities other than Belfor’s alleged claim, including a

potential liability to PNC Bank relating to a deficiency on the promissory note and

mortgage on the real property where Cedarbank operates. This liability may be in

excess of $100,000, but I listed the debt as “unknown” because I don’t the know

the value of the real estate.

20.

I believe that Belfor is attacking me personally in an effort to silence

me regarding Belfor’s improper billing practices, as I have reported these issues to

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the Attorney General, the Office of Licensing, the Insurance Commissioner, and

several television networks.

21.

I make less than $2,000 per month and I am struggling to keep my

finances in order. I am trying to support my family, which includes grandchildren

whom I have adopted so I would not lose them to foster care.

22.

I filed my bankruptcy in good faith, that I could use this process in

order to finally obtain some relief and an opportunity to reorganize my debts

through Chapter 13.




























/s/Marilyn Fessler
Marilyn Fessler
















Dated: August 10, 2011

Subscribed and sworn to before me this
___day of August 2011

____________________________,
Notary Public, State of Michigan,
County of ________, acting in the
County of ________, My Commission
Expires: ________________




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EXHIBIT B

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EXHIBIT C

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EXHIBIT D



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EXHIBIT E

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EXHIBIT F







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EXHIBIT G

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EXHIBIT H

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EXHIBIT I

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