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In re Possession and Control of the Commissioner of Banks and Real Estate of Independent Trust Corporation

December 28, 2001


(The Commissioner of Banks and Real Estate; PriceWaterhouseCoopers, LLP, as Receiver of Independent Trust Corporation, a/k/a Intrust, and Millennium Trust Company, LLC, as Successor Trustee, Appellees; J. Phillip O'Brien, Intrust Account Holder, et al., Parties in Interest, Appellants). Appeal from the Circuit Court of Cook County. Honorable Sidney A. Jones III Sophia R. Hall, Judges Presiding.

The opinion of the court was delivered by: Justice Gordon


Appellants, numerous groups of approximately 1,200 non-cash- asset account holders, *fn1 appeal an order of the circuit court of Cook County allocating a $68.1 million cash shortage from trust funds deposited for investment with Independent Trust Corporation (Intrust). The trial court allocated the shortage among all account holders, even those whose assets were non-cash at the time Intrust was placed in receivership because virtually all cash deposited with Intrust, including that used to acquire non-cash assets, was commingled in a single, common account. The non-cash account holders argue that only the cash account holders should bear the burden of the $68.1 million loss. Appellants also appeal the trial court's order authorizing the receiver to charge its fees and expenses to the individual trust accounts via a levy on the accounts. We disagree with appellants that the trial court erred in allocating the shortage to all account holders. However, we do agree with appellants that the trial court erred in charging all of the receiver's fees and expenses to the individual accounts and remand on this issue.


Intrust was an Illinois corporate fiduciary organized under the Corporate Fiduciary Act (Act) (205 ILCS 620/1-1 et seq. (West 1998)) and was regulated by the Illinois Commissioner of Banks and Real Estate (Commissioner). Intrust served as the custodian for various investment trust assets, including individual retirement accounts (IRAs), qualified benefit plans, Starker trusts, personal trusts, and Illinois land trusts, that its customers (appellants and others who have not appealed) placed in its custody. The assets were managed either by the customers or their investment advisors in a wide variety of investments, including cash, money market funds, stocks, mutual funds, limited partnerships, life insurance policies, tax lien certificates, and promissory notes. Intrust did not exercise discretion in investing assets deposited with it although, according to appellants, Intrust did manage money left in its "cash management program." Those customers who traded in commodity futures contracts and options, who utilized the cash management program, agreed to leave 30% of the principal balance of their accounts on deposit with Intrust in the form of cash as a safety net for margin calls. *fn2

As of April 14, 2000, Intrust had approximately 17,000 customers and acted as custodian for approximately $1.84 billion in assets. Intrust's accounts were extremely active, averaging 200,000 transactions per week. These transactions included both the deposit of cash and non-cash assets into trust accounts as well as the purchase and sale of securities and other non-cash assets. Because of the volume of transactions conducted, Intrust held large amounts of cash on a daily basis. Intrust held all cash in a single, commingled account designated as its money market cash trust fund (commingled account). The cash of virtually every account holder passed through the commingled account, albeit perhaps only briefly, at some time. Specifically, cash newly deposited with Intrust *fn3 was placed in the commingled account before an account holder's investment instructions were carried out. From there, depending on the account holder's instructions, the cash would remain in the commingled account, be transferred to another depository institution, be transferred to an escrow account at Intercounty Title Company (Intercounty), or used to purchase specific non-cash assets. Money was deposited into the commingled account when another depository institution transferred money back to Intrust, when Intercounty transferred money back to Intrust, when a non-cash asset was liquidated in connection with a new investment purchase (if another non-cash asset was purchased, the money would then again leave the commingled account) or to generate cash to pay custodial fees and investment advisory fees, or when, in an effort to close an account, a non-cash asset was liquidated. Most, if not all, purchases and sales of non-cash assets required cash or produced cash, which passed through the commingled account. Intrust used computerized accounting software, which, according to PriceWaterhouseCoopers, LLP, the receiver appointed upon commencement of the receivership, was limited and out of date, to keep track of account records. According to the receiver, this software was unable to recreate historical account transactions and account balances on any given day.

From December 1990 through April 23, 1999, Intrust transferred substantial portions of cash from the commingled account to the custody of Intercounty on approximately 41 occasions, *fn4 which in turn, commingled the money it received from Intrust with funds of its own customers. Intrust accounted for the amounts held at Intercounty in the commingled account ledger. Although some of the money transferred to Intercounty was returned to Intrust's custody and deposited into the commingled account, a majority of the funds were never returned. *fn5

The Commissioner directed Intrust to re-establish control over the funds transferred to Intercounty and because Intrust failed to comply, on April 14, 2000, the Commissioner seized control of Intrust pursuant to the Act, by letter appointed PriceWaterhouseCoopers, LLP, as receiver, and commenced an action for dissolution and liquidation of Intrust through receivership in the circuit court of Cook County via a verified complaint.

On April 17, all 17,000 account holders were sent a letter by first class mail informing them that cash was missing from Intrust and that the company was in liquidation. The letter advised account holders that the receiver was undertaking an investigation and would determine how the cash shortage would affect their accounts. It also informed account holders that all accounts were frozen. Lastly, the letter stated that due to the substantial cost of sending written communications to all account holders, such communications would be made with the account statements or account holders could obtain up-to-date information on Intrust's website.

In response to the receiver's motion to set a hearing on the allocation and direct the method of notice to provide to account holders, the trial court entered an order setting a hearing and approving the form of the notice. The order contained identical information as that to be embodied in the notice form and, as such, need not be detailed. Both the order itself and the notice form were posted on Intrust's website. In addition, the receiver mailed the notice, by first class mail, to all 17,000 account holders. The notice stated that the receiver would be filing its recommendation with respect to the proposed allocation by June 23 and that a hearing was set for July 28 following.

According to the notice, at the allocation hearing, the trial court would consider the receiver's recommendation, hear evidence, and issue a determination as to the method of allocation, which determination would be binding upon the accounts holders and may affect their rights to assets in their accounts. The notice advised account holders that the recommendation would be posted on Intrust's website and that those account holders who did not have access to the Internet were to so advise the receiver, in writing, and if they desired a copy of the recommendation, to request a copy from the receiver. The receiver would then mail its recommendation by first class mail to those account holders. Account holders were informed to file any objections to the receiver's recommendation by July 14.

The receiver conducted an examination and filed its initial recommendation with the court, revealing that as of April 14, Intrust held $1.74 billion worth of non-cash assets for its account holders, all of which were located and fully accounted for. Also, at this time, Intrust's books showed that it should be holding $102 or $103 million in cash. However, the receiver was unable to locate approximately $68.1 million, consisting of $51 million transferred to Intercounty and $17 million in interest accruing on that amount. The investigation revealed that these funds were misappropriated by Intercounty over the last 10 years. The receiver instituted litigation against Intercounty on June 1.

The receiver further stated that because Intrust used a single, commingled account in virtually all of its transactions, including those between it and Intercounty, its financial records were incomplete, its accounting software was not able to create historical account information, many accounts holders departed prior to the time of the receivership, and the tremendous number of transactions conducted by Intrust, it was impossible to ascertain which account holders' funds were deposited or withdrawn from Intercounty on any particular date and, therefore, which specific accounts were affected by the misappropriation, i.e., it could not trace the missing funds to any specific accounts.

After setting forth alternative possible allocation formulas, the receiver recommended to allocate the shortage to all accounts, not just those accounts containing cash, because of the inability to actually trace the missing funds to any specific accounts and to use the entire balance of the accounts, rather than the cash only balance of the accounts. The receiver recommended excluding the following accounts: (1) accounts opened after April 23, 1999 (the date of the last transfer to Intercounty); (2) land trusts; (3) bookkeeping accounts; and (4) accounts closed prior to April 14, 2000 (the commencement date of the receivership). The receiver recommended using the April 30, 2000, account balances as the date of valuation, backing out withdrawals and deposits made between April 15 and April 30. Potential sources for recovery of the loss were identified as including insurance coverage and litigation against Intercounty. Thereafter, approximately 300 account holders filed objections to the receiver's recommendation, alleging multifaceted theories and arguments.

Subsequently, the court held a hearing on the receiver's recommendation and many accounts holders (the exact number is not disclosed by the record) were represented by counsel and made arguments to the court, offering alternative allocation methods. At the conclusion of the hearing, the trial court stated that it would largely follow the receiver's recommendation, but it would entertain motions to exclude accounts whose holders could demonstrate their funds were not at risk of being included in the money transferred to Intercounty. Specifically, the court would consider excluding an account from the allocation process if it satisfied one of the following: "(1) the account never contained cash; (2) the account balance on April 23, 1999, was zero or de minimus; [or] (3) substantially all cash in the account was not subject to risk." Notice of this decision was posted on Intrust's website, which notice the court found sufficient, reasonable, and adequate. In response to the trial court's decision, over the course of the next few months, a multitude of account holders filed motions to exclude their accounts from the allocation.

After an initial hearing on the receiver's proposed allocation at which 24 attorneys were present representing numerous groups of account holders who were permitted to make extensive comments and suggested revisions with respect to matters raised by the receiver's proposed order, the court first found that the notice and opportunity for hearings available to account holders were reasonable and adequate. The court then ordered that the following accounts would be excluded from the allocation process: (1) accounts opened after April 23, 1999; (2) Illinois land trusts; (3) bookkeeping accounts; and (4) accounts which contained double-counted assets. The court reiterated that it would consider excluding those accounts specifically identified in its prior order and that account holders seeking an exclusion should file motions to exclude. In addition, because approximately 5,000 motions to exclude had been filed, many of which presented similar factual or legal issues, the court ordered the receiver to identify and categorize the motions, to choose as many motions as necessary out of each group to fully detail the common issue presented, to identify these chosen motions as exemplar motions, and post copies of them on Intrust's website. Lastly, at the conclusion of this hearing, the trial court denied certain objections filed by account holders and requests to surrender particular non-cash assets, finding that because deposits with Intrust were commingled in a single fund, allocation would be made among all accounts.

Thereafter, the trial court held a hearing on the receiver's motion for authorization of fees. The receiver filed a motion seeking to charge the individual account holders (as opposed to Intrust's assets) fees and expenses to defray the expenses of continued administration of the receivership and winding up of the receivership estate. The motion described the activities the receiver had undertaken and the activities it still needed to undertake. The receiver estimated that it would incur expenses of $500,000 per month to carry out its activities. Prior to the motion, the Commissioner preapproved fees at a blended rate of $240 per hour for accountants and $325 per hour for attorneys. Several hundred account holders opposed this motion. *fn6 At the hearing, the court heard objections and arguments from account holders after which it overruled the account holders' objections and authorized the receiver to charge a sliding scale fee across the board to all account holders. *fn7

A second hearing was conducted with respect to the receiver's proposed order of allocation. At this time, the court also heard objections to the proposed process of hearing exemplar motions to exclude. Over 50 attorneys were present representing account holders. The trial court thereafter entered an order stating that it would hear exemplar motions to exclude during the week of September 25. Despite the court's ruling, additional account holders subsequently filed objections to the exemplar process, which the trial court ultimately overruled following an additional hearing on the objections.

During the course of the proceedings, two groups of account holders served interrogatories and requests to produce upon the receiver. Account holders sought detailed information with respect to each and every transfer from Intrust to Intercounty, information with respect to all bank accounts maintained by Intrust, and bank statements from each bank account during the misappropriation period. Because the receiver did not answer discovery, they filed a motion to compel. It was the receiver's position that discovery was neither necessary nor appropriate, particularly since the discovery was not directed at any specific account but, rather, was directed broadly at Intrust's business as a whole. According to the receiver, all accounts held by Intrust were at risk and how money moved from one place to another was irrelevant. At least 16 attorneys were present at the hearing on the motion representing account holders. The motion was subsequently denied.

During the week of September 25, the trial court conducted hearings on the exemplar motions to exclude. Following the hearings, the trial court granted some of the motions to exclude and denied others. Generally, the trial court granted exclusions for those funds deposited into an account subsequent to April 23, 1999, *fn8 including any deposits made after 12:20 p.m.--the time of the last transfer to Intercounty, trustee-to-trustee transfers, accounts that never contained cash, accounts with a zero balance as of April 23, 1999, and bookkeeping accounts. The court also excluded any account opened subsequent to April 23, 1999, but only if the account was not funded with proceeds of assets held at Intrust prior to April 23.

The court denied exclusions where account holders argued that they could show their funds went into the account one day and out the next, accounts holders who could show that their accounts contained no cash on the misappropriation dates, accounts holders who argued that their funds were not deposited until after a substantial amount of money had already been misappropriated, account holders who argued that they opened their accounts only a short time prior to April 23, 1999, and account holders who argued that the misappropriation should be allocated only to the cash balance of accounts, not to the entire balance. The basis for each of these denials was the trial court's finding that if money was deposited at Intrust, it was commingled, "whether one week, one day, one hour, or one minute" and, therefore, subject to risk of loss to misappropriation.

Subsequent to these rulings, at least one motion for reconsideration was filed and numerous notices of appeal were filed. In addition, because not all motions to exclude were determined during the week of September 25, additional hearings were held and appropriate additional orders entered, excluding or including specific accounts.

Thereafter, the trial court approved a purchase and assumption agreement entered into between Intrust and Millennium Trust Company LLC (Millennium) pursuant to which Millennium would take over the trust accounts and most of Intrust's corporate assets. Millennium was to be responsible for implementation and collection of the shortage in accordance with any allocation order entered.

After all motions to exclude had been resolved, the receiver filed a motion for entry of a final order on allocation, to which a copy of the proposed final order was attached. The receiver also filed its report on calculation of the allocation percentage and informed the court and the parties of its intent to use the March 1999 account balances for valuation based on the trial court's prior exclusion of all accounts opened after April 23, 1999. Account holders thereafter filed objections to the proposed final order.

On February 26, 2000, for the first time, account holders filed a motion to continue consideration of entry of the final order until issues related to a potential conflict of interest of the receiver's attorney were addressed, seeking a continuance until they had an opportunity to pursue certain limited discovery with respect to the conflict of interest. The basis of the motion was centered on the fact that the receiver had originally recommended allocating the shortage only to cash account holders, but later had a "change of heart" and recommended allocating the shortage to all account holders. According to the account holders, the receiver's attorneys had long, close ties to the commodity futures industry and the firm's approach to dealing with the allocation may have been influenced by that relationship. Even more specifically, the motion contended that the law firm represented defendants in a federal lawsuit who were owners, directors, or officers of commodity futures brokers and that some of these individuals may have customers who had accounts at Intrust through which they conducted futures trading. It was the account holders' position that the firm could not neutrally represent the receiver, as it was required to do, because it may be representing other parties with substantial economic interests in the outcome of the allocation process, namely, commodity futures brokers who stood to have their customers lose substantial amounts of investment monies due to the allocation. Thus, to the extent that the firm had a direct or indirect relationship with brokers who maintained or whose clients maintained accounts at Intrust, the firm should be disqualified. Consistent with the foregoing contention, a second group of account holders also filed a motion requesting a hearing on the receiver's attorney's potential conflict of interest. These motions were denied following a hearing.

The trial court conducted at least two hearings on the proposed final order and on March 1, 2000, it entered the final order, which identified those accounts that would be excluded from the allocation. The court specifically found that the notice and opportunity to be heard afforded to account holders was reasonable, adequate, and sufficient. In addition, the trial court found it had jurisdiction and authority, pursuant to the Act, to allocate the shortage. The court determined that the allocation was to be made among all accounts, with the exception of those it had excluded.

To determine the amounts to which the 8.69 allocation percentage was to be applied, the reference date upon which the allocation should be premised was determined to be March 31, 1999. If the balance for that date was unavailable, the reference date was moved back to December 1998. If the balances for either of these dates was unavailable, the reference date for allocation was April 30, 2000. Lastly, if none of these balances were available, alternative valuation dates were detailed. Subsequent to entry of the final order, certain account holders filed motions to reconsider while other account holders filed notices of appeal. The motions to reconsider were denied. Allocation letters and statements were mailed to all account holders on May 1. Subsequently, we denied appellants' motions to stay the trial court proceedings pending resolution of the appeals.

On August 24, Millennium informed the trial court that the $68.1 million shortage had been collected. It requested that the trial court conduct a hearing to release the restrictions on accounts. *fn9 On September 12, the supreme court denied appellants' motions for direct appeal and appellants' motions to stay. However, pursuant to a supervisory order, the supreme court directed us to consider this appeal on an expedited basis.

On October 29, 2001, we entered a brief stay to November 19, 2001 and subsequently extended that stay to November 29, 2001.


Two general briefs were filed: one by the O'Brien group of account holders and a second by the Bommer group of account holders. *fn10 Three special briefs were filed addressing specific types of accounts: one by the Abbott group, one by the Agabedis group, and one by Norman and Shirley Bard, pro se.

Each will be addressed and considered.

I. Jurisdiction and Due Process

The Bommer appellants contend that the trial court lacked jurisdiction to allocate the shortage. They apparently attack both subject matter and personal jurisdiction, although their arguments are amorphous in their organization and characterization of the specific jurisdictional issues which they apparently sought to raise. They generally contend that the issue of allocation is not properly before the trial court because the Act gives the court no authority or power to allocate. According to appellants, other traditional proceedings had to be undertaken, in particular, procedures under the Code of Civil Procedure (735 ILCS 5/1-101 et seq. (West 1998)), that were not taken. Specifically, appellants contend that the receiver was required to file a complaint against each of the 17,000 account holders and serve summons upon them. In a related argument, appellants argue that they were not afforded due process guarantees because the notice and opportunity to be heard were insufficient. Again, appellants argue that due process requires a complaint and summons against them individually as well as additional hearings. We disagree with appellants that the circuit court lacked either subject matter jurisdiction or personal jurisdiction and further disagree that they were not provided with constitutional due process.

A. Subject Matter Jurisdiction

The crux of appellants' argument appears to be that, other than the fact the Act does not authorize allocation, the attempt to intrude into their individual accounts is an intrusion into their individual property rights and, therefore, for the circuit court to have jurisdiction over their accounts, a complaint must be filed against each account holder individually.

Subject matter jurisdiction is the power of the court to decide a class of cases to which the case in question belongs. 3 R. Michael, Illinois Practice §2.1, at 10 (1989); In re Estate of Gebis, 186 Ill. 2d 188, 192, 710 N.E.2d 385 (1999). The determination is made based on the nature of the case and the relief sought. 3 R. Michael, Illinois Practice §2.1, at 10 (1989); Gebis, 186 Ill. 2d at 192. Illinois circuit courts are courts of general jurisdiction and have jurisdiction over all justiciable controversies except for three situations not relevant here. 3 R. Michael, Illinois Practice §2.1, at 11 (1989); Ill. Const. 1970, art VI, §9. With respect to any particular case, subject matter jurisdiction is the power of the court to hear and determine the controversy presented to it. City of Chicago v. Chicago Board of Education, 277 Ill. App. 3d 250, 261, 660 N.E.2d 74 (1995). "The pleadings of the parties frame the issues in controversy and circumscribe the relief that the court is empowered to order." City of Chicago, 277 Ill. App. 3d at 261.

First, we find that the complaint filed by the Commissioner brought the issue of allocation before the trial court. The complaint for dissolution of Intrust alleged that Intrust did not have control over a significant amount of assets deposited with other entities for the benefit of the beneficiaries and that Intrust did not have sufficient capital to replace those beneficial assets and, therefore, was unable to return such assets. The Commissioner sought the following relief: (1) invocation of the trial court's jurisdiction pursuant to section 6-9 of the Act to adjudicate the validity of claims against Intrust; (2) invocation of jurisdiction pursuant to sections 6-4 and 6-11 of the Act to consider and adjudicate petitions for aid, relief, or authority; and (3) such other relief as was just and equitable.

Although the Commissioner did not specifically mention the term "allocation of cash shortage" or seek specific authority to allocate such shortage, we find his complaint brought the deficiency, i.e., the cash shortage, forth as an issue in controversy. The complaint explicitly stated that Intrust had insufficient money to return the fiduciary assets to their respective beneficiaries. As such, the court would be required to determine how to deal with the deficiency and, ultimately, if Intrust had been dissolved, how to equitably distribute the money remaining at Intrust, e.g., allocation of the shortage. Such determination would fall under the relief sought by the Commissioner either in the form of a petition for relief or as "such other relief as is just and equitable." Such a determination would necessitate the exercise of the court's power over the individual fiduciary accounts to facilitate the relief requested.

Moreover, we find that the Act itself provides the trial court with authority over individual accounts and the power to allocate any cash shortage. The Act is the foundation for initiating and conducting the liquidation proceeding and covers any issues incident thereto. According to the Act, "[t]he proceedings pursuant to this Article 6 [entitled 'Receiver and Involuntary Liquidation'] shall be the exclusive remedy and the only proceedings commenced in any court for the dissolution or the winding up of the affairs [of a corporate fiduciary] or for the appointment of a receiver for any corporate fiduciary." 205 ILCS 620/6-1 (West 1998). The Commissioner has the power when he deems it necessary to take control of the corporate fiduciary, its assets and the assets held for its beneficiaries to examine, reorganize, and liquidate. 205 ILCS 620/6-2(a)(4) (West 1998).

The Act provides that the Commissioner has the power to continue or discontinue the corporate fiduciary (205 ILCS 620/6-5(1) (West 1998)), restore the corporate fiduciary to its board of directors (205 ILCS 620/6-5(10) (West 1998)), reorganize the corporate fiduciary (205 ILCS 620/6-5(11) (West 1998)), or liquidate the corporate fiduciary (205 ILCS 620/6-5(12) (West 1998)). If the Commissioner determines that there is no possibility of reorganization, he shall file a complaint for dissolution or winding up of the affairs of the corporate fiduciary and for appointment of a receiver or such other proceedings as are appropriate under the circumstances of the particular case. 205 ILCS 620/6-4(a) (West 1998). See also 205 ILCS 620/6-9 (West 1998) (the Commissioner is to appoint a receiver if it determines that reorganization is not possible and that the company should be liquidated through receivership). Once such a complaint is filed, "[t]he court where the cause is docketed shall be vested with jurisdiction to hear and determine all issues and matters pertaining to or connected with the Commissioner's possession and control of such corporate fiduciary as provided in this Act, and such further issues and matters pertaining to or connected with the Commissioner's possession and control as may be submitted to such court for its adjudication by the Commissioner." 205 ILCS 620/6-4(a) (West 1998). Subsequent to its appointment, the receiver is given the power, inter alia, to cause all assets of the beneficiaries to be registered in its name or that of its nominee. 205 ILCS 620/6-10(12) (West 1998).

Section 6-1 clearly provides that Article 6 of the Act is the exclusive remedy for dissolution or winding up of a corporate fiduciary and, as such, appellants' contention that the receiver was required to proceed by way of separate complaints to join the individual account holders under the Code of Civil Procedure is not persuasive. Moreover, section 6-4 provides the court with authority over all issues and matters pertaining to or in connection with the Commissioner's possession as well as to any other matters submitted to it. As such, the trial court is given broad discretion to deal with any issue attendant to the receivership. In order to liquidate or wind up the affairs of a corporate fiduciary, the assets of the company and the assets of the beneficiaries must be marshaled.

Thus, the legislature has provided that a single court is to exclusively oversee all issues with respect to a liquidation. It recognizes that it is essential for orderly disposition of the proceeding that the title, custody, and control of the assets be placed in a single management entity under the supervision of one court. See 205 ILCS 620/6-1 (West 1998). Were the receiver required to institute separate proceedings against each account holder it would be in direct contradiction to the express provisions of the Act that exclusive jurisdiction lies thereunder. It would also unnecessarily and wastefully dissipate the already limited funds of Intrust, particularly in light of the fact that 17,000 complaints would have to be filed. See People ex rel. Barrett v. West Side Trust & Savings Bank of Chicago, 362 Ill. 607, 617-18, 1 N.E.2d 81 (1936) (object of liquidation--speedy termination with a minimum of expenses--would be defeated if interested parties were compelled to resort to a different tribunal to litigate matters related to the liquidation proceeding). Accordingly, appellants' argument must be rejected. The determination of all questions in one court promotes a fair, orderly, efficient, and economical proceeding to all interested parties. *fn11

Moreover, arguably, the Commissioner (or receiver) has power over the individual fiduciary accounts under two additional provisions of the Act. By virtue of their power over the fiduciary accounts, the trial court necessarily obtains jurisdiction over them.

Pursuant to section 6-2, if the Commissioner finds that the capital of a corporate fiduciary is impaired or in an unsound condition, the Commissioner, after notice to the corporate fiduciary's board and failure of the board to rectify the situation, is authorized to "take possession and control of the corporate fiduciary, its assets, and assets held for beneficiaries of its fiduciary obligations, as in this Act provided for the purpose of examination, reorganization or liquidation through receivership." 205 ILCS 620/6-2 (West 1998). This section gives the Commissioner authority and power over both the corporate accounts and the fiduciary accounts. Under this section, the Commissioner has the power to examine, reorganize, or liquidate not only the corporate fiduciary itself, but also the individual fiduciary accounts in the receivership proceedings. Accordingly, the Commissioner has power to reach the individual fiduciary accounts and in the course of the receivership proceedings can allocate any shortage to such accounts either in effectuating a reorganization or liquidation of such accounts and the corporate fiduciary.

Similarly, pursuant to section 6-5, when the Commissioner takes possession and control of a corporate fiduciary and its assets, he is vested with the "power to stop or limit the payment of its obligations." 205 ILCS 620/6-5(2) (West 1998). With respect to the fiduciary accounts, Intrust has a duty to ensure that the total value of assets held by a particular account holder exist in the account. Where there is any deficiency or shortage, Intrust has a duty to restore that deficiency from its general assets. As a result, any claims of the account holders are obligations owed by Intrust as a debtor. Pursuant to subsection 6-5(2), upon the Commissioner's taking possession, it can limit these obligations. In other words, if the assets in the accounts are deficient and the corporate assets are insufficient to satisfy the total amounts claimed held in the fiduciary accounts, the Commissioner can, in an effort to disburse and liquidate the corporate fiduciary, limit the obligation or allocate any shortage among the fiduciary accounts. Accordingly, the Commissioner has power to reach individual fiduciary accounts under his general management powers. The court is granted authority pursuant to the Act to oversee these proceedings and, therefore, has power to allocate as well.

Generally, the purpose of a liquidation or winding up of a corporation is to distribute the assets remaining with the corporation to those entities or individuals entitled to receive them. Fleckner v. President, Directors, 21 U.S. (8 Wheat.) 338, 362, 5 L. Ed. 631, 636 (1823); In re 203 North LaSalle Street Ltd. Partnership, 190 B.R. 567, 584 (N.D. Ill. 1995), rev'd on other grounds, 526 U.S. 434, 143 L. Ed. 2d 607, 119 S. Ct. 1141 (1999). In other words, the assets of the corporation must be marshaled and reduced to cash, all accounts must be settled, and any surplus or loss must be divided. See Black's Law Dictionary 930 (6th ed. 1990); Fleckner, 21 U.S. (8 Wheat.) at 362, 5 L. Ed. at 637; United States v. Metcalf, 131 F.2d 677, 679 (9th Cir. 1942). To do so, the court (or appropriate party under the court's supervision) must ascertain what assets exist including both the assets of the corporate fiduciary and the assets held for the benefit of account holders. Metcalf, 131 F.2d at 679. The court must also ascertain what assets are missing, if any, and from what source, if possible. After determining the total amount of assets available for distribution, the court must determine who is entitled to distribution and in what amounts. Metcalf, 131 F.2d at 679; Farmers State Bank & Trust Co. v. Brady, 137 Tex. 39, 43, 152 S.W.2d 729, 732 (1941).

If the assets available are insufficient to satisfy all those entitled to a disbursement, the court must allocate any shortage among the beneficiaries to ascertain who is entitled to what amount once the remaining assets are converted to cash for distribution. Clearly, these determinations, evaluations, and assessments are issues and matters relevant to the Commissioner's possession. As such, in liquidation proceedings, if the assets are insufficient to satisfy all trust beneficiaries, the trial court must necessarily have the authority under established equitable principles to provide for pro rata distribution in an amount less than the amount the corporate fiduciary was supposed to be holding for them, among them, i.e., it must allocate the shortage of total assets available for distribution on an equitable basis. If the trial court lacked such authority, it could not accomplish the goal of the liquidation as it would not be able to settle the corporation's accounts and dissolve it. See generally Woodhouse v. Crandall, 197 Ill. 104, 64 N.E. 292 (1902).

In the instant case, instead of liquidating Intrust outright, the court (and receiver) made an attempt to preserve the accounts as fiduciary accounts, albeit under different ownership. These accounts were not dissolved and, thus, no actual pro rata disbursement was made to beneficiaries. Instead, the focus was on a pro rata allocation without the actual liquidation of those accounts. In contrast to a comprehensive disbursement situation, the trial court here had to allocate the missing funds among various accounts. The determination of this issue was a matter pertaining to the Commissioner's possession of the corporate fiduciary and the receivership. As such, in determining how to resolve the issue of the shortage, the trial court must necessarily have authority to allocate it. This power to allocate is inherent in the court's right under section 6-4 to oversee the liquidation proceeding initiated by the Commissioner and implemented by the receiver under the Act. Since the trial court had subject matter jurisdiction, the only question now is whether the mandates of due process were satisfied.

B. Personal Jurisdiction/In Rem Jurisdiction

The Bommer group contends that due process considerations require personal service of summons and process upon each account holder. We do not agree. *fn12 Personal jurisdiction pertains to the authority of the court to litigate in reference to a particular defendant and to determine the rights and duties of that defendant. 3 R. Michael, Illinois Practice §2.1, at 10 (1989). It is black letter law that the alternative to personal jurisdiction is in rem jurisdiction or quasi in rem jurisdiction. 3 R. Michael, Illinois Practice §3.1, at 23 (1989); Poplar Grove State Bank v. Powers, 218 Ill. App. 3d 509, 515, 578 N.E.2d 588 (1991). This form of jurisdiction is concerned with the relationship between defendant and the state with respect to specific property held by the defendant. Personal jurisdiction over a party is not required where the court is given jurisdiction over the property against which a judgment is sought to be enforced. 3 R. Michael, Illinois Practice §7.1, at 79 (1989); Poplar Grove State Bank, 218 Ill. App. 3d at 515. In rem jurisdiction exists when a cause of action is related to the property that is subject to the jurisdiction of the court. Quasi in rem jurisdiction exists when the property of defendant is subject to the jurisdiction of the court but the cause of action does not directly relate to that property. 3 R. Michael, Illinois Practice §7.1, at 78 (1989). All forms of non-subject-matter jurisdiction require: (1) a constitutional basis to assert jurisdiction (Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565 (1878)) and (2) adequate notice to defendant (McDonald v. Mabee, 243 U.S. 90, 61 L. Ed. 608, 37 S. Ct. 343 (1917)).

Initially, appellants have waived the right to contest personal jurisdiction, service of process, and the court's in rem jurisdiction. It is again Hornbook law that to challenge the court's jurisdiction over person or property, a party must file a special and limited appearance and must limit his participation solely to the jurisdictional challenge. In re Estate of Zoglauer, 229 Ill. App. 3d 394, 397, 593 N.E.2d 93 (1992); Farley v. Blackwood, 56 Ill. App. 3d 1040, 1044, 372 N.E.2d 921 (1978). This special appearance (or motion to dismiss) must be filed prior to filing any other pleading or motion and must be made for the sole purpose of objecting to jurisdiction. 735 ILCS 5/2-301(a) (West 1998); In re Marriage of Snider, 305 Ill. App. 3d 697, 699, 712 N.E.2d 947 (1999). Both requirements are strictly construed. A party who appears generally in an action may not later attack jurisdiction and waives any jurisdictional objection. Blackwood, 56 Ill. App. 3d at 1044. If a party participates in the proceeding on its merits, even after a special appearance has been filed, that party waives the special appearance and jurisdictional challenge when he takes such affirmative action dealing with substantive issues thereby amounting to a general appearance and submitting himself to the jurisdiction of the court. Snider, 305 Ill. App. 3d at 699; In re Marriage of Adler, 271 Ill. App. 3d 469, 474, 648 N.E.2d 953 (1995); Morey Fish Co. v. Rymer Foods, Inc., 240 Ill. App. 3d 61, 67, 608 N.E.2d 74 (1992), rev'd on other grounds, 158 Ill. 2d 179, 632 N.E.2d 1020 (1994); Zoglauer, 229 Ill. App. 3d at 397; Blackwood, 56 Ill. App. 3d at 1044. The rationale for this rule is that a party who contests the authority of the court to hear the matter cannot be deemed to recognize the court's authority to decide any facet of the controversy. 3 R. Michael, Illinois Practice §10.2, at 120 (1989); Snider, 305 Ill. App. 3d at 699.

In the instant case, appellants did not file a special appearance or otherwise challenge the jurisdiction of the trial court. Even assuming they did, appellants nonetheless have waived any right asserted and subjected themselves to the jurisdiction of the court by filing their objections and motions to exclude, seeking the court's substantive resolution of the merits. Appellants clearly argued and sought an adjudication of the merits. As such, they cannot now attack the trial court's jurisdiction or lack of service on them. What appellants essentially did was to intervene de facto without objection to jurisdiction. They became involved in the proceedings to ensure their interests were adequately protected and participated thereafter as parties. Kemp-Golden v. Department of Children & Family Services, 281 Ill. App. 3d 869, 872-73, 667 N.E.2d 688 (1996). Accordingly, appellants have waived any jurisdictional objections.

The right to proceed against the individual accounts under the enabling provisions of the Act may well stem from the court's jurisdiction over the property itself, which provides the court with in rem or quasi in rem jurisdiction.

"An 'action in rem' is a proceeding that takes no cognizance of owner but determines right in specific property against all of the world, equally binding on everyone. [Citation.] It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition of property, without reference to the title of individual claimants' but, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. *** In the strict sense of the term, a proceeding 'in rem' is one which is taken directly against property or one which is brought to enforce a right in the thing itself." Black's Law Dictionary at 713 (5th ed. 1979).

In rem or quasi in rem proceedings do not require personal service of process. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 312, 94 L. Ed. 865, 872, 70 S. Ct. 652, 656 (1950); People ex rel. Hanrahan v. One 1965 Oldsmobile, 52 Ill. 2d 37, 45, 284 N.E.2d 646 (1972), rev'd on other grounds, 409 U.S. 38, 34 L. Ed. 2d. 47, 93 S. Ct. 30 (1972); Bickerdike v. Allen, 157 Ill. 95, 100, 41 N.E. 740 (1895).

Receiverships and liquidations have been held, under Illinois law, to be in rem proceedings. See Blackhawk Heating & Plumbing Co. v. Geeslin, 530 F.2d 154, 158 (7th Cir. 1976); Katin v. Apollo Savings, 460 F.2d 422, 424 (7th Cir. 1971); Federal Savings & Loan Insurance Corp. v. Krueger, 435 F.2d 633, 636 (7th Cir. 1970). See also Pastor v. National Republic Bank of Chicago, 76 Ill. 2d 139, 152, 390 N.E.2d 894 (1979) (holding that New York proceeding in which an insurance company was placed in liquidation was a proceeding in rem and therefore the fact that the plaintiff was not a party to the New York proceeding, nor given an opportunity to be heard, did not deny him due process where the liquidator was permitted to draw against a letter of credit procured by the plaintiff). See also Bartlett v. Cicero Light, Heat & Power Co., 177 Ill. 68, 77, 52 N.E. 339 (1898) (holding that a judgment against a receivership was in the nature of a judgment in rem). It is the disposition of the property held by Intrust, including that property of the individual account holders, whose undisputed situs was in Illinois, that was before the trial court. When initiated, the direct object of the liquidation proceeding was to reach the property of Intrust and the account holders and to distribute it and settle each account holders' interest. The liquidation was brought to enforce various parties' rights in the property held by Intrust, then in the possession of the Commissioner. Moreover, the relief sought by appellants, i.e., the turnover of "their" non-cash assets to them, specifically sought to have the court determine the extent of their entitlement to the funds and assets held in their accounts. This claim would be sufficient in and of itself to involve the in rem or, in the alternative, the quasi in rem powers of the court. Blackhawk Heating & Plumbing Co., 530 F.2d at 158. The trial court's jurisdiction was entirely dependent upon the location of the corporate and trust assets in Illinois. See Mullane, 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652.

Based on the foregoing, even though appellants were not personally named and served, under the principles of in rem jurisdiction, they were bound by the decision of the trial court. See Safeco Insurance Co. of Illinois v. Treinis, 238 Ill. App. 3d 541, 545, 606 N.E.2d 379 (1992). See also Federal Trade Comm'n v. Productive Marketing, Inc., 136 F. Supp. 2d 1096, 1106 (C.D. Cal. 2001) (in in rem cases, the courts have inherent authority to enforce their orders against nonparties). However, although the trial court had subject matter jurisdiction and in rem or quasi in rem jurisdiction over the res, appellants nonetheless are entitled to due process guarantees of adequate notice and an opportunity to be heard.

C. Due Process Considerations

Appellants appear to contend that independent of any jurisdictional consideration they were denied important property interests without adequate notice and an opportunity to be heard. With respect to notice, appellants reiterate their argument that the Code of Civil Procedure requires the receiver to file a complaint against each of them and serve them with process. *fn13 With respect to the opportunity to be heard, appellants appear to argue that they were entitled to more hearings both larger in number and scope. We disagree with appellants in each of these respects.

Even where the court properly possesses jurisdiction over the subject matter and over the property itself (the res), due process principles require that one cannot be deprived of property without adequate notice and an opportunity to defend. 3 R. Michael, Illinois Practice §8.1, at 83 (1989); City of Marseilles v. Union Bank, 317 Ill. App. 3d 931, 934, 741 N.E.2d 333 (2000). Due process is a "flexible concept and specific procedural requirements with respect to notice and opportunity to be heard vary, depending upon the character of the rights affected and the degree of the deprivation." Stillo v. State Retirement Systems, 305 Ill. App. 3d 1003, 1009, 714 N.E.2d 11 (1999).

The leading case on notice and due process requirements where, as here, personal service is not a prerequisite is Mullane. The issue before the Mullane Court was the adequacy of notice by publication to beneficiaries of a common trust fund when the trustee petitioned the court for a judgment settlement of the common account. The Court concluded that publication notice to missing beneficiaries or beneficiaries whose addresses or interests were unknown was adequate. Mullane, 339 U.S. at 317, 94 L. Ed. at 875, 70 S. Ct. at 659. However, notice by publication to those beneficiaries whose addresses were known to the trustee was not constitutionally adequate; notification by ordinary mail was required for such individuals. Mullane, 339 U.S. at 318, 94 L. Ed. at 875, 70 S. Ct. at 659. In Mullane, small trusts were pooled by Hanover Bank & Trust Company, a New York-based company, into one common fund for administration by the trustee. Hanover petitioned the court, pursuant to statute, for settlement of the account. At the time of the petition, there were approximately 113 trusts in the account, valued at over $3 million. Some of the trust beneficiaries were nonresidents of New York. Notice of Hanover's application was given by publication in a local New York newspaper in compliance with state law. Mullane, 339 U.S. at 309, 94 L. Ed. at 870-71, 70 S. Ct. at 655. Additionally, at the time an individual opened an account with Hanover, he or she was given a copy of the statute with respect to notice requirements in connection with any judicial settlement. Mullane, 339 U.S. at 310, 94 L. Ed. at 871, 70 S. Ct. at 655. A special guardian and attorney was appointed for the beneficiaries in the settlement proceeding, who appeared and specifically objected to the adequacy of notice. Mullane, 339 U.S. at 311, 94 L. Ed. at 871, 70 S. Ct. at 655. The trial court concluded that notice was sufficient. Mullane, 339 U.S. at 311, 94 L. Ed. at 871, 70 S. Ct. at 655. Thereafter, the trial court entered an order with respect to settlement of the fund, which order, inter alia, the Supreme Court recognized as terminating the rights of any beneficiary to object to improper management by the trustee. Mullane, 339 U.S. at 311, 94 L. Ed. at 871-72, 70 S. Ct. at 656; First National Bank of Winnetka v. Alleman, 115 Ill. App. 3d 224, 226, 450 N.E.2d 760 (1983); Elmhurst Stamping & Manufacturing Co. v. Amax Plating, Inc., 67 Ill. App. 3d 257, 260, 384 N.E.2d 839 (1978).

The Supreme Court, in response to appellants' argument that the trial court lacked personal jurisdiction over them due to insufficiency of notice, noted that the distinction between personal jurisdiction and in rem proceedings was old, but now confused due to new forms of proceedings. Mullane, 339 U.S. at 312, 94 L. Ed. at 872, 70 S. Ct. at 656. It then noted that courts differed on classification of proceedings to settle fiduciary accounts, some finding such proceedings to be in rem, some finding such proceedings to be quasi in rem, and some finding such proceedings in the nature of in rem. Mullane, 339 U.S. at 312, 94 L. Ed. at 872, 70 S. Ct. at 656. The Court, however, did not believe that due process requirements were dependant upon a particular classification of a proceeding as requiring personal jurisdiction or in rem jurisdiction. Rather, the particular notice procedures adopted by a state where it sought to deprive one of life, liberty, or property must "accord[] full opportunity to appear and be heard" appropriate to the nature of the case. Mullane, 339 U.S. at 313, 94 L. Ed. at 872, 70 S. Ct. at 656.

Well-established general principles guided the Court's consideration of the adequacy of notice:

"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [Citations.] The notice must be of such nature as reasonably to convey the required information [citation], and it must afford a reasonable time for those interested to make their appearance [citations]. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied. 'The criterion is not the possibility of conceivable injury but the just and reasonable character of the requirements, having reference to the subject with which the statute deals.' [Citations.]" Mullane, 339 U.S. at 314-15, 94 L. Ed. at 873-74, 70 S. Ct. at 657. See also In re Application of Rosewell, 117 Ill. 2d 479, 487, 490, 512 N.E.2d 1256 (1987); Hanrahan, 52 Ill. 2d at 45; Gibbs v. Estate of Dolan, 146 Ill. App. 3d 203, 207, 496 N.E.2d 1126 (1986).

Additionally, "[t]he reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected [citations], or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes." Mullane, 339 U.S. at 315, 94 L. Ed. at 874, 70 S. Ct. at 657-58. In evaluating the reasonableness of notice, the State's interests must be balanced against the beneficiaries' interest in being heard which "right *** has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest." Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657.

The Court then commented that it had not previously committed itself to any one formula for notice and that while personal service had always been found adequate, the Court had not always required personal service--due process cannot justify placing impossible or impracticable obstacles upon the state. Mullane, 339 U.S. at 313-14, 94 L. Ed. at 873, 70 S. Ct. at 657. See also Rosewell v. Chicago Title & Trust Co., 99 Ill. 2d 407, 412, 459 N.E.2d 966 (1984); Hanrahan, 52 Ill. 2d at 46. However, oftentimes, the Court had found publication/constructive notice insufficient because the notice was in small type in the back of newspapers, which even locals would not see, the odds that individuals outside the area would ever see such notice was slight, and the notice did not name those individuals whose attention it was supposed to draw. Mullane, 339 U.S. at 315, 94 L. Ed. at 874, 70 S. Ct. at 658.

Based on the considerations identified above, the Court concluded that personal service of the citation or petition for settlement of the account upon the known as well as unknown beneficiaries was not necessary, stating:

"[The] type of trust [before the Court] presupposes a large number of small interests. The individual interest does not stand alone but is identical with that of a class. The rights of each in the integrity of the fund and the fidelity of the trustee are shared by many other beneficiaries. Therefore notice reasonably certain to reach most of those interested in objecting is likely to safeguard the interests of all since any objection sustained would inure to the benefit of all. We think that under such circumstances reasonable risks that notice might not actually reach every beneficiary are justifiable." Mullane, 339 U.S. at 319, 94 L. Ed. at 876, 70 S. Ct. at 659-60.

Thus, Mullane concluded that in no event was personal service required under any due process considerations. It further concluded that notice by publication was sufficient with respect to unknown beneficiaries while more was required for known beneficiaries because publication alone was "not reasonably calculated to reach those who could easily be informed by other means at hand." Mullane, 339 U.S. at 319, 94 L. Ed. at 876, 70 S. Ct. at 660.

In the instant case, both actual and constructive notice was provided to account holders. Constructive notice came in the form of publication of pleadings, orders, the receiver's recommendations, etc. on Intrust's website. *fn14 Detailed information with respect to the proceedings was maintained on the website. However, we need not decide if notice via the Internet is in itself constitutionally sufficient because we conclude that actual notice was afforded to individual account holders, in conjunction with Internet publication, which was sufficient to satisfy the requirements of due process.

On April 17, 2000, each of the 17,000 account holders was mailed a letter by first class mail. The letter advised the account holders that the Commissioner had taken possession of Intrust, Intrust was involved in receivership proceedings, and a receiver had been appointed. The letter stated that all funds held by Intrust were in the possession, control, and under the supervision of the receiver. Account holders were advised that a substantial portion of cash placed with a third-party entity was missing and it was the priority of the receiver to determine the amount of money missing and how the beneficiaries would be affected by the missing cash. The letter expressed that the receiver could not currently calculate any loss to a particular account and, as such, restrictions were placed on all accounts. Account holders were informed that no formal claim filing procedure was yet in existence but they would be notified as soon as a procedure was in place. Lastly, the letter stated:

"As the cost of sending written communications to each customer and interested party is quite substantial, it is anticipated that letters such as this will be made in conjunction with the mailing of account statements. For more frequent updates, please visit [Intrust's] web site at"

Additionally, on June 14, 2000, each of the 17,000 account holders was mailed a notice by first class mail. The notice was also published on Intrust's website. This notice informed account holders that a hearing to determine the allocation of the cash shortage and implementation of the allocation was scheduled for July 28, 2000. The time and location were also identified. Account holders were advised that the receiver was preparing its recommendation which would be filed with the court and posted on Intrust's website by June 23. If any account holder did not have access to the Internet, the notice instructed the account holder to submit in writing to the receiver that he or she did not have access to the Internet and would like a copy of the recommendation to be sent to him or her by mail. In such circumstances, the receiver would send, by first class mail, a copy of its recommendation. The notice also instructed the account holders that at the hearing, the trial court would consider the receiver's recommendation, hear evidence, and issue a determination. Account holders were specifically informed that the trial court's determination would be binding upon all of them and that such determination may affect their right to assets in their accounts. The notice then notified the account holders that the court had directed that any objections or responses to the receiver's recommendation, along with any arguments or positions the account holders wanted the court to consider, should be filed with the court, in writing, by July 14.

We find that the mailings of April 17 and June 14 to all account holders satisfied the requirements of due process. First, communications with respect to the nature of the proceedings, the means of obtaining updated information, and the means by which to access and personally participate in the proceedings were mailed by first class mail, which is deemed to be adequate notice by Illinois courts and the United States Supreme Court. Guerrero v. Ryan, 272 Ill. App. 3d 945, 949, 651 N.E.2d 586 (1995); Mullane, 339 U.S. at 318, 94 L. Ed. at 875, 70 S. Ct. at 659. The first letter reasonably conveyed to the account holders the problems at Intrust and that their accounts were involved. The second letter informed account holders of the purpose of the hearing, the fact that their accounts would be affected, and how they might intervene in the court proceedings. It provided adequate notice of the purpose of the hearing and a reasonable time for them to make their appearances. Moreover, the account holders were advised that upon their request they would be kept further informed by first class mail if they lacked Internet access. Both mailed communications were plain to understand. In the instant case, the cost of personally serving 17,000 account holders with notice of every step in the proceeding would not only be impractical, but probably economically unfeasible.

In sum, we find that mailing notice with respect to the liquidation proceeding and allocation hearing by first class mail to each account holder was reasonably calculated, under the circumstances of this case, to apprise them of the pendency of the action in which their interests would be affected and provided them reasonable opportunity to appear.

With respect to the opportunity to be heard, the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), set forth criteria to evaluate whether particular procedural safeguards are met. These considerations are: "(1) the private interest that will be affected by the government's action; (2) the risk of an erroneous deprivation of that interest through the procedures used and the probable value, if any, of additional procedures; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the ...

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