Congress came back into session on September 9th after a five-week recess. RMAI is evaluating our involvement in the September 26th House Financial Services Committee Hearing on Examining Legislation to Protect Consumers and Small Business Owners from Abusive Debt Collection Practices. Additionally, RMAI will be active in getting our proposal for data and documentation requirements introduced in the House.
September 18th is the deadline to submit the RMAI Comments for the CFPB NPRM for debt collection rules. As soon as the Comments are submitted, we will share them with you, our members. Thank you all who assisted in the analysis, review, drafting, responding to surveys, etc. It took the entire team to make this happen.
What’s next? The CFPB will review and log all comments received. Historically, it has been approximately one year from the date the NPRM was proposed (May 19th) to the date the final rule is published – which means May 2020. After that, the proposed rule currently has an effective date of one year after the final rule is published, meaning compliance with the new rules will be required by May 2021.
RMAI is actively monitoring over 200 bills that may impact the receivables industry in both positive and negative ways. Here are a few noteworthy bills that have been introduced:
Massachusetts HB 3949 – This bill would require passive debt buyers to be licensed as debt collectors in Massachusetts. Currently, third party collection agencies and active debt buyers are regulated and licensed by the Massachusetts Division of Banks while passive debt buyers are regulated by the Attorney General’s Office and not required to be licensed. This bill would also exempt debt buying companies from bonding requirements and allow affiliated companies to be licensed under a single license and subject to a single examination [This bill was unanimously reported out of the Joint Committee on Consumer Protection & Professional Licensure on 7/1/19. RMAI has been advocating for uniformity and consistency in state licensing laws. Maintaining the Massachusetts bifurcated regulatory scheme does not make sense and adds to industry and consumer confusion. RMAI has retained a Massachusetts lobbyist to assist us in our efforts and anticipates a successful outcome.]
New York AB 6909-B/SB 4827-B – This bill, called the “Consumer Credit Fairness Act,” would: (1) reduce the statute of limitations from six to three years on consumer credit transactions; (2) “extinguish” the right to collect on consumer debt past the statute of limitations; (3) require the mailing of a notice by the court clerk after filing proof of service of the summons and complaint; (4) require specific data to be included in the complaint; and (5) require the provision of form affidavits. [RMAI and a coalition of industry participants, along with our respective lobbyists, fought up to the final day of the New York Legislature to stop this legislation. RMAI and the coalition met with the bill sponsor in August to discuss amendments for the 2020 legislative session.]
California SB 616 – This bill would automatically exempt the first $1,724 in a deposit account from a bank levies used to satisfy court-ordered judgments. [RMAI worked with an industry coalition in opposition to this bill for the past three years but unfortunately the bill passed by a narrow margin last week and is going to the Governor’s desk for his signature. The coalition had some success in reducing the amount of the original exemption from $2,250 to $1,724.]
If you are interested in obtaining a copy of the RMAI state tracking list, please contact David Reid at email@example.com.
Emails and Hyperlink Delivery of FDCPA Disclosures after Lavallee
Lavallee v. Med-1 Solutions, LLC from the U.S. Court of Appeals for the Seventh Circuit examines whether an email from a debt collector was an “initial communication” and if it was, whether a clickable hyperlink serves as a proper means of providing the validation notice mandated by § 1692g(a) of the federal Fair Debt Collection Practices Act. These disclosures can be contained in what the FDCPA refers to as the “initial communication” or provided “in writing” within five days of the initial communication
While the debt collector was found to have violated the FDCPA, the decision offers at least a construct for providing an email validation notice that could pass muster before this court. And perhaps more importantly, it adopts a restrictive interpretation of what constitutes a “communication” under the FDCPA.
Lavallee incurred several debts to a hospital for medical services. In November 2015, the hospital called her concerning other debts and, during that discussion, she learned that two additional debts had been assigned by the hospital to a debt collector, Med-1 Solutions, LLC. Lavallee called Med-1 concerning the additional debts later the same day.
Lavallee sued alleging that the call she placed to Med-1 was her “initial communication” concerning the two debts and that Med-1 failed to provide the 1692g(a) disclosures during the telephone call or in writing within five days.
Med-1 saw it differently — Lavallee’s November 2015 telephone call was not the initial communication concerning her debts. Instead, it argued, it was two emails Med-1 had sent Lavallee, one for each debt, in March and April 2015, both containing the § 1692g(a) disclosures. The emails, similar in form, came from “firstname.lastname@example.org” and were sent to the email address Lavallee provided to the hospital. The emails stated “Med-1 Solutions has sent you a secure message” and contained a hyperlink embedded in the text “View SecurePackage.” Clicking on the link would take the recipient to the validation notice containing the information and disclosures required by § 1692g(a).
The Court of Appeals held that the two emails were not “communications” as defined by the FDCPA and therefore could not be “initial communications” and, even if they were, they did not properly provide the validation notice.
What went wrong for the collector in this court’s view is that while an email may be commonly understood as a “communication,” what the FDCPA considers as a “communication” is quite different.
Emails can be “communications” within the meaning of the FDCPA. All it takes is for the email to “convey . . . information regarding a debt directly or indirectly . . . ” And there is little doubt such an email would qualify because the definition includes “any medium” as the means of conveying the information. § 1692a(2).
Here, the collector’s emails, according to the decision, did not qualify as an FDCPA communication because “the emails say nothing at all about a debt.” The emails, after all, do not mention a debt, a debt collector or any collection activity. But there are many who would say the FDCPA’s definition of communication should be read broadly and by its very definition would construe the hyperlink as meeting the test of “conveying … information regarding a debt . . . indirectly.” A person clicking on the hyperlink would receive information concerning the debt, such as the amount and the name of the creditor to whom the debt is owed, as well as a disclosure that the company was acting as a debt collector, among other things. The opinion does little to explore this issue.
Hyperlink Delivery of Validation Notice
The opinion also disapproved of the use of a hyperlink to deliver the validation notice, calling it “at best . . . a digital pathway to access the required information.” It analogized the hyperlink delivery to a printed letter that simply contained the location of where the disclosure could be obtained.
The Consumer Financial Protection Bureau (“CFPB”) recently proposed rules that would permit the use of “hyperlinks” to deliver the validation notice “if, among other things, the debt collector or a creditor first provided the consumer with notice and an opportunity to opt out.” One former federal consumer protection regulator recently criticized the use of hyperlinks as a security risk.
Of course, had the validation notice here been provided in the emails, the decision would probably have turned out much better for the collector on both issues. Section 1692g(a) allows for the validation notice to be “contained in the initial communication.” And since a communication can be conveyed through “any medium,” the validation notice can be provided in an initial communication made by telephone and, by extension, in a similar email, text message or, in a printed letter. On this point, the CFPB filed an amicus brief with the Court of Appeals which framed the issue as “whether [the collector] complied with the FDCPA’s requirement that a debt collector ‘send the consumer a written notice containing’ statutorily required information about the debt.” In framing the issue this way, it is possible that the CFPB did not see Med-1’s hyperlink as satisfying § 1692g(a)’s requirement that the disclosure “is contained in the initial communication.” Unfortunately, the brief does not squarely address this issue.
Don’t expect Lavallee to curtail email communications between debt collectors and consumers. Consumer use of emails has steadily grown and, according to one report, an estimated 117.7 billion emails will be sent and received by consumers worldwide per day in 2019. That number compares favorably to the projected 128.8 billion daily emails sent and received by businesses this year.
But what the decision does demonstrate is that emails are interpreted under the FDCPA the same as other means of communication. This is not the case in some states, which impose separate regulations on the use of electronic communications in debt collection.
11th Cir. Holds Single Alleged TCPA Violation Not Enough for Standing, Disagrees with 9th Cir.
The U.S. Court of Appeals for the Eleventh Circuit recently held that the receipt of one unwanted text message allegedly in violation of the federal Telephone Consumer Protection Act (“TCPA”) was not enough to show a concrete harm necessary to meet the injury-in-fact requirement of Article III.
The plaintiff, a former client of an attorney (“defendant”), received a multimedia text message from the defendant offering a 10 percent discount on his services. The plaintiff filed suit as a representative of a putative class of former clients of the defendant who received unsolicited text messages in the past four years.
The defendant moved to dismiss the complaint based on lack of standing, as well as for failure to state a claim which was denied. However, the trial court allowed the defendant to pursue an interlocutory appeal and stayed the proceedings.
On appeal, the plaintiff alleged that receiving one text message “caused Plaintiff to waste his time answering or otherwise addressing the message,” and “[w]hile doing so, both Plaintiff and his cellular phone were unavailable for otherwise legitimate purposes.” The plaintiff alleged that the message also “resulted in an invasion of Plaintiff’s privacy and right to enjoy the full utility of his cellular device.”
Initially, the Court observed that the Ninth Circuit ruling in Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017), involved a nearly identical issue and that Ninth Circuit held that the receipt of two unsolicited text messages constituted an injury in fact. However, the Eleventh Circuit found that decision unpersuasive, and noted that in the absence of any controlling authority, it would turn its “analysis to the framework outlined by the Supreme Court in Spokeo, Inc. v. Robins, 135 S. Ct. 1892 (2015), “which required it to “look to history and the judgment of Congress to see whether they support treating [plaintiff’s] allegations as a concrete injury in fact.”
With respect to the judgment of Congress, the Eleventh Circuit noted that Congress said nothing about the harms from telemarketing via text message, although “Congress was concerned about ‘intrusive invasion[s] of privacy’ into the home when it enacted the TCPA.” Still, the Eleventh Circuit disagreed with the Ninth Circuit’s conclusion in Van Patten that “Congress identified unsolicited contact as a concrete harm,” choosing instead to “focus our analysis on text messaging specifically.”
The Eleventh Circuit next turned to history for guidance. Specifically, with respect to the plaintiff’s allegations of invasion of privacy, the Court “look[ed] to the generally accepted tort of intrusion upon seclusion, which creates liability for invasions of privacy that would be ‘highly offensive to a reasonable person.’”
In comparing the plaintiff’s alleged harm to the tort of intrusion upon seclusion, the Eleventh Circuit determined that “[s]imply sending one text message to a private cell phone is not closely related to the severe kinds of actively intermeddling intrusions that the traditional tort contemplates.”
As to trespass, the plaintiff “alleged no invasion of any interest in real property here.”
With respect to the plaintiff’s general allegations of nuisance, the Eleventh Circuit compared them to traditional torts of trespass and nuisance but found them “also to be distinct both in kind and in degree.” As to nuisance under Florida law, “mere disturbance and annoyance as such do not in themselves necessarily give rise to an invasion of a legal right,” and the plaintiff’s text message is therefore “not closely related to these traditional harms because it is not alleged to have infringed upon [plaintiff’s] real property, either directly or indirectly.”
The plaintiff also asked the Court to consider the personal property torts of conversion and trespass to chattel. However, the Eleventh Circuit was unconvinced, explaining that “although [plaintiff’s] allegations here bear a passing resemblance to this kind of historical harm, they differ so significantly in degree as to undermine his position.”
Thus, the Eleventh Circuit concluded that “history and the judgment of Congress do not support finding concrete injury in [plaintiff’s] allegations” and reversed and remanded with instructions to dismiss without prejudice.
7th Cir. Holds No FDCPA Claim Where Consumer Failed to Prove Credit Card Transactions Were for ‘Consumer’ Purposes
The U.S. Court of Appeals for the Seventh Circuit recently affirmed judgment in favor of a collection law firm and a collection agency for claims arising under the federal Fair Debt Collection Practices Act (FDCPA) and the Wisconsin Consumer Act (WCA), finding that the debtor (the “plaintiff”) failed to “submit sufficient evidence to create a triable issue of fact that the debt incurred on the  account was for personal, family, or household purposes.”
The collection law firm filed suit against a consumer in Wisconsin state court to collect amounts due to its client, a collection agency. The plaintiff denied knowledge of, or association with the creditor and filed a lawsuit against the law firm, later adding the collection agency, alleging violations of the FDCPA and WCA.
The federal trial court entered judgment in favor of the law firm and collection agency, holding that the plaintiff failed to establish that the debt at issue was a “consumer debt,” incurred for personal, family or household purposes and was not, therefore. subject to the FDCPA or WCA.
On appeal, the plaintiff argued that five pieces of evidence established that the debt incurred on the credit card account was consumer debt: “(1) his statements that, to the extent he was liable for the debt, it was a consumer debt; (2) the defendants’ treatment of the debt as a consumer debt by including FDCPA disclaimers on the collection letters, suing [the plaintiff] in his personal capacity, and sending communications to his personal address; (3) [the law firm and the debt collector’s] description of their consumer debt collection services on their websites; (4) a [creditor] employee’s email description of the underlying account as a ‘consumer account’; and (5) the billing statements listing purchases made on the credit card for personal, family, or household purposes.”
First, the Seventh Circuit disagreed that the plaintiff’s representations proved that the debt was a consumer debt. In the state court collection action, the plaintiff denied any knowledge of the debt, but in his federal court complaint he alleged that “[t]o the extent that [debtor] entered into a credit agreement with [creditor], such agreement was entered into for personal, family or household purposes.” The court explained that these were irreconcilable positions that were, without more, insufficient to show the debt was a consumer debt.
Second, the court disagreed with the plaintiff’s next argument, noting that “courts have held repeatedly that merely including FDCPA disclaimers on debt collection letters is insufficient evidence that the debt was a consumer debt because debt collectors may be exercising caution and including disclaimers on all communications with debtors simply to avoid any FDCPA liability.” The court was also unpersuaded that the filing of the state court action and mailing of communications to the consumer’s home address established the debt as a consumer debt because an individual can be sued in a personal capacity for a business debt and can carry on business activities from his residence.
Third, the court rejected the argument that the debt was a consumer debt because the law firm and the debt collector advertised services collecting consumer debt on their websites, concluding that such general descriptions of their services have no bearing on the debt they attempted to collect from the debtor in this case.
Fourth, the Seventh Circuit held that the federal trial court did not abuse its discretion in finding that the email from the creditor that identified the plaintiff’s as “a consumer account” was inadmissible hearsay and did not meet any of the exclusions.
Fifth, the Seventh Circuit disagreed that the billing statements demonstrated that the debt in question was a consumer debt. While the statements showed that most charges to the account were low dollar purchases, primarily at gas stations and convenience stores, they also shed no light on why these charges were incurred.
Thus, the Seventh Circuit concluded that the trial court properly determined that the plaintiff failed to submit sufficient evidence to create a triable issue of material fact that the underlying debt at issue was a “consumer debt” for the purpose of the FDCPA and WCA.
2nd Cir. Holds FDCPA’s SOL Starts When Plaintiff is ‘Injured’
The U.S. Court of Appeals for the Second Circuit recently affirmed the dismissal of a claim under the federal Fair Debt Collection Practices Act (“FDCPA”), holding that a violation occurs for the purposes of the FDCPA’s one-year statute of limitations when an individual is injured by the alleged unlawful conduct.
In April 2008, the debt collector sent a restraining notice to a bank referencing a 2003 judgment against a debtor. The notice named correctly named the judgment debtor but incorrectly listed the plaintiff’s social security number and address. The bank froze the plaintiff’s account. After the plaintiff’s attorney notified the debt collector of the error, the debt collector withdrew the restraining notice and the bank lifted the freeze.
On Dec. 6, 2011, the debt collector sent the bank a second restraining notice containing similar information and the bank again froze the plaintiff’s accounts. The plaintiff again contacted the bank, and the bank lifted the freeze on Dec. 15, 2011.
On Dec. 14, 2012, the plaintiff filed a complaint alleging, among other things, violation of the FDCPA, 15 U.S.C. § 1692, et seq. Under the FDCPA, a claim must be filed “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d).
The trial court dismissed the FDCPA claim as untimely, concluding that the alleged violation occurred when the debt collector mailed the restraining notice on Dec. 6, 2011. The plaintiff filed a timely appeal.
On the first appeal, the Second Circuit concluded that the trial court erred because “where a debt collector sends an allegedly unlawful restraining notice to a bank, the FDCPA violation does not ‘occur’ for the purposes of the [statute of limitations] until the bank freezes the debtor’s account.” Benzemann v. Citibank N.A., 806 F.3d 98, 103 (2d Cir. 2015).
The Second Circuit also observed that “the FDCPA violation here did not ‘occur’ until [the bank] froze [plaintiff’s] account because it was only then that he had a complete cause of action and notice of the FDCPA violation.” Id.
Because the record was unclear as to whether the bank froze the plaintiff’s accounts on Dec. 13 or Dec. 14, the Second Circuit remanded for further proceedings. The Second Circuit also directed the trial court to consider, if it found the accounts were frozen on Dec. 13, 2011, whether the FDCPA’s statute of limitations is subject to the common law “discovery rule.”
After remand, the bank’s records indicated that it “blocked” the plaintiff’s accounts on Dec. 13, 2011. The plaintiff produced evidence indicating that he had problems accessing his account on Dec. 13, 2011, and learned of the debt collector’s restraining notice on Dec. 14, 2011 when he called the bank to access his account. The debtor collector moved for summary judgment.
The trial court found that the alleged FDCPA violation occurred when the bank froze the plaintiff’s accounts on Dec. 13, 2011, and because the plaintiff filed suit on Dec. 14, 2012, one year and one day later, his FDCPA claim was untimely.
The trial court also found that it did not need to determine whether the discovery rule applied to FDCPA claims because the outcome of this case would be the same, as the evidence indicated that the plaintiff knew the bank had frozen his accounts on Dec. 13, 2011.
On appeal, the plaintiff argued that his FDCPA claim was timely because the statute of limitations commenced when he received notice of the violation, i.e., when he learned of the debt collector’s restraining notice on Dec. 14, 2011.
The Second Circuit acknowledged that in the first appeal it observed that the FDCPA’s statute of limitations commenced when an individual is injured by unlawful conduct and receives “notice of the FDCPA violation.” However, the Second Circuit explained that the first appeal merely considered whether an FDCPA violation can occur, for the purposes of the statute of limitations, before the victim was injured. The Second Circuit explained that it did not examine whether the triggering of the statute of limitations also required notice of the FDCPA violation.
The Second Circuit stated that it intended to tether the commencement of the FDCPA limitations period to the date of injury “as indicated in its instructions to the district court on remand to determine the date of the freeze” to avoid an anomaly where the statute of limitations begins to run before an FDCPA plaintiff can file suit.
Moreover, in the Second Circuit’s view, the plaintiff’s interpretation undermined the policies that statute of limitations are intended to serve, which is to encourage putative plaintiffs to diligently prosecute their claims.
Thus, the Second Circuit clarified that it did not intend in the first appeal to expand the FDCPA’s statute of limitations by requiring individuals to receive “notice of the FDCPA violation.”
Next, the Second Circuit addressed the plaintiff’s argument that his claim was timely under the common law discovery rule. Under the discovery rule “a plaintiff’s cause of action accrues when he discovers, or with due diligence should have discovered, the injury that is the basis of the litigation.” Guilbert v. Gardner, 480 F.3d 140, 149 (2d Cir. 2007).
The Second Circuit noted that it had never decided whether the discovery rule applied to FDCPA claims, and declined to address this issue because the plaintiff’s claim here would be time barred even under the discovery rule.
As the Second Circuit explained, the trial court correctly determined that the plaintiff discovered his injury on the same day that the bank froze his accounts and, therefore, his FDCPA claim was untimely even if the discovery rule applied to FDCPA claims.
Finally, the Second Circuit rejected the plaintiff’s equitable tolling argument because he discovered that the bank froze his account on Dec. 13, 2011 and began investigating the incident that evening, but then waited just over one year to file his lawsuit.
In the Second Circuit’s view, the plaintiff had the necessary information within 24 hours to file a lawsuit and nothing prevented him from bringing a timely action.
Accordingly, the Second Circuit affirmed the trial court’s judgment.
9th Cir. Holds No FCRA Violation by CRA When Dispute Did Not Come ‘Directly’ From Consumer
The U.S. Court of Appeals for the Ninth Circuit held that where a credit repair organization sent dispute letters to a credit reporting agency (“CRA”) on behalf of a consumer, but the consumer did not identify the items to be disputed, review the letters, or otherwise play any role in preparing the letters, the letters did not come “directly” from the consumer, and the CRA was not required to conduct a reinvestigation under section 1681i of the federal Fair Credit Reporting Act (FCRA).
A consumer hired a credit repair organization (“company”) to perform “credit repair services.” The company thereafter sent a letter to a credit reporting agency asserting that several items in the consumer’s credit file were inaccurate and asking the CRA to conduct a reinvestigation to verify the items’ accuracy. The consumer had no input on the preparation of the letter, and did not review the letter before it was sent.
After receiving the letter, the CRA sent a letter to the consumer stating that it had “received a suspicious request in the mail” and “determined that it was not sent by [the consumer].” The CRA further informed the consumer that it would “not be initiating any disputes based on the suspicious correspondence.” Finally, the CRA explained that the consumer could call the CRA or visit its website if he believed the information in his credit file was inaccurate or incomplete.
The consumer did neither. Instead, the company sent several more letters to the CRA on the consumer’s behalf. However, the consumer again had no input on the drafting of the letters and did not review them before they were sent. The CRA did not initiate a reinvestigation after receiving the letters.
The consumer thereafter filed a complaint alleging that by failing to take action in response to the letters, the CRA violated two provisions of FCRA. Specifically, section 1681i, which requires consumer reporting agencies to reinvestigate disputed items, and section 1681e(b) which requires CRAs to use reasonable care in preparing consumer reports.
The CRA moved for summary judgment, and the trial court granted the motion ruling that section 1681i only required the CRA to reinvestigate disputes that came from the consumer directly. The trial court also determined that the agency did not violate section 1681e(b) because, in its view, that statute did not apply to reinvestigation procedures at all.
The matter was then appealed.
On appeal, the Ninth Circuit first analyzed the application of section 1681i, which provides in relevant part that CRAs must “conduct a reasonable reinvestigation” when an item in the consumer’s file “is disputed by the consumer and the consumer notifies the agency directly . . . of such dispute.” The Ninth Circuit observed that the question therefore was “whether those letters came ‘directly’ from [the consumer].”
In concluding that they did not, the Court considered the “unambiguous meaning of the word ‘directly,’” which it noted is defined by Merriam-Webster’s Third New International Dictionary as “without any intervening agency or instrumentality or determining influence.” Thus, the Ninth Circuit determined that “to notify a consumer reporting agency of a dispute ‘directly,’ a letter must come from the consumer and be sent to the agency.”
In this case, the consumer “played almost no part in submitting the dispute letter to [the CRA].” Specifically, he “did not identify the items to be disputed,” and “did not review the letter [the company] drafted before it sent it to [the CRA].” Moreover, he testified that he had “absolutely no input” into the contents of the letter at all.
Under those facts, the Ninth Circuit held that “the letters did not come directly from [the consumer].” However, the Court cautioned that its “holding is limited to the facts before us,” and “[w]e only hold that, in this case, where [the consumer] played no role in preparing the letters and did not review them before they were sent, the letters sent by [the company] did not come directly from [the consumer].”
The Ninth Circuit therefore affirmed the ruling of the district court granting the CRA’s motion for summary judgment on the section 1681i claim.
The Court next reviewed the claim under section 1681e(b), which provides in relevant part that CRAs must “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom [a consumer report] relates.” The appellant argued that even if section 1681i did not require the agency to conduct a reinvestigation, its refusal to reinvestigate nevertheless violated section 1681e(b) because it was unreasonable.
The Ninth Circuit disagreed, stating that “it would make little sense to use Section 1681e(b) to impose liability on [the CRA] for conduct that satisfied Section 1681i,” because “Section 1681i represents Congress’s determination that a consumer reporting agency is only required to initiate a reinvestigation if a consumer notifies the agency of a dispute directly.”
Thus, “[i]t cannot be unreasonable for agencies to follow that guidance.” The Ninth Circuit therefore held that the agency “did not act unreasonably and, as a result, did not violate Section 1681e(b).”
Accordingly, the Ninth Circuit affirmed the trial court’s order granting summary judgment in favor of the CRA.
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DID YOU KNOW RMAI OFFERS TWO (2) TYPES OF CERTIFICATION DESIGNATIONS?
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NOTE: An individual within your business MUST obtain Individual Certification prior to obtaining Business/Vendor Certification.
Individual Certification: complete 24 education credits within two (2) years and receive your Certified Receivables Compliance Professional (CRCP) designation.
Visit RMAI’s Certification Page for more information.
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