# Sunchaser Vacation Villas - Customer Service Feedback



## Northwynd CC

This is Customer Service for Sunchaser Vacation Villas.  If the moderators of the site wish to confirm this is an authorized account, you are welcome to contact us.

Generally, we avoid third party websites because of the effect anonymous posting has on information.  However, we monitor the sites and step in when necessary.

With the important maintenance fee deadlines in January, we felt it was important to address the misconceptions on this website.  We are disappointed and troubled by the fact that timeshare owners are attempting to present us as “the enemy.”  While the situation is anything but ideal, we did not cause it.  We are trying to fix the situation in a way that is fair to everyone, nothing more.

We have created this thread to try and help our owners appreciate the situation, our role in it, and to address the unfounded misconceptions.  We ask and hope that the moderators of this website will respect the purpose of this thread and that providing information to help timeshare owners understand the situation is a benefit to this website and all timeshare owners.  

We ask the moderators to try and keep the thread clean of unnecessary posts by individuals trying to detract from its purpose.  Those individuals can use the very large existing thread or create new ones.  We hope they will respect the process and act appropriately in this one.  Their fellow timeshare owners deserve it.

In addition to providing the substantial amount of information that follows this post, we are also opening ourselves up to answer questions.  5-10% of our owners review this website as such it allows for many owners to receive the answer to a question at once versus one on one discussion through customer service.

If you wish to ask a question, we ask that you honor the following guidelines:

1)	Send an email from the email address you have on record with us.  We will not respond to anonymous email accounts that we cannot verify.
2)	In the subject line of your email put “TUG Question” followed by your customer code (for example: JACK1234).   In the body of the email, place the question.
3)	Only submit one question per day.  If you have five questions, chances are other owners will ask your other four.  Our ability to respond will be much faster if everyone keeps to one question a day to minimize repetition.
4)	Do not submit questions in this thread, it will clutter the thread and they will not be answered.

Emails can be submitted to the normal customercare@northwynd.ca customer service account.

We feel it is important to give our owners a chance to understand the situation better.  We will continue to do our part as long as this thread remains civil and informative.  However, we can only control our behavior, not that of other posters. If things get out of hand, we will have no choice but to stop posting.

We hope that this thread helps you understand the situation at the resort and the history.  Most importantly, we hope this thread helps you understand that we are trying to be the solution to the situation and were not the creators of the problem.

As a reminder, nothing in this thread or other posted by this account should be construed as legal advice.


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## Northwynd CC

*Misconception #1*

Misconception #1: Northwynd is committing some type of massive fraud against the timeshare owners.  That secretly none of the renovation money will be used to renovate the resort and will disappear and then Northwynd will declare bankruptcy.

We want to address this misconception first because it is the most defamatory and unbelievable.

First, for a minute, we would like everyone to step back from their personal filter and look at this situation using the eyes of an external observer.  If possible, as someone you know who is not involved to think about the situation with you.  Ask yourself two simple questions: 

1)	If Northwynd was committing a massive fraud, how many people would have to be in on it?
2)	Why would those people help?

Let’s look at all the people who would have to be helping Northwynd execute this fraud:

Madam Justice Romaine of the Alberta Court of Queen’s Bench:  She had to fraudulently transfer Northwynd contracts they shouldn’t have received.

Ernst and Young: One of the four largest accounting firms in the world.  They had to act as monitor throughout the CCAA of Fairmont and approve the fraudulent reorganization creating Northwynd.

BLG (nee Borden Ladner Gervais) LLP: One of the largest law firms in Canada.  They had to act as legal counsel through the CCAA of Fairmont and perform all of the legal work necessary to create Northwynd and help it execute its fraud.

Norton Rose Fulbright LLP:  The fourth largest law firm in the world.  They agreed to act as trustee of the renovation funds and would have be committing fraud by distributing renovation funds to Northwynd that they know are not being used for renovation work.

Collins Barrow LLP: A 100 year old Canadian accounting firm with hundreds of staff.  They would have to be producing fraudulent audit reports to mask the true state of the resort.

VVI Construction: The general contractor for the renovation. They would have to be throwing their entire reputation away to perform a fake renovation.

The other FIVE engineering firms involved in the renovation: Same as VVI.  They would all have to be letting Northwynd use their names to perform a fake renovation.

LTA Consultants: The quantity surveyor for the renovation which has provided written reports to Norton Rose verifying completion of the renovation work.  All of these reports would have to be false.

All of the staff of the resort and Northwynd: They would all have to be willing to let Northwynd perform a fraud and do so without telling the police or quitting and finding new employment.

All of the timeshare owners who have been to the resort in the last six months and toured the renovated 800 building: They would all have to be lying about the renovation.

Then we have the management and owners of Northwynd.  Northwynd is an organization owned by 800 individual investors and managed by a board of trustees.  Why would management of Northwynd create and execute a massive fraud just to pay someone else?  Why would the 800 individual investors and board of trustees allow management to create and execute a massive fraud even if it did pay them? All 800 individual investors would have to be crooks.

These are the normal day to day checks and balances of an organization. There are thousands of people across a dozen companies who would have to be willingly participating in Northwynd’s fraud for it to actually be occurring and the vast majority would be receiving no benefit from it occurring.

 Second, if this was a fraud, why would we have offered a $100 a month payment plan for the renovation fee?  Why would we have delayed billing the Biennial Even owners until now?  If this really were a fraud, we would have billed everyone in April and we would have demanded payment in full rather than risk people “discovering the fraud” later.

Lastly, if this was a fraud, why would we have participated in filing the legal petition in the first place?  It would be the first fraud in history where the company committing the fraud has gone to court to support its actions.  It is beyond rational belief.


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## Northwynd CC

*Misconception #2*

Misconception #2: Various government organizations/media are looking into this supposed fraud

Northwynd talked to the RCMP on this issue when it was first raised.  The conversation lasted 15 seconds.  The RCMP asked what the issue was and we told them we sent a bill to owners under their contract and some don’t want to pay.  The RCMP said thank you and has not contacted us since because the RCMP doesn’t investigate contract disputes. 

CTV Edmonton (news television channel) contacted Service Alberta about the renovation fee and interviewed them on camera.  Service Alberta’s response was if you don’t pay attention to the contract you signed, you may discover you are responsible for fees you didn’t expect.  Service Alberta has never contacted us directly because they had sufficient information from CTV to know this is just a contract issue.

The superintendent of real estate in British Columbia contacted us and we provided all the information that was asked.  He said thank you very much and has not contacted us since.

We have accepted every media interview request we have received.  We have been on television with CTV, CBC, and GlobalTV.  We welcome any media request because it is important to get the true story out and squash the misconceptions.  Every media interviewer we have talked with has understood the situation and commiserated with the tough nature of the situation.

Contracts are a matter of interpretation and the only person entitled to definitively decide what a contract says is a judge which is exactly what Justice Loo has done.


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## Northwynd CC

*Misconception #3*

Misconception #3: Any breach of contract allows you to repudiate (terminate) your contract.

There seems to be a huge misconception on this website about the legal implications of breach of contract.  Some posters seem to be under the impression that any event, no matter how small, entitles them to walk away from a contract.  This is not the case and is the most dangerous misconception because it could cost you the greatest amount of money.

There are two main types of breach of contract: curable breaches and repudiatory (fundamental) breaches.

A curable breach is something that can be “fixed”, either through performance or damages (paying money).  A repudiatory breach is something that is so overwhelming as to render the agreement impossible to execute.

Using an example:

Let’s say that you enter into an agreement with a hairdresser to prepay 36 months of monthly hairstylings for $900 ($25 per hairstyling).  For simplicity, let’s assume no other terms of the contract or costs other than the $25 per hairstyling (let’s ignore time lost or travel as it doesn’t change the process)

In months 1-3 you go get your hairstyling.  In month four, you show up at the hairdresser and it is closed for renovations.  The sign says “will reopen in month 7.”  The hairdresser has breached its contract because it cannot give you your month 4-6 hairstylings.  Is this a curable breach or a repudiatory breach?

The answer is it is a curable breach.  Why? Because nothing is preventing either party from honoring the contract in months 7-36.  The hairdresser could cure the breach by either paying you $75 ($25 for each missed hairstyling) or by paying a third party (at whatever the cost) to provide you an equivalent hairstyling in each of the three months.

Now let’s assume you show up in month 7 and discover the hairdresser has reopened, but it is now a massage parlor!  Is this a curable breach or a repudiatory breach?

The answer is it is a repudiatory breach.  Why? Because there is no way for the hairdresser to honor the contract.  You could sue the hairdresser to get the remaining $750 of your prepayment back.

The easy way to think of the difference is to ask this question:  Does the breach of contract prevent the contract from operating as intended in the future or is it only a problem in the past/present?

How does this relate to our situation?  Even if the breach of contract arguments were valid, which we dispute, the alleged breaches are curable breaches.  

Let’s look at the audited financial statements since it is a popular argument. Does the delay in the financial statements have any impact on the ability of you and Northmont to execute the agreement today?  Does it stop you from booking a reservation? Does it stop you from paying your maintenance fees?  Does it stop you from using your week?  Does it stop Northmont from providing you your week or maintaining the resort?  

The answer to all of these questions is no which means if it is a breach, it is a curable breach.  That means the only claim you have is to cure the breach. 

If you sued, you would have to prove that the delay in the financial statements damaged you, and then you could sue for that amount.  You would have to be able to stand up in court and say “Had I got the financial statements sooner, I would have done X.” This is a pretty tough sell.  In addition, you would have to explain why you never did X once you received them.  Even if you cleared all of those obstacles, all you would gain is a monetary payment.  However, you would still have your contract.  

This is the hard truth almost everyone avoids on this website.  If someone sues Northmont for breach of contract, even if they win, they lose and lose big.  Why? Because people are advising then not to pay their bills while they fight which puts them in breach of contract.

Let’s assume they win a breach of contract fight three years from now.  Let’s also assume they haven’t paid a bill in those three years and that they own a regular yearly timeshare.  Let’s assume that the judge determines the damages caused by late financial statements and any other minor breach they can think of is worth $500.

They will win $500.  However, at the same time they will still owe the renovation fee, three years of maintenance fees, and interest on each of those balances.  All of which will be set off against the $500 which means the judge will say “you won $500, you lost $10,000, pay Northmont $9,500 and keep paying for the remainder of the contract.”  Because on top of everything else, they lose the opportunity to cancel and put the situation behind them.  They lose the peace of mind that comes with resolving the conflict.

There is nothing wrong with breaching a contract if someone believes the other party has caused a repudiatory breach first.  However, the cost is huge if they are wrong because then the only party in breach is them.  Unlike the possible breaches they are argue Northmont might have done, they are unquestionably in breach by not paying their bills.  This is why most regular lawyers in similar situations advise clients to pay their bills even if they believe the other side is wrong.  It is far less costly to seek to get the money back later if they win than pay the damages for being in breach if they are wrong.

The key remains the question: Does the breach of contract prevent the contract from operating as intended in the future or is it only a problem in the past/present?

No matter what breach of contract you believe might exist, it does not affect the future operation of the resort because if it did, the resort would be closed today.  The fact that you can still go and stay at the resort right now proves that any breach that has already occurred is not a repudiatory breach.  

Even if you could produce enough minor breaches to cause Northmont to fail, it would not repudiate the contracts.  Why? For the same reason it didn’t when Fairmont failed.  If Northmont failed, it would go into receivership, the courts would sell off the contracts to a new developer/property manager, and life would go on.


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## Northwynd CC

*Misconception #4*

Misconception #4: Northwynd is owned by the same people who owned Fairmont

We want to address the relationship, or specifically lack of relationship, between Fairmont and Northwynd.

Over 90% of the timeshare owners at Sunchaser purchased their timeshare from Fairmont Resort Properties Ltd. (“Fairmont”) from 1990-2009.  This was a company that was privately owned by a group of individuals.  Fairmont also was the property manager of the resort during that time.

On March 30, 2009, Fairmont entered into Companies’ Creditors Arrangement Act (“CCAA”) protection which is a legal process for companies that are insolvent similar to bankruptcy.  

Fairmont became insolvent because it defaulted on $44,000,000 in debt. If you want, you can read all about the Fairmont CCAA on the monitor, Ernst and Young’s, website:

http://documentcentre.eycan.com/Pages/Main.aspx?SID=107

Fairmont raised the $44,000,000 in the period from 2005 to 2008 through another company called FRPL Management Ltd. (“FRPL”).  FRPL raised money for Fairmont by selling asset backed mortgages which were a very popular type of investment bond during that period for senior citizens because of the high interest rates and perceived low risk.

Unfortunately, history proved these investments to be much riskier than believed and many have resulted in bankruptcy.  In Alberta, you can search about companies such as Harvest Capital, Shire Investments, Concrete Equities, Platinum Equities to name a few.  All sold similar products to similar investors with tragic results.

FRPL sold the $44,000,000 in bonds to 800-850 (we’ll just use 800 going forward for simplicity) individual investors.  The average investment was ~$55,000.  The typical investor was a retired senior citizen looking for a higher rate of return than they could receive from their bank.  In addition, a significant minority of the investors were already Fairmont timeshare owners.  They invested in the bonds because they liked their timeshare.

When Fairmont defaulted on these bonds, the 800 investors risked losing most of their investment.  An asset backed mortgage is essentially the same as a home mortgage.  The owner of the mortgage is entitled to either sue for payment if the seller defaults, or foreclose on the assets.  Accordingly, during the CCAA of Fairmont, the 800 bondholders were presented two choices: liquidate all the assets and receive whatever they could which would have been a huge loss, or foreclose on the assets, including Sunchaser.

The 800 bondholders chose the second option and became the unitholders (Northwynd is a trust instead of a company.  A unitholder in a trust is equivalent to the shareholder of a company) of Northwynd.

As such, this misconception is entirely false.  The owners of Northwynd have no relation to the owners of Fairmont.  On the contrary, the owners of Northwynd are 800 individuals who are as big or bigger victims of Fairmont’s failure as a business than our timeshare owners.  They invested honestly in a bond they thought was secure from a company they thought was safe only to discover neither matched their expectations.

The owners of Northwynd are to Fairmont what the Royal Bank is a homeowner they provide a mortgage to.


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## Northwynd CC

*Misconception #5*

Misconception #5: Northwynd “bought” Fairmont

This misconception appears to stem from confusion over the CCAA process.  As we noted above, Northwynd is the result of 800 individual investors foreclosing on their debt just like a bank foreclosing on a house if a mortgage is in default.  As such, they did not buy anything.  They did not have $44,000,000 and the ability to spend it on whatever they chose or increase or decrease the price.  They had a loan and an ability to foreclose on it.

If a bank issues a mortgage and the homeowner decides to use the house as a Marijuana grow op and wrecks the house, the bank doesn’t get to foreclose on the neighbor’s house.


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## Northwynd CC

*Misconception #6*

Misconception #6: Northwynd has sold investments 

We do not know where this misconception comes from.  Northwynd has never sold any investments. Computershare, which is a multi-billion dollar Australian Stock Exchange listed company maintains the unit (share) register of Northwynd and can easily confirm that Northwynd's outstanding units have not increased since Northwynd was created.

There has never been a requirement to file anything with the Alberta Securities Commission because we have never attempted to sell any investment.


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## Northwynd CC

*Misconception #7*

Misconception #7: Northwynd owes astronomical amounts of money to others.

Some people have speculated that we owe in some cases over $100 million to someone, somewhere.  Not only do we not know where this misconception comes from, it makes no practical sense. If it were true, Northwynd would be bankrupt.  

Northwynd has never owed anyone $10 million, let alone $100 million.

Northwynd’s 800 unitholders were owed $44,000,000 by Fairmont.  However, they do not own debt in Northwynd.  They own units (shares) which mean they are equity holders.  Accordingly, there is no interest on the units and no repayment terms.  Northwynd will not suddenly go bankrupt if the unitholders are not paid some amount by some future date.


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## Northwynd CC

*Misconception #8*

Misconception #8: Northwynd is run by the same people who owned/controlled Fairmont

This misconception appears to stem from confusion over the difference between Fairmont and FRPL and the initial creation of Northwynd.  Fairmont was the company that ran the resort and sold the timeshares.  FRPL was the company that sold the bonds to the 800 unitholders.

Under the mechanics of the bonds, the individual investor bought FRPL bonds which in turn invested them in Fairmont.  As a result, it was FRPL that foreclosed on Fairmont and then created Northwynd.  It is true that the head of FRPL became a member of the board of trustees (the Trust equivalent of a board of directors) of Northwynd on its creation.  However, that person was never a part of the management of Fairmont.  They were separate organizations with separate purposes. In addition, that person is no longer involved in Northwynd in any capacity.

The senior executives of Fairmont all departed before, during or at the conclusion of the CCAA of Fairmont.  They have never had any part in the operation of Northwynd or Sunchaser.

The current Northwynd board of trustees is made up of unitholders of the Trust and the majority continues to be or have been timeshare owners, including half who were Sunchaser timeshare owners which resulted in their investment in the FRPL bonds.

Northwynd’s CEO was hired after Northwynd was created and had no past relationship with any Fairmont or FRPL individual.

Notwithstanding, all organizations are ultimately run by their unitholders/shareholders.  Northwynd’s unitholders elect a board of trustees to represent them.  The board of trustees hires management and approves the business plan.  Management operates the organization for the benefit of the unitholders.  

Accordingly, this misconception is false for two reasons.  Firstly, none of the Fairmont executives has or has ever had any involvement in management of Northwynd.  Secondly, Northwynd is run by its 800 unitholders.


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## Northwynd CC

*Misconception #9*

Misconception #9 Northwynd is responsible for Fairmont’s actions.

This misconception appears to stem from a lack of understanding of the purpose of CCAA proceedings and the effect of the CCAA orders issued by Madam Justice Romaine of the Court of Queen’s Bench of Alberta.

The CCAA is “an act to facilitate compromises and arrangements between companies and their creditors.” If you want to read any of the act, you can find it here:

http://laws.justice.gc.ca/eng/acts/C-36/FullText.html

In short, CCAA is designed to try and recover as much value for creditors as possibly from companies that would otherwise fail.  The idea is that in cases where CCAA is used, there is more value to the creditors from the company’s survival or orderly disposition of assets than a forced liquidation.

It is inherent in CCAA proceedings that liabilities of the previous organization are extinguished in order for the process to work.  If a prospective buyer of an asset were told they have to keep the liabilities of the predecessor they would reduce their price or never pay.

As such, it is no surprise that this is exactly what happened with Fairmont and Northwynd.  If you go back to the Ernst and Young website, there are two documents which address the transfer of the timeshare contracts to Northwynd:  the “Vesting Order, dated July 5, 2010” (the “Vesting Order”) which is under CCAA Proceedings/Court Orders/ Section 17; and “Affidavit of Gary Bentham Part I” (the “GB Affidavit”) in the same section.

It takes a bit of drilling down to follow the information, but Madam Justice Romaine assigns the timeshare contracts at Fairmont free and clear of any past liabilities to Northwynd as follows:

1)	Para. 4 of the Vesting Order (page 2) approves the vesting of the “Foreclosed Assets, as such term is defined in the Foreclosure Agreement.” 
2)	“Foreclosed Assets” in the Foreclosure Agreement are defined on page 13 of the Foreclosure Agreement (page 26 of the GB Affidavit) to include “Fairmont Foreclosed Assets”
3)	“Fairmont Foreclosed Assets” are defined on page 6 (page 19 of the GB Affidavit) to include “Fairmont Foreclosed Assets (Northmont)”
4)	“Fairmont Foreclosed Assets (Northmont)” are defined on page 6 (page 19) to include the “Fairmont Timeshare Agreements”
5)	“Fairmont Timeshare Agreements” are defined on page 12 (page 25) as “means all of the Vacation Interval Agreements…”

If that didn’t lull you to sleep, it says that the timeshare agreements are “Foreclosed Assets” which takes us back to the Vesting Order.  Para. 7 of the Vesting Order (page 3-5, but specifically the top of page 5) states in very long-winded legalize that the Foreclosed Assets vest “in each case free and clear from <a whole bunch of legal stuff>”.  In other words, free of liability.

In short, this has never been an issue and continues not to be an issue.  Northwynd has never been responsible for anything Fairmont might or might not have done.  It is a real shame that more timeshare owners did not attend the special case.  If they did, they would be able to explain that the lawyers for the delinquent owners brought this up and that it was dismissed without merit by Justice Loo for the reasons listed above.


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## Northwynd CC

*Misconception #10*

Misconception #10: Northwynd has “done this before” at other resorts.

This misconception is an unfortunate result of Northwynd’s foreclosure of Fairmont’s assets.  It is true that when Northwynd was created it became owner of Fairmont’s other resorts.  It is also true Northwynd no longer has any real involvement in some of those resorts.

However, each of those resorts had their own specific issues resulting from Fairmont’s ownership that have nothing to do with Sunchaser or its operation.

Everyone is aware of the state Fairmont left Sunchaser in so it should come as no surprise that the other resorts had their own issues.  If someone walks into an emergency room with 10 bullet wounds, it probably isn’t the doctor’s fault when they die on the operating table.  Northwynd has done the best it can with each of the resorts it foreclosed on, but some of the resorts were just not savable through no fault of our own.  We have, however, done the best we can to find a reasonable solution to the issues of each resort given its circumstances, just as we are doing with Sunchaser.


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## Northwynd CC

*Misconception #11*

Misconception #11: If Northwynd would just go away, so would the issue.

This is a really strange misconception because the Fairmont history already explains why this is false.

Whether or not Northwynd lives or dies, the resort will survive.  If Northwynd were to enter bankruptcy, the same process that occurred with Fairmont would occur with Northwynd.  A judge would transfer the contracts and management of the resort to a new property manager and life would go on.

Attempting to bankrupt Northwynd might change the manager, but it doesn’t change the state of the resort.  A new manager might come in and say “give us six months to see if the renovation really is necessary” but after those six months, you’ll be back to where you are now.

Northwynd hired half dozen third party specialists to develop the renovation plan.  A general contractor, civil engineers, structural engineers, an interior designer, etc.  All of these specialists cannot be wrong.


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## Northwynd CC

*Misconception #12*

Misconception #12: This is a fight between “the little guy” and “big mean corporation”

This is patently false.  We have already explained that we are not a big mean corporation but an organization created to help 800 individual investors who were harmed as much or more by Fairmont as the timeshare owners.

In addition, Northwynd operates the resort on behalf of the timeshare owners.  There are thousands of timeshare owners who want the resort to survive and prosper.  Those owners recognize their responsibility under their contracts and expect everyone else to do the same.  Those owners are the ones who are hurt the most by this process and we are responsible to defend them against these unfounded actions.

We do not understand how this has become characterized as a fight at all.  This was never supposed to be a fight because we are all in this together.  Whether you are an employee of the resort, one of our 800 unitholders, or one of the 14,500 timeshare owners, you share this tough situation with us because of the state Fairmont left the resort in.  It seems to be a classic case of trying to kill the messenger.

We tried to find a solution that balanced all of the groups in a fair way.

If we were a big mean corporation, our unitholders could have told us we could not offer a cancellation option.  If they were looking out for their own goals only, they could have forced everyone to pay to renovate the resort and then started to foreclose or offer cancellations and they would have been legally right to do so.  In addition, if all of the remaining timeshare owners were big mean timeshare owners, they could have forced everyone to pay to renovate the resort and they would have been legally right to do so.  

The majority of owners who want to cancel recognize that the cancellation offer is an offer Northmont did not have to provide.  Here are some of the things our cancelled owners have said to us in customer service:

“Thanks a lot for giving this option to cancel out, which is a just program.”

“We have sent in our payment and do appreciate the option to cancel – as stated we did not have previously, however, we did not take the opportunity to express thanks for the very clear attempts to fairly deal with an unpleasant situation.”

“We are thankful for the opportunity to get rid of our time share.  Our son and daughter in law were living in Invermere when we bought, but have moved back to <place>, making it more difficult for us to make use of our week at the resort.  We know that you wouldn’t have been obligated to offer us the freedom to leave, but we appreciate it and have happily sent in our payment.  So, best regards, and be encouraged, because you are doing a good job of managing something very difficult.”

“We wish to send our thanks to you for being very informative and giving us a fair way out.”

Here are some of the things our owners who chose to stay have said:

“I also hope you will get a lot of positive reinforcement from the many who, like myself, realize you are indeed trying to resolve a very difficult problem you did not create.  On behalf of the satisfied, thank you.”

“As an owner with three biannauls in our family and you, as the representatives of the Resort, we both find ourselves in a difficult situation.  Carry on.  I know it will not be easy.  It has not been easy for us to let two of our treasured weeks go, pay multiple thousands of dollars…but we all press on to a solution that will enable all of us to enjoy and appreciate a better future than what would have been, had the place gone to total disrepair or bankrupted eventually.”

“Many thanks as well to all of you for your efforts in keeping the resort going.”

“We wanted to add our input to the positive side and thank you and the Sunchaser and Northwynd teams for all your efforts in working with us through a tough situation.  Thank you for facing the situation squarely and developing a sound go forward plan and for clearly explaining it.  The time has more than come for us to get real and start to re-build.  None of us created this problem but our challenge remains to move forward in the fairest and wisest way possible.  We believe you are doing just that.”

If someone really wants to characterize this tough situation as a fight, it isn’t a fight between the timeshare owners and Northwynd.  It is a fight between a few hundred delinquent owners who refuse to accept a reasonable solution against the remaining 14,000 owners and 800 individual investors who have acted reasonably.  We maintain our strength against the misconceptions spread behind anonymous user accounts from the positive feedback we receive daily from our owners who recognize our efforts.


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## Northwynd CC

*Misconception #13*

Misconception #13: If we sue long enough, Northwynd will fold

From communications we have seen, some of the major activists for continued legal action are not actually trying to win.  Rather, then are trying not to lose for as long as possible. They believe if they attack the resort long enough, Northwynd will have no choice but to settle because of the time and cost involved.  Given the lack of point to the appeal, it appears to be a further attempt at this strategy.  

As previously noted, our responsibility is to protect the thousands of owners who want the resort to succeed against the actions of delinquent owners.  It would be grossly unfair to reward a few hundred delinquent owners for holding thousands of owner’s hostage.

The frustrating part is we know the strategy is inherently flawed because it doesn’t require running Northwynd out of money paying legal bills, it requires running the resort out of money.  The thousands of paying timeshare owners who want the resort to continue can fund a substantially larger legal battle than a few hundred delinquent owners.

We do not want any of our owners, even the ones who have called us or emailed us with negative attacks and unfounded allegations, losing hundreds or thousands of dollars for no reason.


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## Northwynd CC

*Misconception #14*

Misconception #14: Northwynd will not take us to court because it will cost them too much.

An owner addressed this misconception quite well back in November.  It costs far more not to take delinquent owners to court than it does to do so.  Expecting the thousands of honorable owners to pay the delinquent owners bills is unacceptable.

While we hope that resolving the misconceptions in the thread will help owners to make an informed decision and choose one of the options, we recognize there are owners who will still try to remain in default.  We are already working with our collections agency on our procedures for filing statements of claim in February.  With modern enhancements to the legal process, our collections agency is capable of filing hundreds of statements of claim per day if necessary.


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## Northwynd CC

*Misconception #15*

Misconception #15: The appeal is what you think it is/If the appeal is successful, you can void your contract/If the appeal is successful, you don’t have to pay your fees

We hope that the legal counsel for the delinquent owners has explained the effect of the appeal they have filed, but if they have, it has not been posted on this website. 

It is interesting that the delinquent owners have posted regularly about the fact that the appeal was filed, yet none of them have ever brought up what the appeal says.  Though it is not surprising considering its actual content.

The appeal seeks the following:

1.	The Order of Madam Justice Loo be set aside.
2.	The special case based on hypothetical assumptions is not appropriate and should not have been decided.
3.	The facts comprising the special case were insufficient to answer the questions presented in the special case.
4.	In the alternative, the answers to the questions in the special case should be no.

The appeal is fundamentally based on items #1-#3 which are of no benefit to anyone except to frustrate the operation of the resort.  A “winning” appeal on items #1-#3 does not change the answer to the questions from yes to no.  Instead, it would change the answer to the questions from yes to “I’m not allowed to say because of a technicality, but I would have said yes.”

Item #4 is a throwaway which is why it says “in the alternative.”  If they actually thought they had a valid appeal that the answers should be no, they wouldn’t be fighting to remove Justice Loo’s ability to have answered the questions at all.  Imagine the delinquent owners frustration if the appeal court ruled “we agree the answers should have been no, but we also agree she isn’t allowed to answer, so #4 is dismissed.”

This means a successful appeal does not change the facts.  The invoices are still outstanding.  The delinquent owners are still responsible for them.  The balances are still in default and still accruing interest.  All a successful appeal does is force every delinquent owner to defend themselves personally against a statement of claim.

We cannot understand how it could be considered a good thing to force every delinquent owner to go through the stress of unnecessary and costly individual litigation except to try and achieve misconception #13.


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## Northwynd CC

*Misconception #16*

Misconception #16: Hundreds of owners are joining the appeal/the appeal is gaining momentum.

If you look at the appeal, you will notice that the appeal is filed by “JEKE Enterprises Ltd. as representative of approximately 300 owners/leaseholders”.

Cox Taylor represented 300 owners in the special case.  Michael Geldert represented 112.  Docken Klym represented 243 and Kellie Hamilton had 100.  There are now “approximately 300” owners according to the appeal.  That is a loss of over 50% of the owners. 

300 owners is trivial compared to the number of owners we talk to on a daily and weekly basis in customer service.  In May, we were responding to overly 300 owners per day and the vast majority either accepted the situation and made a decision or wanted to wait until Justice Loo confirmed our actions were reasonable.  300 owners out of 14,500 is barely 2%.

Over 7,000 owners have cancelled or are paying the renovation fee.  Now that Justice Loo has rendered her ruling and we are through the holiday break, that number will grow by thousands more as we near the January deadlines.

Unfortunately, the 7,000 owners have no reason to post here because they have already made their decision which is a shame because the discussion here would be pretty different if there was fair representation of actual opinion.  Instead of a conversation dominated by the extreme minority, there would be 25 people advising owners to make a decision for every 1 owner advising owners to keep fighting a costly and unnecessary battle.


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## Northwynd CC

*Misconception #17*

Misconception #17: The delinquent owners are who you think they are/JEKE Enterprises Ltd.

Looking at the appeal again, you’ll remember it is filed by “JEKE Enterprises Ltd. as representative of approximately 300 owners/leaseholders”.

Chances are, the first question you are asking is “What is JEKE Enterprises Ltd.?” and if you are it is a very good question because to the best of our knowledge it has never been brought up on this website.

From statements in the cross examination of Jim Belfry in the special case, JEKE Enterprises is a family owned investment company.  If you have followed the special case and this website, you probably recognize the name Jim Belfry as he has made many posts and sent out emails and updates about the court proceedings.  

If you look at this website, you’ll see that the posts refer to Jim Belfry as a timeshare owner.  Now, if you compare this to the affidavit of Jim Belfry in the special case and his cross examination, you’ll see that he goes on at length to confirm this is not true at all.

Jim Belfry is not a timeshare owner.  He is just a director of JEKE Enterprises which owns the timeshare leases.  Why does that matter?  In his own words under oath in his cross examination: “My understanding was that I had no personal liability under the lease.”

It is his understanding that when this legal battle is lost, he has no personal liability. If he is correct, we can sue his family company, but we can’t sue him.  We can’t put a lien on his house, garnish his wages or seize his assets like we can with a normal delinquent owner.

Most importantly, if he’s right, he isn’t risking thousands of dollars in interest and maintenance fees to keep fighting like the rest of you.  If there are no assets of value in his family company, he’s not risking anything at all.  It is a lot easier to continue fighting when you believe there are no consequences to losing.

We do not believe a company represented by a director who has gone on at length to confirm they have no personal liability is representative of your interests.  We believe you should ask whether they have weighted just how dangerous and costly this exercise is to you personally when the same is not true for them.

We believe this is an issue of paramount importance equivalent to a conflict of interest that should have been disclosed from day one and repeated regularly. If you are going to be represented by someone or something, you deserve to know the truth about their position and motivations in the situation.  Especially when it was apparently such an important issue to Mr. Belfry that he sought out Northwynd to confirm his lack of personal liability swore to it under oath on cross examination.


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## Northwynd CC

*Misconception #18*

Misconception #18: That everyone knows or understands the defense proposed by Mr. Geldert.

This is the biggest misconception on the site and one we cannot answer.  Anytime someone asks the question “do we have a chance?” or “how long will this take?” or “how much will it cost?” the responses masterfully avoid answering the questions.  Instead, you get responses like “Call Mr. Geldert” or “We have a strong case” or “Northmont is wrong” or “a good fight is worth fighting.” None of which provide insight into Mr. Geldert’s legal position, how likely it is to fail, and the consequences when it does fail.

No one seems willing to say why they think there is a valid legal basis for winning.  You would think this is the most important thing you should be told.  Hyperbole and unproven misconceptions are not a defense.

On this issue, we ask any client of Mr. Geldert to have him produce a legal opinion outlining the basis under fact, law, and precedent as to why he thinks they have an argument. If someone is going to risk thousands of dollars hoping Mr. Geldert will provide them an unconditional release, they deserve to know what he’s arguing and not gambling on blind faith.  If the position has any credibility, it should stand up to public scrutiny.  

We published our legal position from Norton Rose almost a year ago providing the reasons we believe we are acting fairly and reasonably in accordance with the agreements.  Justice Loo published her reasons for judgment in November providing the reasons she believes we are acting reasonably in accordance with the agreements.

If Mr. Geldert’s legal position has any merit, it is time for him to publish it.  He has had eight months to prepare and it has to be produced in court anyways.  Let everyone see the legal position he will be fighting in court and decide if it holds water.  It is only fair.


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## Northwynd CC

*Misconception #19*

Misconception #19: That the misconceptions about Northwynd or contract law are actually believed by people to the extent they claim.

We know we did not cause the issues at the resort. The vast majority of our timeshare owners know we did not cause the issues at the resort.

We know we are not responsible for Fairmont’s actions.  The vast majority of our timeshare owners know we are not responsible for Fairmont’s actions.

We know trivial items like a delay in the financial statements are not a repudiary breach of contract.  The vast majority of our timeshare owners know trivial items are not a repudiary breach of contract.

We believe that the people who are posting issues on this website know all of this as well.  However, they have no choice but to *hope* they are true because they have some personal reason they cannot accept the actual truth.  

In many cases, we have talked to these owners and often on multiple occasions.  We have listened to their personal reasons and rationalizations.  We have answered their questions. They understand the situation, but they choose not to accept it because of some personal roadblock.  Whether it is because they cannot afford the cost of cancelling, their pride has gotten in the way, they have got caught up in “group think” and the idea that if other people believe maybe it is true, or they are just plain mad at Fairmont for the situation (which we can  understand), they cannot accept the truth.  As such, bringing up these misconceptions occurs because it is their only option.

There are only three entities that can be responsible for fixing the resort: The original developer/property manager (Fairmont), the current developer/property manager (Northwynd), and the timeshare owner.  Since Fairmont is bankrupt, that only leaves the timeshare owner and Northwynd.  If a timeshare owner doesn’t want to pay, they have no choice but to try and rationalize why Northwynd is the “enemy”, unfair, and should pay to fix everything or let them walk away.

We sympathize with this issue because we are all in this together.  Our 800 unitholders would love to be able to sue Fairmont. In a perfect world, Fairmont would have $100 million in a bank account and they would pay our unitholders back and they would pay for any failures they created at the resort.

Unfortunately, Fairmont doesn’t and we all have to make the best of the situation we have, not the situation we wish we had.

As well, as much as we sympathize with an individual owner rejecting the situation, we find it tragic and appalling that those same individuals are trying to solicit other owners to their cause.  It is one thing to decide that you personally choose to reject the situation, but soliciting others who in some cases cannot afford the consequences that will come with losing is morally wrong.

We have followed the case of CindyD on this site and it is the perfect case study of the damage being caused by these misconceptions and wonder how many other owners are in the same boat.  If you read the history of CindyD’s posts on this site, it is demoralizing.

CindyD did the smart thing and went to a lawyer she knew personally.  Her lawyer told her to accept the situation and cancel.  CindyD got caught up in the misconceptions and strayed.  She sent her lawyer all of the “information” from this website and her lawyer told her again to accept the situation and cancel.  Again CindyD got caught up in the misconceptions and hired Cox Taylor.

Now, CindyD is out $615 in legal fees and assuming she’s an annual owner, she’s out hundreds of dollars in interest and owes her 2014 maintenance fees.  On top of that, she stated on December 14 that she is on a fixed income and the “bottom line is a concern.”  

That’s the damage these misconceptions are causing.  A senior citizen on a fixed income who was smart enough to talk to her own lawyer got talked out of the reasonable solution and into fighting a losing battle for what?  So a few other owners could lower their legal bill and fight a battle they should know is wrong? 

We are posting and trying to dispel these misconceptions.  It is bad enough we have one CindyD, we do not want to see more.


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## Northwynd CC

*Misconception #20*

Misconception #20: Justice Loo's judgment was influenced by the BC government.

Justice Loo is not a provincially appointed judge.  Superior court judges, like the BC Supreme Court and the Alberta Court of Queen's Bench are federally appointed by Cabinet just like the court of appeal.  

If you would like more information on the Supreme Court of British Columbia, we suggest you review the wikipedia entry which includes this information:

http://en.wikipedia.org/wiki/Supreme_Court_of_British_Columbia


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## Northwynd CC

*Misconception #22*

Misconception #22: The timeshare owners are not responsible for "capital costs"

This issue was specifically addressed by Justice Loo in lines 88 to 95 of her judgment.  However, we’ll add a bit more information.

Our position has been and continues to be that the owners are responsible for all costs of the resort and that the definition of costs is at the beginning of the cost clause of the agreements which say “the Lessee/co-owner shall be responsible for his proportionate share of all administration, maintenance and repair costs and replacement costs with respect to the project and the refurbishment of the villas, including, without limiting the generality of the foregoing, the following:”.  

The remainder of the clause, including the part that you refer to that has changed over time, is nothing more than examples of the types of costs and is not binding.  That is the effect of the phrase “without limiting the foregoing.”

Justice Loo confirmed this position specifically stating it at line 88 where she said “Although the owner’s characterization of the upgrades as extending “well beyond regular maintenance” may be accurate, the owner’s contractual liability is not limited to payment of only maintenance costs.  Under the terms of the agreements, the owners are obligated to pay operating costs as well as replacement and refurbishment costs.   Operating costs are defined to include “all administrative, maintenance, repair and replacement costs.”


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## Northwynd CC

An owner asked for a "cliff notes" of the situation.  While our answer turned out longer than we hoped, we thought it was a good exercise so we are posting it here where it is not cluttered.



Rider Nation Rocks said:


> Looks like  someone from Sunchaser, Northwynd or wherever has listed their 20 mis conceptions on another thread.. Makes for a long night of reading and answers some questions but also creates a whole lot more.. you need to go back to the Canadian Forums and find the posts from Sunchaser customer service. As always the road to information  on this is a muddy messy trail. Deadline sucks and more leverage being applied. if the poster of the Sunchaser thread reads this a roadmap may have been helpful.. Also how do the number of cancellations at this time compare to the number choosing to stay.



Hello Rider Nation Rocks.

Thank you for your inquiry. We will do our best to provide you a short answer.

We characterize this situation as a simple issue with a lot of “white noise” because of the history of the resort.

Under any contract, there are only two questions:

1)	What does the contract say?
2)	Has either party breached the contract?

Justice Loo dealt with #1 by providing everyone three very important conclusions:

1)	The timeshare owners are responsible for all costs of operating the resort including the renovation fee.
2)	The contracts do not entitle the timeshare owners a right of termination which means any cancellation must be on terms acceptable to Northmont.
3)	Our responsibility is to act reasonably in the operation of the resort and the renovation plan is a reasonable plan.

That is all really simple, but for those delinquent owners who are unhappy with the answer, it leaves question #2 which is where it gets messy because of two major misconceptions:

1)	Any breach is a repudiary breach: We address this as Misconception #3 and recommend everyone read it. Deliquent owners seem to be turning over every rock for dirt and looking in every closet for a skeleton incorrectly believing that any “gotcha” lets them walk away, but that is not how the law works. Earlier in this thread, there was even a suggestion we’ve done something wrong because we emailed an owner their statement because they are "supposed to get it in the mail."

2)	Northmont is responsible for Fairmont’s actions: We address this as Misconception #9 and recommend everyone read it as well. 

Let us deal with Fairmont for a minute because it is the lightning rod. We are not here to defend Fairmont. On the contrary, our unitholders are probably as mad as or madder at Fairmont than you are (see Misconception #4). Fairmont did not just put you in this situation, it put all of the employees and it put our 800 unitholders in it too. Unfortunately, Fairmont went bankrupt.

We are all trying to clean up the situation that was put in our lap. Nobody “deserves” this situation, but that doesn’t change the circumstances. Our job is to make the best of a bad situation and we are trying to do that. Being mad at Fairmont or worse, being mad at us because being mad at Fairmont is futile, only makes the situation worse.

This is why we announced the renovation a year ago. We realized many owners would need to go through a period of being mad, then understanding, and then hopefully accepting. We hoped five months would be long enough for that to happen and it did for most owners. We believe 90% of our owners had accepted (not liked, we don’t expect everyone to like it) the situation in May. However, many wanted confirmation that our interpretation of the contract was valid before making a decision.

From our experience talking to thousands of owners, those who are still in the mad phase remain there because they cannot get past Fairmont’s actions. We believe they are mad at us as surrogates for Fairmont.

Back to the issue at hand. We have not seen any evidence of wrongdoing by Northmont which is no surprise to us because we do not have any skeletons. We may not be operating the resort perfectly, but no company is perfect. Justice Loo confirmed our responsibility is to act reasonably and we have and will happily stand up in court, in front of the media, or in response to any owner stating we have done so without hesitation.

Delinquent owners who continue to fight this now have to win three, yes three, legal battles if they want to succeed in getting out of their contract. They have to win the appeal. Then they have to win the lawsuit when Northmont sues them for default, and then they have to win Northmont’s appeal of that suit.

In each case, they have to convince a judge or panel of judges that Justice Loo of the Supreme Court of BC was wrong, Justice Romaine of the Alberta Court of Queen’s Bench was wrong, and that Northmont is in breach of contract at a repudiary, not just curable, level.

While we do not think this has any chance of succeeding because we think both judges were correct and do not think we are in breach of contract, even the most militant detractor cannot believe the likelihood of victory is more than 50%. 

You have to ask yourself if spending three years (because it will probably take at least that long to fight) and whatever amount in legal fees it takes, is worth it for a fight that has a very low chance of success and very high cost (three years of maintenance fees and interest, the renovation fee, and legal costs) of failure. 

Also, please do not take our word for it. Someone will probably say, and correctly, that we benefit from not fighting. We do and we don't hide that fact. Everyone loses in unnecessary legal battles except the lawyers, but there is no doubt we are conflicted. Don't take our word for it, or the word of any other conflicted party. The best way to answer the question is to ask an independent advisor/friend/family member/lawyer. Ask someone who has no vested interest in the outcome to give you an honest opinion free of the emotion of the situation.

We apologize; this did not turn out short at all. However, we hope it helps.


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## ERW

Northwynd - will you please comment on the statement quoted most recently in the main forum discussion regarding Fairmont? It is in regards to the use of cancellation funds to pay back investors versus using it for renovations.


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## Notwhatweweresold

*Court of Appeal OVERTURNED Justice Loo's decision!*

Note that a panel of three justices granted the appeal and dismissed Justice Loo's decision. Northwynd/Northmont do NOT have legal authority to charge timeshare investors the renovation fee or the cancellation fee!


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## Judythreetimes

*Misconception #4044*

You are all a bunch of scam and con artists. Your time is almost up. Karma..headed your way.


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## SkTraveler

*Sunchaser*

It is very confusing when I read that Fairmont/Sunchaser has closed their resorts in Costa Maya, PV, Hawaii and Nevada because of finances to believe that the REIT is not just doing this to recoup their money. Also, when Northwynd knew that they were in desperate straits why did they sell us the deal of perpetuity as that seems that they were just gaining more money from us. The information that one gets from the internet about Sunchaser having so many properties is now not the truth as well. The dedicated number that we have for calling RCI will soon disappear I am sure, when they realize what properties Sunchaser actually has and the number of people not staying with the resort. Now we are paying off that sum while being hit with greater costs at the resort and rising maintenance fees each year which are totally out of control and rising more than they should. Also, it says that the REIT is disbanding. Why is that? Is it that those members have now received their finances back from the money that was paid as reno fees?

We purchased two timeshare units right at the end of Sunchaser's sales pitches that were repossessed from owners who did mot pay their maintenance fees. Are those delinquent owners having to pay Northwynd now as well or just the unlucky people who fell into your pay trap?:annoyed:


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## Spark1

Northwynd CC said:


> Misconception #2: Various government organizations/media are looking into this supposed fraud
> 
> Northwynd talked to the RCMP on this issue when it was first raised.  The conversation lasted 15 seconds.  The RCMP asked what the issue was and we told them we sent a bill to owners under their contract and some don’t want to pay.  The RCMP said thank you and has not contacted us since because the RCMP doesn’t investigate contract disputes.
> 
> CTV Edmonton (news television channel) contacted Service Alberta about the renovation fee and interviewed them on camera.  Service Alberta’s response was if you don’t pay attention to the contract you signed, you may discover you are responsible for fees you didn’t expect.  Service Alberta has never contacted us directly because they had sufficient information from CTV to know this is just a contract issue.
> 
> The superintendent of real estate in British Columbia contacted us and we provided all the information that was asked.  He said thank you very much and has not contacted us since.
> 
> We have accepted every media interview request we have received.  We have been on television with CTV, CBC, and GlobalTV.  We welcome any media request because it is important to get the true story out and squash the misconceptions.  Every media interviewer we have talked with has understood the situation and commiserated with the tough nature of the situation.
> 
> Contracts are a matter of interpretation and the only person entitled to definitively decide what a contract says is a judge which is exactly what Justice Loo has done.



Northwynd you tell the RCMP and Service Alberta what ever you want to make yourself feel much better about stealing money from the time owners. You know if it was that easy you would not had to petition the Supreme Court of BC to get what you thought was the right interpretation of the time owners agreement. You also know in our agreement that there was no cancellation or capital expenditures in our agreement. I am going to tell you the same thing Service Alberta told you,pay attention what is signed and if it was that easy you would not had to write up another agreement for the legacy for life owners. We are going to have our day in court and Norton Rose will not intimidate us time owners.


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## SentimentalLady

*Join the Litigation Group*

If you're an unhappy "owner" - you may wish to get more information about the Litigation Group.....whether you paid to stay, or paid to go, or haven't paid.

Some background:   http://www.sunchasertimeshareowners.com/

For more information, contact Geldert Law at info@geldertlaw.com


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