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UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
In re: Peregrine Financial Group, Inc, Debtor. Chapter 7 Case No. 12-27488 Hon. Carol A. Doyle Hearing date: Sept. 11, 2012 Hearing time: 10:00 a.m.

NOTICE OF MOTION
PLEASE TAKE NOTICE that on September 11, 2012, at 10:00 a.m., or as soon thereafter as counsel may be heard, the undersigned shall appear before the Honorable Carol A Doyle, or any judge sitting in her stead in Courtroom 742 of the United States Bankruptcy Court for the Northern District of Illinois, Eastern Division, Everett McKinley Dirksen Building, 219 South Dearborn Street, Chicago, Illinois 60604 and then and there present Urbina’s Motion for Order Directing the Trustee to Release Non-Estate Property or to Abandon, a copy of which is attached hereto and hereby served upon you.

Dated: August 30, 2012

Respectfully submitted, Jeffrey Urbina and Gaye Hill By: /s/ David P. Holtkamp One of Their Attorneys

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William J. Factor (6205675) Sara E. Lorber (6229740) David P. Holtkamp (6298815) THE LAW OFFICE OF WILLIAM J. FACTOR, LTD. 105 W. Madison Street, Suite 1500 Chicago, IL 60602 Tel: (847) 239-7248 Fax: (847) 574-8233 Email: wfactor@wfactorlaw.com slorber@wfactorlaw.com dholtkamp@wfactorlaw.com

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CERTIFICATE OF SERVICE
I, David Holtkamp, an attorney, thereby certify that, on August 30, 2012, pursuant to Section II, B, 4 of the Administrative Procedures for the Case Management/Electronic Case Filing System and Fed.R.Civ.P. 5(a), I caused copies of the foregoing Notice of Motion and accompanying Motion to be served electronically through the Court’s Electronic Notice for Registrants on the following persons identified as Registrants in the captioned case:
                       

Kimberly A Bacher kbacher@shawgussis.com, bharrington@shawgussis.com Salvatore A Barbatano sbarbatano@shawgussis.com, jhampton@shawgussis.com Lawrence M. Benjamin lbenjamin@ngelaw.com, rwills@ngelaw.com Stephen T. Bobo sbobo@reedsmith.com Ira Bodenstein iratrustee@shawgussis.com, IL29@ecfcbis.com;sdelamora@shawgussis.com David E Cohen dcohen@fishercohen.com Brooke E Conner bconner@vedderprice.com, ecfdocket@vedderprice.com;ecarlson@vedderprice.com Michael M. Eidelman meidelman@vedderprice.com, ecfdocket@vedderprice.com Robert M Fishman rfishman@shawgussis.com Geoffrey S. Goodman ggoodman@foley.com, egreen@foley.com;khall@foley.com Ava Gould agould@cftc.gov Joshua M Grenard jgrenard@mayerbrown.com, courtnotification@mayerbrown.com Allen J Guon aguon@shawgussis.com, sdelamora@shawgussis.com John W Guzzardo jguzzardo@shawgussis.com, mcarter@shawgussis.com Stephanie K. Hor-Chen shor@vedderprice.com, ecfdocket@vedderprice.com Kevin M Hyde khyde@shawgussis.com, jhampton@shawgussis.com Thomas S Kiriakos tkiriakos@mayerbrown.com, Courtnotification@mayerbrown.com James C. Koutoulas jk@typhoncap.com Vincent E. Lazar vlazar@jenner.com, lyap@jenner.com;mmatlock@jenner.com;docketing@jenner.com Randall M Lending rlending@vedderprice.com, trobinson@vedderprice.com;ecfdocket@vedderprice.com Jennifer M. Muchoney jmuchoney@pfgbest.com Mark L Radtke mradtke@shawgussis.com, bharrington@shawgussis.com Richard A. Saldinger rsaldinger@shawgussis.com Jessica M Scheller jscheller@shawgussis.com, kdevries@shawgussis.com

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    

Sean T Scott stscott@mayerbrown.com Scott A Semenek scott.semenek@faegrebd.com, melanie.senesac@faegrebd.com Anne W Stukes astukes@cftc.gov William W Thorsness wthorsness@vedderprice.com, ecfdocket@vedderprice.com Thomas C. Wolford twolford@ngelaw.com /s/ David Holtkamp

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UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
In re: Peregrine Financial Group, Inc, Debtor. Chapter 7 Case No. 12-27488 Hon. Carol A. Doyle Hearing date: Sept. 11, 2012 Hearing time: 10:00

MOTION FOR ORDER DIRECTING TRUSTEE TO RELEASE NON-ESTATE PROPERTY OR TO ABANDON
Jeffrey Urbina and Gaye Hill (collectively “Urbina”) respectfully requests that this Court enter an order substantially in the form submitted herewith, directing the chapter 7 trustee (the “Trustee”) for the bankruptcy estate (the “Estate”) of above captioned debtor (the “Debtor”) to release non-estate property or to abandon its limited interest. INTRODUCTION 1. Prior to the Petition Date, the Debtor, acting as the agent of Urbina,

purchased certain gold coins from a third party on behalf of Urbina. The Debtor did not obtain an interest in the gold coins and it was never in possession of the coins. After purchase, the coins were stored at a depository until they could be shipped to Urbina. And, in fact, the gold coins were transferred to a carrier for shipment to Urbina. However, prior to actual shipment, the Debtor filed for bankruptcy and the carrier halted delivery to Urbina. The carrier is awaiting instruction from the Trustee regarding whether it can complete shipment to Urbina, but the Trustee will not provide such instructions without a Court order authorizing the release of the coins, thereby necessitating this motion.

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2.

As discussed more fully below, the Estate has no interest in the

coins, or if it does have an interest, it holds legal title only, in which case the coins are of no value to the Estate and the Trustee should be directed to abandon the coins to Urbina – the beneficial owner. BACKGROUND 3. On June 12, 2012, Urbina opened a customer account (the

“Account”) with the Debtor. See Precious Metal Account Agreement, dated 6/12/2012 (the “Agreement”), attached as Exhibit A. 4. On June 18, 2012, Urbina funded the Account by wire transferring

$250,000.00 to the Debtor. See Customer Statement – Period Ending 6/18/2012 (the “June 18 Statement”), attached as Exhibit B. Contemporaneously therewith, the Debtor split the Account into cash and “Metals Market Value.” Id. The Metals Market Value was $238,778.82, signifying that the Debtor was to use that amount to purchase 7 sleeves of American Eagle Gold Coins (the “Coins”), each sleeve containing 20 coins, for a total of 140 coins. The purchase price, including the Debtor’s commission for executing the purchase on Urbina’s behalf, was $1,705.56 for each coin.1 The remaining cash balance was $11,221.18. Id. 5. On or before June 28, 2012, the Debtor purchased the Coins from a

third party, likely Prudential Bache Commodities LLC (now Jefferies Bache), using Urbina’s funds and on Urbina’s behalf. See Customer Statement – Period Ending 6/28/2012 (the “June 28 Statement”), attached as Exhibit C. The Debtor never took physical possession of the Coins. See id.(showing that the Coins remained warehoused at Prudential Bache Commodities LLC).

1

$1,705.56 x 140 = $238,778.82.

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6.

At the point that the Debtor executed the purchase of the Coins on

Urbina’s behalf the Metal Market Value in the Account was decreased to zero. Id. The cash balance remained unchanged. Id. 7. Throughout the month of July, Urbina executed no transactions

with PFG and the Account remained with a cash balance of $11,221.18, and a Metals Market Value of zero. See Customer Monthly Statement – July 2012 (the “July Statement”), attached as Exhibit D. 8. Chicago. 9. On July 10, 2012 (the “Petition Date”), the Debtor filed a voluntary Sometime after PFG executed the purchase of the Coins on Urbina’s

behalf, they were transferred to Brinks, Inc. for transport to Urbina’s home in

petition for relief under chapter 7 of the Bankruptcy Code, 11 U.S.C. § 101, ff. (the “Bankruptcy Code”). 10. As of the Petition Date, Brinks had possession of the Coins and

continues to hold the Coins. Urbina is informed that due to the Debtor’s bankruptcy filing, Brinks will not complete shipment of the Coins to Urbina without direction from the Trustee and the Trustee will not provide such direction without an order of the Court. 11. Although Urbina brings this motion on his own behalf and not

jointly with the Trustee, he foresees that he and the Trustee will be able to dispose of this motion by submitting an agreed order and stipulation. JURISDICTION AND VENUE. 12. This Court has jurisdiction to hear this matter and enter final order

granting the requested relief herein pursuant to 28 U.S.C. §§ 157 and 1334 and Interanl Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois.

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13.

Venue is proper in the Northern District of Illinois pursuant to 28

U.S.C. §§ 1408 and 1409. BASIS FOR RELIEF. 14. Urbina is entitled to relief pursuant to §§ 541(a), (d), 105, 554 of the

Bankruptcy Code and Bankruptcy Rule 6007(b). 15. Section 541 provides that the bankruptcy estate is comprised of “all

legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Save a few exceptions not applicable here,2 the trustee steps into the shoes of the debtor at the time it filed for bankruptcy. In re Sanders, 969 F.2d 591, 593 (7th Cir. 1992). Filing a bankruptcy petition does not expand or change a debtor's interest in an asset; it merely changes the party who holds that interest. Further, a trustee takes the property subject to the same restrictions that existed at the commencement of the case. To the extent an interest is limited in the hands of a debtor, it is equally limited as property of the estate. Id. Thus, the estate takes the debtor’s interests in property, nothing more, nothing less. 16. The extent of a debtor’s interest in property on the petition date is

defined by state law, as are nearly all property interest in bankruptcy. In re Iowa R. Co., 840 F.2d 535, 536 (7th Cir. 1988). Therefore, if a debtor has divested itself of all or part of an interest in property, or if it was never vested with an interest in the first place, must be determined by application of state law. Id.

2 Defenses that are personal against the debtor are not effective against the estate. 5541 Collier on Bankruptcy ¶ 541.03.

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17. 21. I.

The parties here, PFG and Urbina, have agreed that the laws of the

state of Illinois shall govern their relationship. See Agreement at ¶¶ 10, 13,

The Debtor Never Had an Interest In the Coins. 18. The Agreement and surrounding circumstance make it clear that

the Debtor was only acting as agent for the Urbina in purchasing the Coins on Urbina’s behalf and never had an interest in the Coins. 19. “An agent is one who undertakes to manage the affairs of another,

on the authority and for the account of the latter, who is called the principal, and to render an account to the principal.” Eychaner v. Gross, 202 Ill. 2d 228, 258 (Ill. 2002). An agency relationship is created “by a principal's manifestation to an agent that, as reasonably understood by the agent, expresses the principal's assent that the agent take action on the principal's behalf.” Restatement of the Law, Third Agency, § 3.01. 20. An agent has “authority to take action designated or implied in the

principal's manifestations to the agent and acts necessary or incidental to achieving the principal's objectives, as the agent reasonably understands the principal's manifestations and objectives when the agent determines how to act.” Id at § 2.02(1). As the principal gives the agent power to act on his behalf he also retains control over the actions of the agent. Knapp v. Hill, 276 Ill. App. 3d 376, 380 (1st Dist. 1995). 21. Therefore, a principal may ask its agent to acquire or manage

property on its behalf while maintaining the right to control the agent. See Eychaner v. Gross, 202 Ill. 2d at 258. There is, however, a clear distinction between the delegation of duties to the agent to acquire or manage property for the principal and the transfer of property rights by the principal to the agent. Id. In short, an “agency is not a trust.” Id. An agent takes no ownership

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rights from the principal while managing the principal’s property, a trust on the other hand, transfers legal title to a trustee, with equitable title remaining. See Id. The type of relationship created depends upon the intent of the parties, as shown by the surrounding circumstances. Id. 22. The circumstance here point to a principal-agent relationship.

Urbina agreed with the Debtor for the Debtor to purchase the Coins on Urbina’s behalf with Urbina’s funds, and to have the Coins delivered to Urbina upon his direction. The Debtor was not the owner of the Coins prior to the purchase and so Urbina did not purchase the Coins from the Debtor. The Debtor went out onto the market and purchased the Coins from a third party and never took physical possession of the Coins. The Debtor was merely a purchasing agent for the Coins, and for the execution of those duties the Debtor made a commission. As the Debtor was merely acting as an agent to locate and purchase the Coins on Urbina’s behalf, PFG never obtained any sort of interest in the property. All interest vested in Urbina as soon as the Coins were purchased prepetition. II. Even if the Debtor Had an Interest in the Coins, the Debtor Divested Itself of that Interest Prepetition. 23. In the event that the Debtor at one time had an interest in the

Coins, the Debtor divested itself of that interest when the Coins were delivered to Brinks prepetition for shipment to Urbina. 24. Illinois has adopted the Uniform Commercial Code (as enacted in

Illinois, the “UCC”) to govern certain sales contracts. See 810 ILCS 5/2-101, et seq. Pursuant to the UCC, if the “contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment,” i.e., upon delivery to the carrier. 810 ILCS 5/2-401(2)(a). This is what is referred

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to as a “shipment” contract, as opposed to a “destination” contract, which requires shipment to a particular place. See James J. White & Robert S. Summers, Uniform Commercial Code § 5-2 (5th ed. 2000). 25. Where the contract is ambiguous as to whether it is a shipment

contract or a destination contract, the UCC provides that “under this Article the ‘shipment’ contract is regarded as the normal one and the ‘destination’ contract as the variant type.” Uniform Commercial Code 2-503, Comment 5. “In sum, the parties, in a contract contemplating carriage, must explicitly agree to a destination contract by using ‘FOB buyer’s place of business’ or equivalent language. Otherwise, the contract will be a shipment contract.” James J. White & Robert S. Summers, Uniform Commercial Code § 5-2 (5th ed. 2000)(emphasis in original). And, as stated above, under a shipment contract, title passes upon delivery to the carrier. 26. Here, the Agreement specifically provides under the heading

“Delivery” that: You have the choice of having your metals sent to you insured or stored at an independent depository, where your investment is insured. If you choose shipment, your purchase will be shipped by the independent depository after your purchase has been paid. The independent depository will choose the method of delivery and fully insure the order. If you choose storage, you will be responsible for paying the depository corresponding storage cost. Storage cost is billed semi-annually. Agreement at ¶ 7. Therefore, if a purchaser chooses to have the metals shipped, the independent depository has the sole right to designate the method of shipment and must insure the metal during shipment. 27. As the Agreement does not explicitly state that it is a destination

contract by using “FOB destination” language or equivalent, this contract is deemed to be a shipment contract as a matter of law. As such, title of the

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Coins passed to Urbina at the time they were delivered to Brinks, which was prior to the Petition Date. Therefore, title to the Coins passed to Urbina before the Coins could become property of the estate under § 541. III. If the Debtor Retained an Interest in the Coins it is a Legal Interest Only and Holds the Coins in Trust. 28. Even if the Debtor retained an interest in the Coins following

delivery of the coins to Brinks, such interest is limited to legal title. The Debtor has no equitable interest in the Coins because the Debtor merely holds the Coins in trust for Urbina. 29. Section 541(d) makes it clear that when the debtor only held legal

title in property as trustee for another, under an express, constructive, or resulting trust, the bankruptcy estate assumes that position, and takes no additional rights to the property. See 5 Collier on Bankruptcy ¶ 541.28. Section 541(d) specifically provides that: Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest, … becomes property of the estate under subsection (a)(1) or (2) of this section only to the extent of the debtor’s legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold. 11. U.S.C. § 541(d). This section merely clarifies that the estate only take that interest that the debtor had on the petition date, and if that interest was only a legal interest and not an equitable interest, the filing a petition does not change that. See 124 Cog Rec H111096 (daily ed. Sept. 28, 1978; remarks of Rep. Edwards); 5 Collier on Bankruptcy ¶ 541.28. 30. Congress’ intent in excluding equitable interest not held by the

debtor prepetition under §5 41(d) is further explained by the House Report on the section, which states:

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Situations occasionally arise where property ostensibly belonging to the debtor will actually not be property of the debtor, but will be held in trust for another. For example, if the debtor has incurred medical bills that were covered by insurance, and the insurance company had sent the payment of the bills to the debtor before the debtor had paid the bill for which the payment was reimbursement, the payment would actually be held in constructive trust for the person to whom the bill was owed. In re Columbia Gas Sys., 997 F.2d 1039, 1059 (3d Cir. 1993) (emphasis in original) citing H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 368 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6324. 31. “This insurance example evidences that Congress intended that

when a debtor is a mere conduit for funds to travel from one party to another, it lacks an equitable interest in the monies.” Id. That, however, is not to say that there is some federal common law of trusts, whether or not a trust is imposed is still a matter of state law. Marrs-Winn Co. v. Giberson Elec. (In re Marrs-Winn Co.), 103 F.3d 584, 591 (7th Cir. Ill. 1996); In re Iowa R. Co., 840 F.2d at 542. 32. Here, either a resulting trust was created by the intent of the

parties, or a constructive trust must be imposed to prevent unjust enrichment. Under either scenario, the Estate does not have an equitable interest in the Coins and the Trustee is obligated to abandon the Coins to Urbina. A. 33. A Resulting Trust Was Created by the Intent of the Parties. Under Illinois law, the “doctrine of resulting trust recognizes and

gives effect to the actual mutual intent of the parties. By contrast, the doctrine of constructive trust is an equitable remedy based on fairness. H.K. ElectroChem. Works, Ltd. v. Less, 539 F.3d 795, 800 (7th Cir. 2008).

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34.

A resulting trust arises when the parties agree and it is their

intention that the party that takes title or possession is not vested with the beneficial interest. Id. The court must look to the circumstances before and after the transaction to glean the intent of the parties. Id. The typical resulting trust occurs when one parties pays for property while another takes title or possession. Dunham v. Kisak, 192 F.3d 1104, 1108 (7th Cir. 1999). In such a circumstance there is a presumption that the party with possession or title merely holds the property as trustee for the party that made the payment. Key v. Key, 443 N.E.2d 812, 814 (4th Dist. 1982) citing Bowman v. Pettersen, 102 N.E.2d 787 (Ill. 1951); In re Iowa R. Co., 840 F.2d at 544. 35. If title did not pass to Urbina prepetition, that is exactly what

happened here. Urbina furnished the funds to purchase the Coins and then the Debtor, and in turn the Estate, acquired title interest over them. 36. The parties intended for the Debtor to merely purchase the Coins on

Urbina’s behalf using Urbina’s funds and then cause them to be sent to Urbina at Urbina’s direction. Urbina directed that the Coins be shipped to Urbina and the Coins were delivered to Brinks for shipment. The Debtor and Urbina never intended the Coins be owned by the Debtor. At most, the Debtor was merely a conduit through which the Coins were to pass on their way to their owner, Urbina. These circumstances not only entitle Urbina to the presumption, they prove the presumption to be true. 37. As the Coins are being held in trust for Urbina, they cannot be used

by the Trustee to satisfy the Debtor’s or the Estate’s obligations. 5 Collier on Bankruptcy ¶ 541.28[6]. As a result, the Coins have no value to the Estate. Nevertheless, if the Trustee continues to exercise control over the Coins by asserting a title to the Coins, the Estate must assume the burdens that go along with that position. Id. For example, the Trustee must maintain insurance on the Coins and pay any storage fees. As the legal title that may be - 14 -

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asserted by the Estate is more of a burden then a benefit, it is proper for the Trustee to abandon legal title and possession of the Coins to Urbina. Id. (stating the “if [the legal title] rights are not valuable, the trustee may abandon them . . . along with possession of the trust corpus, pursuant to section 554”). 38. Pursuant to Bankruptcy Rule 6007(b) Urbina seeks an order

directing such relief. B. 39. In the Alternative, A Constructive Trust Must be Imposed by the Court to Prevent Unjust Enrichment. A constructive trust must be imposed in the event that this Court

declines to hold that a resulting trust was created by the parties. A constructive trust is not created by a voluntary agreement or through the intent of the parties, but instead imposed by the court as a matter of equity. H.K. Electro-Chem. Works, 539 F.3d at 800. The “constructive trust concept, referred to as the formula through which the conscience of equity finds expression, has been invoked whenever the legal title to property has been obtained under circumstances which render it unconscionable for the holder to retain and enjoy the beneficial interest.” In re Estate of Moses, 13 Ill. App. 3d 137, 148 (1st Dist. 1973) (citation omitted). 40. A constructive trust arises “where a person holding title to property

is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” In re Iowa R. Co., 840 F.2d at 545. Therefore, constructive trust is a corollary to a claim for unjust enrichment. See Restatements of the Law 3d, Restitution and Unjust Enrichment, § 55. Unjust enrichment prevents the holder from keeping the property unjustly, and constructive trust, likewise prevents the holders creditors from attaching the property unjustly maintained. See id.

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41.

Thus, the question is whether the estate would be unjustly enriched

if it were allowed to maintain the Coins. It certainly would. The Debtor agreed that it would act as a type of purchasing agent to purchase the Coins for Urbina with Urbina’s funds. It would be unjust to allow the Estate to take ownership of the Coins when Urbina provided all the funds, plus a commission, to purchase the Coins. 42. Further, it is the “obligation of a constructive trustee is to surrender

the constructive trust property to the claimant, on such conditions as the court may direct.” Restatements of Restitution 3d, § 55. Therefore, the Trustee has the duty under the doctrine of constructive trust to abandon any interest to Urbina. Therefore, again, Urbina requests that this Court enter and order directing the Trustee to abandon any interest that the Estate may have to Urbina. NOTICE 43. Pursuant to Bankruptcy Rule 6007, if applicable, Urbina requests

that this Court deem sufficient 12 days notice to the U.S. Trustee, and all Registrants in the case to receive electronic notice. As the property at issue is most likely not even property of the estate, the notice requirements under Rule 6007 do not apply. In the event that this Court believes that Rule 6007 does apply, notice is sufficient under the circumstances. CONCLUSION WHEREFORE, for the foregoing reasons, Urbina requests that this Court enter an order (a) directing the Trustee to cause the Coins to be released to Urbina as non-estate property; or (b) directing the Trustee to abandon the Estate’s limited legal interest in the Coins to Urbina, and / or (c) all other relief that this Court deems just under the circumstances.

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Dated: August 30, 2012

Respectfully submitted, Jeffrey Urbina and Gaye Hill By: /s/ David P. Holtkamp One of Their Attorneys

William J. Factor (6205675) Sara E. Lorber (6229740) David P. Holtkamp (6298815) THE LAW OFFICE OF WILLIAM J. FACTOR, LTD. 105 W. Madison Street, Suite 1500 Chicago, IL 60602 Tel: (847) 239-7248 Fax: (847) 574-8233 Email: wfactor@wfactorlaw.com slorber@wfactorlaw.com dholtkamp@wfactorlaw.com

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