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Engrossed Version Senate Bill 369 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2017 regular session

Engrossed

Committee Substitute

for

Senate Bill 369

By Senators Sypolt, Miller, Boso, Maroney and Smith

[Originating in the Committee on Energy, Industry, and Mining; reported on March 25, 2017]

 

 

A BILL to amend and reenact §11A-3-19, §11A-3-21, §11A-3-23, §11A-3-52, §11A-3-54 and §11A-3-56 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto four new sections, designated §11A-3-23a, §11A-3-23b, §11A-3-58a and §11A-3-58b; and to amend and reenact §11A-4-4 of said code, all relating to permitting surface owners to purchase the mineral interests that lay below the property when the mineral interest becomes subject to a tax lien; permitting mineral owners to purchase the surface interest that lies above the mineral interest when the surface tract become subject to  establishing procedures; requiring notice; establishing the purchase prices; establishing nonrefundable $20 administrative fee; providing a procedure if more than one surface owner seeks to purchase the delinquent mineral interest; modifying notices to redeem that are sent to property owners; and providing remedies relating to tax sales.

Be it enacted by the Legislature of West Virginia:


That §11A-3-19, §11A-3-21, §11A-3-52, §11A-3-54 and §11A-3-56 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto four new sections, designated §11A-3-23a, §11A-3-23b, §11A-3-58a and §11A-3-58b, all to read as follows:


ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE AND UNAPPROPRIATED LANDS.

§11A-3-19. What purchaser must do before the deed can be secured.


(a) At any time after October 31 of the year following the sheriff’s sale, and on or before December 31 of the same year, the purchaser, his or her heirs or assigns, in order to secure a deed for the real estate subject to the tax lien or liens purchased, shall:

(1) Prepare a list of those to be served with notice to redeem and request the State Auditor to prepare and serve the notice as provided in sections twenty-one and twenty-two of this article;

(2) When the real property subject to the tax lien is classified as Class II property, provide the State Auditor with the physical mailing address of the property that is subject to the tax lien or liens purchased;

(3) Provide the State Auditor with a list of any additional expenses incurred after January 1 of the year following the sheriff’s sale for the preparation of the list of those to be served with notice to redeem including proof of the additional expenses in the form of receipts or other evidence of reasonable legal expenses incurred for the services of any attorney who has performed an examination of the title to the real estate and rendered written documentation used in the preparation of the list of those to be served with the notice to redeem;

(4) Deposit with the State Auditor a sum sufficient to cover the costs of preparing and serving the notice;

(5) Present the purchaser’s certificate of sale, or order of the county commission where the certificate has been lost or wrongfully withheld from the owner, to the State Auditor;

(6) If the interest in real estate subject to the tax lien includes minerals, but not an interest in the surface, except an interest for the purpose of developing the minerals, the list shall include the last known name and mailing address of the taxpayer who receives a tax ticket for the surface tract that lie above the mineral tract subject to the tax lien; and

(7) If the interest in real estate subject to the tax lien includes surface, but not an interest in the minerals, the list shall include the last known name and mailing address of the taxpayer who receives a tax ticket for the mineral property underlying the surface property subject to the tax lien.

If the purchaser fails to meet these requirements, he or she shall lose all the benefits of his or her purchase.

(b) If the person requesting preparation and service of the notice is an assignee of the purchaser, he or she shall, at the time of the request, file with the State Auditor a written assignment to him or her of the purchaser’s rights, executed, acknowledged and certified in the manner required to make a valid deed.

(c) Whenever any certificate given by the sheriff for a tax lien on any land, or interest in the land sold for delinquent taxes, or any assignment of the lien is lost or wrongfully withheld from the rightful owner of the land and the land or interest has not been redeemed, the county commission may receive evidence of the loss or wrongful detention and, upon satisfactory proof of that fact, may cause a certificate of the proof and finding, properly attested by the State Auditor, to be delivered to the rightful claimant and a record of the certificate shall be duly made by the county clerk in the recorded proceedings of the commission.

(d) No deed to a subsequent bona fide purchaser for value from the purchaser, or an owner substituted for the purchaser, may be set aside for failure of the purchaser to comply with this section.

§11A-3-21. Notice to redeem.


(a) Whenever the provisions of section nineteen of this article have been complied with, the State Auditor shall prepare a notice in form or effect as follows:

To ___________________________________.

You will take notice that _______________, the purchaser (or _____________, the assignee, heir or devisee of _______________, the purchaser) of the tax lien(s) on the following real estate, __________________, (here describe the real estate for which the tax lien(s) thereon were sold) located in ___________________, (here name the city, town or village in which the real estate is situated or, if not within a city, town or village, give the district and a general description) which was returned delinquent in the name of ________________, and for which the tax lien(s) thereon was sold by the sheriff of __________________ County at the sale for delinquent taxes made on the ____________ day of _____________, 20____, has requested that you be notified that a deed for such real estate will be made to him or her on or after April 1, 20 ____, as provided by law, unless before that day you redeem such real estate. The amount you will have to pay to redeem on the last day, March 31, will be as follows:

Amount equal to the taxes, interest, and charges due on the date of sale, with interest to March 31, 20 _______ ........ $__________.

Amount of subsequent years taxes paid on the property, since the sale, with interest to March 31, 20 ____ ........ $___________.

Amount paid for title examination and preparation of list of those to be served, and for preparation and service of the notice with interest from January 1, 20 (insert year) following the sheriff’s sale to March 31, 20 ______ ........ $__________.

Amount paid for other statutory costs (describe) _____________________ ........ $___________.

Total ................. $_____________.

You may redeem at any time before March 31, 20 _______________, by paying the above total less any unearned interest.

NOTE: If you have received this notice because you are the owner of an interest in the surface overlaying a mineral interest that was returned delinquent, or an owner of a mineral interest underlying a surface tract that was returned delinquent, you may pay the clerk the amount identified above, plus a nonrefundable $20 administrative fee, before March 31, 20___. If you pay the amount identified above and the property is later redeemed by the owner or a person with a right to redeem, that amount you paid, less the administrative fee, will be refunded to you. If you pay the amount identified above and the property is not redeemed by the owner or a person with a right to redeem, you will be substituted for the purchaser of the tax lien and you may proceed to obtain a deed for the delinquent property. If you and one or more additional surface owners or mineral owners each pay the amount identified above, the surface owners or mineral owners who have made payment shall submit, by April 1, 20___, an agreement dividing the real estate according to your proportionate ownership or any other method or formula agreed to among all of you. If an agreement is not filed, the clerk shall refund the moneys tendered by the surface owners or mineral owners, less the administrative fees, and none of you will be substituted for the purchaser of the tax lien.

Given under my hand this _____ day of __________, 20 ____.

_________________________________________________________________

State Auditor, State of West Virginia

(b) The State Auditor for his or her service in preparing the notice shall receive a fee of $10 $50 for the original and $2 for each copy required. Any additional costs which must be expended for publication, or service of the notice in the manner provided for serving process commencing a civil action, or for service of process by certified mail, shall be charged by the State Auditor. All costs provided by this section shall be included as redemption costs and included in the notice described in this section.

§11A-3-23a. Surface owner substitution for purchaser.


(a) If the interest in real estate subject to the tax lien includes minerals, but not an interest in the surface, except an interest for the purpose of developing the minerals, then prior to March 31 of the year following the sale, the surface owner of the surface tract overlying the mineral property subject to the tax lien being sold may pay the clerk: (1) The amount that would be required for redemption pursuant to section twenty-three of this article; (2) the lesser of either the amount required for redemption pursuant to said section or $3,000; and (3) a nonrefundable $20 administrative fee. Upon payment, the clerk shall issue the surface owner a certificate of substitution and send a copy to the purchaser. If more than one surface owner makes this payment to the clerk, the clerk shall issue each a certificate of substitution and send copies of the certificates of substitution to the other substituted surface owners in addition to the purchaser.

(b) If the property is redeemed by the owner or a person with a right to redeem, the clerk shall refund the moneys paid by the surface owner, less the administrative fees.

(c) If the property is not redeemed by the owner or a person with a right to redeem, and if only one surface owner has received a certificate of substitution, then the clerk shall send the amount paid by the surface owner to the purchaser, less the $20 administrative fee, and record the certificate of substitution. That surface owner enjoys the full rights and duties of the purchaser.

(d) If more than one surface owner pays the clerk the appropriate amount, the surface owners shall submit an agreement dividing the property according to their proportionate shares of ownership in the overlying surface, or another mutually agreeable method or formula approved by all of them, by April 1 of the year following the tax sale. No deed may be issued before April 1 of the year following the tax sale. Unless otherwise provided by written agreement between the substituted surface owners, each surface owner’s interest in the delinquent mineral property shall be equal to their pro rata share of surface acreage overlying the delinquent mineral property: Provided, That if more than one owner of an undivided interest in the same tract pays the clerk the appropriate amount, his or her share shall be the total acreage of the undivided tract divided by the number of owners of the tract who have also paid the clerk: Provided, however, That the clerk shall refund that portion of moneys which exceeds the amount required for substitution in subsection (a) of this section according to the substituted surface owners’ proportionate interest in the delinquent mineral property. If an agreement is filed, then the clerk shall make an amended certificate dividing the property according to their respective interests and refund any remaining moneys paid by them according to their agreed interests. If no agreement is filed, the clerk shall refund the moneys paid by the surface owners, less the $20 administrative fees, and the original purchaser is returned to his or her original position.

§11A-3-23b. Mineral owner substitution for purchaser.


(a) If the interest in real estate subject to the tax lien includes surface property, but not an interest in the underlying minerals, then prior to March 31 of the year following the sale, the owner of the mineral tract underlying the surface property subject to the tax lien being sold may pay the clerk: (1) the amount that would be required for redemption pursuant to section twenty-three of this article; (2) the lesser of either the amount required for redemption pursuant to section twenty-three of this article or $3,000; and (3) a nonrefundable $20 administrative fee. Upon payment, the clerk shall issue the mineral owner a certificate of substitution and send a copy to the purchaser. If more than one mineral owner makes this payment to the clerk, the clerk shall issue each a certificate of substitution and send copies of the certificates of substitution to the other substituted mineral owners in addition to the purchaser.

(b) If the property is redeemed by the owner or a person with a right to redeem, the clerk shall refund the moneys paid by the mineral owner, less the administrative fees.

(c) If the property is not redeemed by the owner or a person with a right to redeem, and if only one mineral owner has received a certificate of substitution, then the clerk shall send the amount paid by the mineral owner to the purchaser, less the $20 administrative fee, and record the certificate of substitution. That mineral owner enjoys the full rights and duties of the purchaser.

(d) If more than one mineral owner pays the clerk the appropriate amount, the mineral owners shall submit an agreement dividing the surface property according to their proportionate shares of ownership in the underlying minerals, or another mutually agreeable method or formula approved by all of them, by April 1 of the year following the tax sale. No deed may be issued before April 1 of the year following the tax sale. Unless otherwise provided by written agreement between the substituted mineral owners, each mineral owner’s interest in the delinquent surface property shall be equal to their pro rata share of mineral acreage underlying the delinquent surface property: Provided, That if more than one owner of an undivided interest in the same tract pays the clerk the appropriate amount, his or her share shall be the total acreage of the undivided tract divided by the number of owners of the tract who have also paid the clerk: Provided, however, That the clerk shall refund that portion of moneys which exceeds the amount required for substitution in subsection (a) of this section according to the substituted mineral owners’ proportionate interest in the delinquent surface property. If an agreement is filed, then the clerk shall make an amended certificate dividing the property according to their respective interests and refund any remaining moneys paid by them according to their agreed interests. If no agreement is filed, the clerk shall refund the moneys paid by the mineral owners, less the $20 administrative fees, and the original purchaser is returned to his or her original position.

§11A-3-52. What purchaser must do before he can secure securing a deed.


(a) Within forty-five days following the approval of the sale by the Auditor pursuant to section fifty-one of this article, the purchaser, his or her heirs or assigns, in order to secure a deed for the real estate purchased, shall:

(1) Prepare a list of those to be served with notice to redeem and request the deputy commissioner to prepare and serve the notice as provided in sections fifty-four and fifty-five of this article;

(2) When the real property subject to the tax lien was classified as Class II property, provide the deputy commissioner with the actual mailing address of the property that is subject to the tax lien or liens purchased; and

(3) Deposit, or offer to deposit, with the deputy commissioner a sum sufficient to cover the costs of preparing and serving the notice;

(4) If the interest in real estate subject to the tax lien includes minerals, but not an interest in the surface, except an interest for the purpose of developing the minerals, the list shall include the last known name and mailing address of the taxpayer who receives a tax ticket for the surface tract that lie above the mineral tract subject to the tax lien; and

(5) If the interest in real estate subject to the tax lien includes surface, but not an interest in the minerals, the list shall include the last known name and mailing address of the taxpayer who receives a tax ticket for the mineral property underlying the surface property subject to the tax lien.

(b) If the purchaser fails to fulfill the requirements set forth in paragraph subsection (a) of this section, the purchaser shall lose all the benefits of his or her purchase.

(c) After the requirements of paragraph subsection (a) of this section have been satisfied, the deputy commissioner may then sell the property in the same manner as he or she sells lands which have been offered for sale at public auction but which remain unsold after such auction, as provided in section forty-eight of this article.

(d) If the person requesting preparation and service of the notice is an assignee of the purchaser, he or she shall, at the time of the request, file with the deputy commissioner a written assignment to him or her of the purchaser’s rights, executed, acknowledged and certified in the manner required to make a valid deed.

(e) No deed to a subsequent bona fide purchaser for value from the purchaser, or an owner substituted for the purchaser, may be set aside for failure of the purchaser to comply with this section.

§11A-3-54. Notice to redeem.


Whenever the provisions of section fifty-two of this article have has been complied with, the deputy commissioner shall thereupon prepare a notice in form or effect as follows:

To _____________________________________

You will take notice that ___________________, the purchaser (or _____________, the assignee, heir or devisee of ____________, the purchaser) of the following real estate, ___________________, (here describe the real estate sold) located in ________________, (here name the city, town or village in which the real estate is situated or, if not within a city, town or village, give the district and a general description) which was __________________ (here put whether the property was returned delinquent or nonentered) in the name of __________________, and was sold by the deputy commissioner of delinquent and nonentered lands of _________________ County at the sale for delinquent taxes (or nonentry) on the ______ day of _________________, 19 20____, has requested that you be notified that a deed for such real estate will be made to him or her on or after the ______ day of _____________, 19 20____, as provided by law, unless before that day you redeem such real estate. The amount you will have to pay to redeem on the ________ day of __________________,19 20__, will be as follows:

Amount equal to the taxes, interest and charges due on the date of sale, with interest to ______________ .........$_________

Amount of taxes paid on the property, since the sale, with interest to _______________ ..........$_________

Amount paid for title examination and preparation of list of those to be served, and for preparation and service of the notice with interest to ______________ ..........$_________

Amount paid for other statutory costs (describe)

________________________________________________________________ _________________................... $_________

Total ......................... $_________

You may redeem at any time before _________________ by paying the above total less any unearned interest.

NOTE: If you have received this notice because you are the owner of an interest in the surface overlaying a mineral interest that was returned delinquent, or an owner of a mineral interest underlying a surface tract that was returned delinquent, you may pay the clerk the amount identified above, plus a nonrefundable $20 administrative fee, before March 31, 20___. If you pay the amount identified above and the property is later redeemed by the owner or a person with a right to redeem, that amount you paid, less the administrative fee, will be refunded to you. If you pay the amount identified above and the property is not redeemed by the owner or a person with a right to redeem, you will be substituted for the purchaser of the tax lien and you may proceed to obtain a deed for the delinquent property. If you and one or more additional surface owners or mineral owners each pay the amount identified above, the surface owners or mineral owners who have made payment shall submit, by April 1, 20___, an agreement dividing the real estate according to your proportionate ownership or any other method or formula agreed to among all of you. If an agreement is not filed, the clerk shall refund the moneys tendered by the surface owners or mineral owners, less the administrative fees, and none of you will be substituted for the purchaser of the tax lien.

Given under my hand this ________ day of __________________, 19 20_____.

____________________________ Deputy Commissioner of Delinquent and Nonentered Lands

______________________ County,

State of West Virginia

______________________ County,

State of West Virginia

The deputy commissioner for his or her service in preparing the notice shall receive a fee of $10 $50 for the original and $2 for each copy required. Any costs which must be expended in addition thereto for publication, or service of such notice in the manner provided for serving process commencing a civil action, or for service of process by certified mail, shall be charged by the deputy commissioner. All costs provided by this section shall be included as redemption costs and included in the notice described herein.

§11A-3-56. Redemption from purchase; receipt; list of redemptions; lien; lien of person redeeming interest of another; record.


(a) After the sale of any tax lien on any real estate pursuant to section forty-five or forty-eight of this article, the owner of, or any other person who was entitled to pay the taxes on, any real estate for which a tax lien thereon was purchased by an individual, may redeem at any time before a tax deed is issued therefor. In order to redeem, he must pay to the deputy commissioner the following amounts: (1) An amount equal to the taxes, interest and charges due on the date of the sale, with interest thereon at the rate of one percent per month from the date of sale; (2) all other taxes thereon, which have since been paid by the purchaser, his heirs or assigns, with interest at the rate of one percent per month from the date of payment; (3) such reasonable additional expenses as may have been incurred in preparing the list of those to be served with notice to redeem, and any title examination incident thereto, with interest at the rate of one percent per month from the date of payment, but the amount he shall be required to pay, excluding said interest, for such expenses incurred for the preparation of the list of those to be served with notice to redeem required by section fifty-two of this article, and any title examination incident thereto, shall not exceed two hundred dollars; (4) all additional statutory costs paid by the purchaser; and (5) the deputy commissioner's fee and commission as provided by section sixty-six of this article. Where the deputy commissioner has not received from the purchaser satisfactory proof of the expenses incurred in preparing the notice to redeem, and any examination of title incident thereto, in the form of receipts or other evidence thereof, the person redeeming shall pay the deputy commissioner the sum of $200 plus interest thereon at the rate of one percent per month from the date of the sale for disposition pursuant to the provisions of sections fifty-seven, fifty-eight and sixty-four of this article. Upon payment to the deputy commissioner of those and any other unpaid statutory charges required by this article, and of any unpaid expenses incurred by the sheriff, the auditor and the deputy commissioner in the exercise of their duties pursuant to this article, the deputy commissioner shall prepare an original and five copies of the receipt for the payment and shall note on said receipts that the property has been redeemed. The original of such receipt shall be given to the person redeeming. The deputy commissioner shall retain a copy of the receipt and forward one copy each to the sheriff, assessor, the auditor and the clerk of the county commission. The clerk shall endorse on the receipt the fact and time of such filing and note the fact of redemption on his record of delinquent lands.

(b) Any person who, by reason of the fact that no provision is made for partial redemption of the tax lien on real estate purchased by an individual, is compelled in order to protect himself to redeem the tax lien on all of such real estate when it belongs, in whole or in part, to some other person, shall have a lien on the interest of such other person for the amount paid to redeem such interest. He shall lose his right to the lien, however, unless within thirty days after payment he shall file with the clerk of the county commission his claim in writing against the owner of such interest, together with the receipt provided for in this section. The clerk shall docket the claim on the judgment lien docket in his office and properly index the same. Such lien may be enforced as other judgment liens are enforced.

§11A-3-58a. Surface owner substitution for purchaser.


(a) If the interest in real estate subject to the tax lien includes minerals, but not an interest in the surface, except an interest for the purpose of developing the minerals, then within thirty days after notices to redeem have been served, or an attempt of personal service has been made, the notices have been mailed or, if necessary, published in accordance with section fifty-five of this article, following the deputy commissioner’s sale, a surface owner whose surface lies above the delinquent mineral property may pay to the deputy commissioner: (1) The amount that would be required for redemption pursuant to section twenty-three of this article; (2) the lesser of either the amount required for redemption pursuant to said section or $3,000; and (3) a nonrefundable $20 administrative fee. Upon payment, the deputy commissioner shall issue the surface owner a certificate of substitution and send a copy to the purchaser. If more than one surface owner makes this payment to the deputy commissioner, the deputy commissioner shall issue each a certificate of substitution and send copies of the certificates of substitution to the other substituted surface owners in addition to the purchaser.

(b) If the property is redeemed by the owner or a person with a right to redeem, the deputy commissioner shall refund the moneys paid by the surface owner, less the administrative fees.

(c) If the property is not redeemed by the owner or a person with a right to redeem, and if only one surface owner has received a certificate of substitution, then the deputy commissioner shall send the amount paid by the surface owner to the purchaser, less the $20 administrative fee, and record the certificate of substitution. That surface owner enjoys the full rights and duties of the purchaser.

(d) If more than one surface owner pays the deputy commissioner the appropriate amount, the surface owners shall submit an agreement dividing the property according to their proportionate shares of ownership in the overlying surface, or another mutually agreeable method or formula approved by all of them, by April 1 of the year following the tax sale. No deed may be issued before April 1 of the year following the tax sale. Unless otherwise provided by written agreement between the substituted surface owners, each surface owner’s interest in the delinquent mineral property shall be equal to their pro rata share of surface acreage overlying the delinquent mineral property: Provided, That if more than one owner of an undivided interest in the same tract pays the deputy commissioner the appropriate amount, his or her share shall be the total acreage of the undivided tract divided by the number of owners of the tract who have also paid the deputy commissioner: Provided, however, That the deputy commissioner shall refund that portion of moneys which exceeds the amount required for substitution in subsection (a) of this section according to the substituted surface owners’ proportionate interest in the delinquent mineral property. If an agreement is filed, then the deputy commissioner shall make an amended certificate dividing the property according to their respective interests and refund any remaining moneys paid by them according to their agreed interests. If no agreement is filed, the deputy commissioner shall refund the moneys paid by the surface owners, less the $20 administrative fees, and the original purchaser is returned to his or her original position.

§11A-3-58b. Mineral owner substitution for purchaser.


(a) If the interest in real estate subject to the tax lien includes surface property, but not an interest in the underlying minerals, then within thirty days after notices to redeem have been served, or an attempt of personal service has been made, the notices have been mailed or, if necessary, published in accordance with section fifty-five of this article, following the deputy commissioner’s sale, a mineral owner whose mineral property underlays the delinquent surface property may pay to the deputy commissioner: (1) The amount that would be required for redemption pursuant to section twenty-three of this article; (2) the lesser of either the amount required for redemption pursuant to said section or $3,000; and (3) a nonrefundable $20 administrative fee. Upon payment, the deputy commissioner shall issue the mineral owner a certificate of substitution and send a copy to the purchaser. If more than one mineral owner makes this payment to the deputy commissioner, the deputy commissioner shall issue each a certificate of substitution and send copies of the certificates of substitution to the other substituted mineral owners in addition to the purchaser.

(b) If the property is redeemed by the owner or a person with a right to redeem, the deputy commissioner shall refund the moneys paid by the mineral owner, less the administrative fees.

(c) If the property is not redeemed by the owner or a person with a right to redeem, and if only one mineral owner has received a certificate of substitution, then the deputy commissioner shall send the amount paid by the mineral owner to the purchaser, less the $20 administrative fee, and record the certificate of substitution. That substituted mineral owner enjoys the full rights and duties of the purchaser.

(d) If more than one mineral owner pays the deputy commissioner the appropriate amount, the mineral owners shall submit an agreement dividing the surface property according to their proportionate shares of ownership in the underlying mineral property, or another mutually agreeable method or formula approved by all of them, by April 1 of the year following the tax sale. No deed may be issued before April 1 of the year following the tax sale. Unless otherwise provided by written agreement between the substituted mineral owners, each mineral owner’s interest in the delinquent surface property shall be equal to their pro rata share of mineral acreage underlying the delinquent surface property: Provided, That if more than one owner of an undivided interest in the same tract pays the deputy commissioner the appropriate amount, his or her share shall be the total acreage of the undivided tract divided by the number of owners of the tract who have also paid the deputy commissioner: Provided, however, That the deputy commissioner shall refund that portion of moneys which exceeds the amount required for substitution in subsection (a) of this section according to the substituted mineral owners’ proportionate interest in the delinquent surface property. If an agreement is filed, then the deputy commissioner shall make an amended certificate dividing the property according to their respective interests and refund any remaining moneys paid by them according to their agreed interests. If no agreement is filed, the deputy commissioner shall refund the moneys paid by the mineral owners, less the $20 administrative fees, and the original purchaser is returned to his or her original position.


 

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