J. A33008/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

WELLS FARGO BANK NA, KONDAUR     :             IN THE SUPERIOR COURT OF
CAPITAL CORPORATION AND          :                   PENNSYLVANIA
U.S. BANK NATIONAL ASSOCIATION   :
                                 :
                v.               :
                                 :
SCOTT A. BARRIS AND KELLY HANSON :
A/K/A KELLY BARRIS               :
                                 :
APPEAL OF: SCOTT A. BARRIS,      :                   No. 268 EDA 2015
                                 :
                    Appellant    :


             Appeal from the Order Entered December 15, 2014,
               in the Court of Common Pleas of Bucks County
                       Civil Division at No. 2012-03715


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 23, 2016

      Scott A. Barris and Kelly Hanson, a/k/a Kelly Barris (hereinafter

“appellants” or “defendants”), appeal from the December 15, 2014 order

granting Kondaur Capital Corporation’s (hereinafter “appellee” or “plaintiff”)

motion for summary judgment. We affirm.

      The trial court provided the following facts and procedural history of

this case:

                   On April 23, 2012, the original Plaintiff in this
             matter, Wells Fargo Bank, N.A. (hereinafter referred
             to [as] “Wells Fargo”), filed a Complaint in Mortgage
             Foreclosure against Scott A. Barris and Kelly Hanson
             a/k/a Kelly Barris (hereinafter referred to [as]
             “Defendants”). According to the Complaint, on or


* Retired Senior Judge assigned to the Superior Court.
J. A33008/15


          about September 7, 2007, Defendants executed and
          signed an adjustable rate mortgage Note in favor of
          Wells Fargo’s predecessor-in-interest, World Savings
          Bank, FSB. They promised to repay $421,800.00
          plus interest and other costs to “World Savings Bank,
          F[SB], a Federal Savings Bank, its successors and/or
          assignees, or anyone to whom the Note is
          transferred.”    See Note, Ex. A-1, Motion for
          Summary Judgment, July 10, 2014, Kondaur
          Capital Corp. v. Scott A. Barris and Kelly
          Hanson aka Kelly Barris, BCCCP Docket No. 2012-
          03715.

                On or about September 7, 2007, Defendants
          also executed a mortgage upon the real property
          located at 115 Sovereign Drive, Warrington, Bucks
          County as collateral for the Note. See Mortgage,
          Exhibit A, Motion for Summary Judgment,
          July 10, 2014, Kondaur Capital Corp. v. Scott A.
          Barris and Kelly Hanson aka Kelly Barris, BCCCP
          Docket No. 2012-03715.         The Mortgage was
          executed and recorded in the Bucks County Office of
          the Recorder of Deeds in Book 5580, Page 1273.

                The Complaint alleged that the Mortgage was
          “in default because monthly payments of principal
          and interest are due and unpaid for [July 1, 2011]
          and each month thereafter.” Complaint, Kondaur
          Capital Corp. v. Scott A. Barris and Kelly
          Hanson aka Kelly Barris, BCCCP Docket No. 2012-
          03715.

                 The Complaint also alleged that Defendants
          failed to cure the default or otherwise comply with
          the terms of the Mortgage. As of April 10, 2012, the
          total amount due on account of the Mortgage,
          including principal, interest, late charges, and costs
          was $456,899.90. See id.

                Subsequent to the filing of the Complaint, a
          Foreclosure Conciliation Conference was scheduled
          pursuant to Bucks County’s Residential Mortgage
          Foreclosure Diversion Program.



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                Both parties participated in Conciliation
          Conferences held on August 12, 2012, November 19,
          2012, February 25, 2013, May 22, 2013, July 22,
          2013, and September 23, 2013.         On the last
          scheduled conference date of September 23, 2013,
          Defendants failed to appear. See Docket Entry of
          Oct. 7, 2013, Kondaur Capital Corp. v. Scott A.
          Barris and Kelly Hanson aka Kelly Barris, BCCCP
          Docket No. 2012-03715.

                On October 7, 2013, the Honorable Susan
          Devlin Scott of this court issued an Order authorizing
          Wells Fargo “to obtain a judgment pursuant to and in
          compliance with [Pennsylvania Rule of Civil
          Procedure] 237.1 and to otherwise proceed with the
          action as provided by rules of court.” Id.

                On November 7, 2013, Defendants filed an
          Answer to the Complaint.          In their Answer,
          Defendants generally denied that they were in
          default under the terms of the Mortgage. They
          further stated that the allegation of default was a
          “conclusion of law to which no response is required.”
          As to Wells Fargo’s allegations of the amount due
          and owing on the Note and Mortgage, Defendants
          denied “the characterization of the schedule of
          amounts due under the mortgage.”        Answer to
          Complaint, Nov. 7, 2013, Kondaur Capital Corp.
          v. Scott A. Barris and Kelly Hanson aka Kelly
          Barris, BCCCP Docket No. 2012-03715.

                On November 13, 2013, Wells Fargo filed a
          Praecipe to substitute “U.S. Bank, National
          Association, as Trustee for Stanwich Mortgage Loan
          Trust, Series 2012-9” as successor Plaintiff for the
          originally named Plaintiff. The Assignment of the
          Mortgage to U.S. Bank as trustee (hereinafter
          referred to [as] “U.S. Bank”) was attached as an
          exhibit. Praecipe for Voluntary Substitution of
          Party Plaintiff, Nov. 13, 2013, Kondaur Capital
          Corp. v. Scott A. Barris and Kelly Hanson aka
          Kelly Barris, BCCCP Docket No. 2012-03715.




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                On June 26, 2014, U.S. Bank filed a Praecipe
          to substitute “Kondaur Capital Corporation, as
          Separate Trustee of Matawin Ventures Trust Series
          2013-4” as successor Plaintiff. In support of the
          Praecipe, U.S. Bank asserted the following:

                Kondaur Capital Corporation, as Separate
                Trustee of Matawin Ventures Trust Series
                2013-4, is the current holder of the
                Mortgage by virtue of that certain
                Assignment of Mortgage, which has been
                recorded March 11, 2014, in the Office of
                the Recorder of Deeds of Bucks County
                as Instrument #2014011458.

          Praecipe for Voluntary Substitution of Party
          Plaintiff, June 26, 2014, Kondaur Capital Corp. v.
          Scott A. Barris and Kelly Hanson aka Kelly
          Barris, BCCCP Docket No. 2012-03715.

               A copy of the Assignment to Kondaur Capital
          Corporation (hereinafter referred to [as] “Kondaur”)
          was attached to the Praecipe as Exhibit “A”. See id.

                On July 10, 2014, Kondaur filed a Motion for
          Summary Judgment, re-asserting that Defendants
          are in default for failing to pay the July 1, 2011
          payment and each monthly payment thereafter.
          Motion for Summary Judgment, Kondaur
          Capital Corp. v. Scott A. Barris and Kelly
          Hanson aka Kelly Barris, BCCCP Docket No. 2012-
          03715.

                In the Motion for Summary Judgment, Plaintiff
          attached an Affidavit, authored by William Suh,
          Foreclosure    Specialist    of    Kondaur     Capital
          Corporation. In the Affidavit, Mr. Suh stated that, he
          has “access to the business records relating to the
          loan at issue herein, which are maintained in the
          regular course of business activities.”      Mr. Suh
          further asserted that the Affidavit was made “based
          upon [his] review of the facts contained in those
          records pertaining to the account of Defendants.”
          See id at Ex. B.


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                  In the Affidavit, Mr. Suh verified that the
            July 1, 2011 payment, and every payment
            thereafter, was due and owing. He further related
            that, as of July 7, 2014, the total amount due upon
            the Mortgage was $494,663.59 including interest
            and late charges. The amount owed was itemized
            and listed in his Affidavit. See id. at Ex. B.

                  In further support of its assertion of the
            amount due and owing upon the Mortgage, Kondaur
            attached a copy of Defendants’ loan payment
            history. See id. at Ex-B-1.

                  On August 8, 2014, Defendants filed an
            Answer in Opposition to Plaintiff’s Motion for
            Summary Judgment.         In their Answer, and in
            response to Kondaur’s assertion that the mortgage is
            due and owing for the July 1, 2011 payment and
            each payment thereafter, Defendants once again
            stated that these allegations are “conclusions of law
            to which no response is required.”       Answer in
            Opposition of Motion for Summary Judgment,
            Aug. 8, 2014, Kondaur Capital Corp. v. Scott A.
            Barris and Kelly Hanson aka Kelly Barris, BCCCP
            Docket No. 2012-03715.

                   On December 15, 2014, this Court granted
            Plaintiff’s Motion for Summary Judgment.

                  On January 14, 2015, Defendants filed a Notice
            of Appeal to the Superior Court of Pennsylvania from
            this Court’s Order of December 15, 2014.

                  This Opinion is filed pursuant to Pennsylvania
            Rule of Appellate Procedure 1925(a).

Trial court opinion, 2/12/15 at 1-4.

      Appellants raise the following issues for our review:

            I.    Whether the trial court erred in granting
                  Plaintiff’s Motion for Summary Judgment as the
                  Affidavit of William Suh that Plaintiff attached


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                   as an exhibit to its Motion for Summary
                   Judgment, was legally defective due to its
                   failure to comply with the Uniform Business
                   Records of Evidence Act and the Pennsylvania
                   Rules of Evidence?

            II.    Whether the trial court abused its discretion by
                   relying upon William Suh’s Affidavit, given the
                   glaring inconsistencies and lack of explanation
                   as to the alleged amounts owing which indicate
                   a lack of trustworthiness of the Affidavit?

            III.   Whether the trial court erred in grating [sic]
                   Plaintiff’s motion for Summary Judgment as
                   William Suh’s Affidavit violated the Nanty-Glo
                   Rule?

            IV.    Whether the trail [sic] court erred in granting
                   Summary Judgment in favor of Plaintiff,
                   despite the failure of Plaintiff’s lack of standing
                   to foreclose?

Appellants’ brief at 4-5.

      Before addressing appellants’ issues on appeal, we begin with our

well-settled standard of review for challenges of summary judgment:

                   A proper grant of summary judgment
                   depends upon an evidentiary record that
                   either (1) shows the material facts are
                   undisputed or (2) contains insufficient
                   evidence of facts to make out a prima
                   facie cause of action or defense and,
                   therefore, there is no issue to be
                   submitted to the jury. Pa.R.C.P. 1035.2
                   Note.    Where a motion for summary
                   judgment is based upon insufficient
                   evidence of facts, the adverse party must
                   come forward with evidence essential to
                   preserve the cause of action.      If the
                   non-moving party fails to come forward
                   with sufficient evidence to establish or
                   contest a material issue to the case, the


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                    moving party is entitled to judgment as a
                    matter of law. The non-moving party
                    must adduce sufficient evidence on an
                    issue essential to its case and on which it
                    bears the burden of proof such that a
                    jury could return a verdict favorable to
                    the non-moving party.         As with all
                    summary judgment cases, the court
                    must examine the record in the light
                    most favorable to the non-moving party
                    and resolve all doubts against the
                    moving party as to the existence of a
                    triable issue.

                    Upon appellate review, we are not bound
                    by the trial court’s conclusions of law,
                    but may reach our own conclusions. In
                    reviewing a grant of summary judgment,
                    the appellate court may disturb the trial
                    court’s order only upon an error of law or
                    an abuse of discretion. The scope of
                    review is plenary and the appellate court
                    applies the same standard for summary
                    judgment as the trial court.

            McCarthy v. Dan Lepore & Sons Co., Inc., 724
            A.2d 938, 940-41 (Pa.Super.1998), appeal denied,
            560 Pa. 707, 743 A.2d 921 (1999) (some internal
            citations omitted). See also Moses v. T.N.T. Red
            Star Exp., 725 A.2d 792 (Pa.Super. 1999), appeal
            denied, 559 Pa. 692, 739 A.2d 1058 (1999).

Petrongola     v.   Comcast-Spectacor,       L.P.,   789   A.2d   204,   208-209

(Pa.Super. 2001), appeal denied, 803 A.2d 736 (Pa. 2002).

      We shall address appellants’ first three issues simultaneously, as all

three relate to Mr. Suh’s affidavit. Appellants’ first issue for our review is

whether Mr. Suh’s affidavit is in compliance with the Uniform Business

Records of Evidence Act (hereinafter “the Records of Evidence Act”) and the



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Pennsylvania Rules of Evidence.       Specifically, appellants aver that the

affidavit is facially defective because it lacks certain elements required by

the Act: (1) that the affidavit fails to state that the making of records was a

regular practice of that business activity; (2) that the affidavit lacks any

statement as to when the records in question were made; (3) that Mr. Suh

has no personal knowledge of the records in question; and (4) that Mr. Suh

lacks familiarity with the process in which the records in question were

produced.    (See appellants’ brief at 15-17.)     Under their second issue,

appellants aver that the trial court abused its discretion by relying on

Mr. Suh’s affidavit, despite defects in violation of the Records of Evidence

Act and the Pennsylvania Rules of Evidence.        (See id. at 19.)    Finally,

appellants allege that Mr. Suh’s affidavit is in violation of the Nanty-Glo

rule.

        We begin with an analysis of the Nanty-Glo rule.      In Borough of

Nanty-Glo v. American Surety Co. of New York, 163 A. 523 (Pa. 1932),

our supreme court held that oral testimony alone is insufficient to warrant an

entry of summary judgment. Id. at 524. “An exception to this rule exists,

however, where the moving party supports the motion by using admissions

of the opposing party . . .” Bank of America, N.A. v. Gibson, 102 A.3d

462, 466 (Pa.Super. 2014), appeal denied, 112 A.3d 648 (Pa. 2015),

quoting Sherman v. Franklin Regional Med. Ctr., 660 A.2d 1370, 1372

(Pa.Super. 1995), appeal denied, 670 A.2d 142 (Pa. 1995).



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            General denials constitute admissions where—like
            here—specific denials are required. See Pa.R.C.P.
            No. 1029(b). Furthermore, “in mortgage foreclosure
            actions, general denials by mortgagors that they are
            without information sufficient to form a belief as to
            the truth of averments as to the principal and
            interest owing [on the mortgage] must be
            considered an admission of those facts.” First Wis.
            Tr. Co. v. Strausser, 439 Pa.Super. 192, 653 A.2d
            688, 692 (1995); see Pa.R.C.P. No. 1029(c) Note.
            By his ineffective denials and improper claims of lack
            of knowledge, Appellant admitted the material
            allegations of the complaint, which permitted the
            trial court to enter summary judgment on those
            admissions.

Gibson, 102 A.3d at 466-467.        See also Buckno v. Penn Linen &

Uniform Service, Inc., 631 A.2d 674, 676 (Pa.Super. 1993), appeal

denied, 647 A.2d 895 (Pa. 1994) (“A party seeking to avoid the entry of

summary judgment against him or her may not merely rest on averments in

the pleadings. The party must show that there is a genuine issue for trial

once a properly supported summary judgment motion confronts him or her.”

(citation omitted)).

      In the instant appeal, appellants responded to appellee’s averments of

default and the amount of the mortgage in the foreclosure complaint with

nothing more than general denials. Wells Fargo, in its original foreclosure

complaint, averred the following:

            5.    The Mortgage is in default because monthly
                  payments of principal and interest are due and
                  unpaid for 7/1/11 and each month thereafter.
                  By the terms of the Mortgage, upon failure of
                  Mortgagor(s) to make such payments after a
                  date specified in written notice sent to


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                 Mortgagor(s), the entire principal balance and
                 all interest due and other charges are due and
                 collectible.

           6.    The total amount due Plaintiff through 4/10/12
                 is $456,899.90, which breaks down as follows:

                    Principal:                   443,396.12
                    Interest @ variable rate(s)
                     from 6/1/11 to 4/10/12:       7,632.86
                    Pre-Acceleration Late Charges:   704.90
                    Unapplied Funds Credit:         (102.06)
                    Escrow Advance:                5,268.08

                    TOTAL:                        456,899.90

                 Per diem interest in the amount of $24.30 will
                 accrue on the principal from 4/11/12 to the
                 next interest rate change date and accrue
                 thereafter with the variable rate.

Complaint, 4/20/12 at 1; R.R. at 11a.

     Appellants answered with the following general denials:

           5.    Denied.     The allegations set forth in
                 Paragraph 5 constitute conclusions of law to
                 which no response is required. To the extent a
                 response is required, the allegations are
                 denied.

           6.    Denied. Defendant denies the characterization
                 of the schedule of amounts due under the
                 mortgage and strict proof thereof is demanded
                 at trial. Plaintiff alleges an escrow advance of
                 $5,268.08 but does not set forth an itemization
                 whatsoever for Defendant to be able to answer
                 whether that amount is true or correct.
                 According, Defendant requests that Plaintiff
                 provide an itemized statement of the alleged
                 escrow advance.

Answer, 11/7/13 at 2; R.R. at 20a.



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      Appellants failed to make any reference to what they believe is the

correct amount due on the mortgage, nor do they articulate why they

believe that the escrow advance of $5,268.08 alleged by appellee may be in

error. Due to their failure to include pleadings of specific facts in response

to appellee’s foreclosure complaint, especially pertaining to the amount of

principal and interest due on the mortgage, appellants are deemed to have

admitted the allegations pursuant to Strausser.        See also New York

Guardian Mortg. Corp. v. Dietzel, 524 A.2d 951, 952 (Pa.Super. 1987)

(mortgagors’ general denial of mortgagee’s averment as to the principal and

interest due is deemed an admission of those facts because the mortgagor

and the mortgage holder are the only parties “who would have sufficient

knowledge on which to base a specific denial”); Cercone v. Cercone, 386

A.2d 1, 3 (Pa.Super. 1978) (a demand for proof without a reasonable

investigation by a nonmoving party is deemed to be an admission).

      Therefore, we find that appellants’ general denials of the amount of

principal and interest due on the mortgage and their general denial of the

fact that the mortgage is in default constitute admissions to the facts

averred in appellee’s foreclosure complaint. As a result, appellants failed to

sustain their burden of presenting material facts in dispute, and summary

judgment was proper. Accordingly, appellants’ first three issues are without

merit.




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     In their fourth issue for our review, appellants challenge whether

appellee has proper standing to bring an action in foreclosure.       When

determining standing in a foreclosure action, we are governed by the

following standard:

           Pennsylvania Rule of Civil Procedure 2002 provides,
           “[e]xcept as otherwise provided . . . all actions shall
           be prosecuted by and in the name of the real party
           in interest, without distinction between contracts
           under seal and parol contracts.” Pa.R.C.P. 2002(a);
           see also J.P. Morgan Chase Bank, N.A. v. Murray,
           63 A.3d 1258, 1258 (Pa.Super. 2013) (finding a
           debtor’s claim that appellee bank was not a real
           party in interest to bring foreclosure action was a
           challenge to appellee’s standing). “[A] real party in
           interest is a [p]erson who will be entitled to benefits
           of an action if successful . . . . [A] party is a real
           party in interest if it has the legal right under the
           applicable substantive law to enforce the claim in
           question.” U.S. Bank, N.A. v. Mallory, 982 A.2d
           986, 993-994 (Pa.Super. 2009) (citation and
           quotation marks omitted; some brackets in original).

           In a mortgage foreclosure action, the mortgagee is
           the real party in interest. See Wells Fargo Bank,
           N.A. v. Lupori, 8 A.3d 919, 922 n.3 (Pa.Super.
           2010). This is made evident under our Pennsylvania
           Rules of Civil Procedure governing actions in
           mortgage foreclosure that require a plaintiff in a
           mortgage foreclosure action specifically to name the
           parties to the mortgage and the fact of any
           assignments. Pa.R.C.P. 1147. A person foreclosing
           on a mortgage, however, also must own or hold the
           note. This is so because a mortgage is only the
           security instrument that ensures repayment of the
           indebtedness under a note to real property. See
           Carpenter v. Longan, 83 U.S. 271, 275 (1872)
           (noting “all authorities agree the debt is the principal
           thing and the mortgage an accessory.”). A mortgage
           can have no separate existence. Id. When a note is
           paid, the mortgage expires. Id. On the other hand,


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              a person may choose to proceed in an action only
              upon a note and forego an action in foreclosure upon
              the collateral pledged to secure repayment of the
              note. See Harper v. Lukens, 112 A. 636, 637 (Pa.
              1921) (noting “as suit is expressly based upon the
              note, it was not necessary to prove the agreement
              as to the collateral.”). For our instant purposes, this
              is all to say that to establish standing in this
              foreclosure action, appellee had to plead ownership
              of the mortgage under Rule 1147, and have the right
              to make demand upon the note secured by the
              mortgage.

CitiMortgage, Inc. v. Barbezat, 2016 WL 99772,                A.3d      , at *2-3

(Pa.Super. 2016).

        Here, appellants aver that under the Pennsylvania Uniform Commercial

Code,

              Wells Fargo is the only entity that can negotiate the
              Note. Wells Fargo did not indorse the Note over to
              another entity nor did it indorse the note in blank.
              Therefore, Wells Fargo as the holder of the Note is
              the only party [which] has standing to enforce the
              Note.

Appellants’ brief at 25 (emphasis in original) (footnote omitted).

        Appellants’ assertion that Wells Fargo did not indorse the note in blank

is inaccurate.

              Pursuant to section 3205(a), a special indorsement is
              one made by the holder of an instrument that
              identifies a person to whom it makes the instrument
              payable.     13 Pa.C.S.A. § 3205(a).     Pursuant to
              section 3205(b), a blank indorsement is an
              indorsement made by the holder of a negotiable
              instrument that is not a special indorsement. Id.
              § 3205(b). When indorsed in blank, an instrument
              becomes payable to bearer and may be negotiated



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            by transfer of possession alone until        specially
            indorsed. Murray, 63 A.3d at 1266.

PHH Mortg. Corp. v. Powell, 100 A.3d 611, 617 n.6 (Pa.Super. 2014).

      Wells Fargo indorsed the note subject to the instant appeal as follows:

            WITHOUT RECOURSE
            PAY TO THE ORDER OF

            WELLS FARGO BANK, N.A., SUCCESSOR BY MERGER
            TO WACHOVIA MORTGAGE F.S.B., FORMERLY
            KNOWN AS WORLD SAVINGS BANK, F.S.B.

R.R. at 89a. By indorsing the note to itself, Wells Fargo indorsed the note in

blank and preserved its right to transfer possession of the note and

accompanying mortgage, as it did by transferring the note and mortgage to

U.S. Bank on February 20, 2013. Subsequently, U.S. Bank transferred its

interest in the note and mortgage to Kondaur on March 11, 2014.          Both

transfers were recorded with the Bucks County Recorder of Deeds.         As a

result, appellee has complied with Pa.R.C.P. 1147, which requires a

mortgagee to plead ownership in a foreclosure proceeding.      In the motion

for summary judgment,1 appellee pled ownership of the mortgage by

detailing the assignment from U.S. Bank.         (See motion for summary

judgment, 7/9/14 at 4; R.R. at 45a.) Therefore, appellants’ fourth issue is

without merit.

      Order affirmed.


1
  As noted above, Wells Fargo filed the original foreclosure complaint. While
this case was pending, Wells Fargo assigned the mortgage to U.S. Bank.
U.S. Bank subsequently assigned the mortgage to appellee.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/23/2016




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