Short sales and double closings – the good, the bad, and the ugly – Part 3

By
Real Estate Agent with Sand Dollar Realty Group, Inc. BK627826
http://actvra.in/4v2n

In the first part of this article, I discussed "The Good" Short sales and double closings - the good, the bad, and the ugly - Part 1 things about short sale double closings.  In the second part, I discussed the questionably "Bad" things Short sales and double closings - the good, the bad, and the ugly - Part 2 about these type of transactions.  Well this last article is the really ugly, possibly criminal stuff.  I am not going to re-iterate points I have made in the previous articles. So if you don't understand short sale double closings, then I urge you to go back and re-read the previous articles.

   short sales and double closings

The ugly -

The short sale double closing transaction can get even juicier.  I've attended multiple meetings, classes, and seminars over the last year or so where the topic of short sales and double closings came up.

The first time I heard anybody questioning them was in an article by a local real estate attorney about 1 ½ years ago.  Then I read about Stewart Title curtailing these transactions.  In Fall 2008 I heard it discussed by our local Orlando Regional Realtor Association's attorney at a broker breakfast.  Then I heard about it at a small group meeting with the Florida Attorney General's office this Spring. In August  I hear about it yet again at the Florida Association of Realtor's convention - both FAR's attorney as well as the State of Florida Division of Real Estate's attorney spent about 30 minutes each discussing the topic.  When the State's enforcing officers start discussing a topic repeatedly that typically means it is only a matter of time before criminal crackdowns begin.

The constant theme I heard from all these people is defrauding either the lender or the borrower as part of the transaction.  Not only is fraud a violation of state law, but it is a violation of federal banking laws and could possibly fall into mail fraud, wire fraud, and RICO.  We are talking major criminal penalties here. It could also result in the lender unwinding the whole short sale transaction and pursuing additional deficiency judgments against the borrowers.

At the FAR convention, the attorneys both stressed on multiple occasions that if the buyer, their Realtor, the title company, or anyone else is trying to convince the lender that the property is worth one amount when they know for a fact that it can immediately sell for higher that this is FRAUD.  Especially if there is a higher offer that is already signed and agreed to behind the scenes and waiting for the closing from seller A to buyer B to happen.  That does not mean that the second buyer C's name, contact information, price, or terms have to be revealed. 

Some so-called gurus will go so far as to instruct you to send the lender low comparable sales or write up a low Broker Price Opinion (BPO) in order to influence the lender.  I've even heard some investor-buyers meeting with BPO agents to influence them about the "terrible" condition of the house. Some people will remove the hot water heater or air-conditioner; some will shake a coke can and spray it on the ceiling to look like a roof leak.  Some people will intentionally borrow a beat up car and wear shabby clothes when they meet the Realtor performing the BPO in order to somehow influence that person into feeling sorry for all the parties involved.  

Certainly I can understand why someone would want to influence the BPO to be a lower price.  And if the buyer was planning on buying the home live in it or keep it as a rental, then I don't see any big problem at all.  But if the investor is trying to convince the BPO Realtor and/or the short saling lender that the property is worth only $150,000 when they know for a fact that they can immediately sell it for $160,000, then that is most likely fraud if they don't disclose their intent.  The fraud is influencing the lender to accept the lower dollar amount via trickery, strategy, or whatever tactics.  This is very similar to some of the tactics that were done in the boom times to convince appraisers to over-inflate the value of the property. Well as the State's attorney said, the mortgage fraud law works both ways - on both over-inflated values and under-inflated values.

So here is my advice from everything I have heard, read, or discussed thus far. If an investor wants to do these short sale double closings then they either (1) need to stay far far away from the valuation and BPO process by the lender, or (2) they need to disclose in writing exactly what they are doing. This includes sending the lender a copy of the second contract (even if the C buyer's name and contact info is crossed out).

Since most investors don't want to do #2 (obviously), then stick with #1. Because if you are doing everything in your power to influence the lender that the property is worth a low value and you know for a fact that you can immediately re-sell it for more, YOU ARE COMMITTING FRAUD plain and simple.  I am not going to sugarcoat it. Do not attempt to influence the lender as to the property's value on a short sale double closing.  Let the lender come up with the value on their own and let the chips fall where they may.

Here is a link to the federal criminal code.  In particular check out sections 1006, 1011, 1012, and 1014.  The State attorneys at the FAR convention said that these laws are written liberally for a reason. And remember that nearly all 1st mortgage loans right now are either regulated by, insured by, or owned by the federal government (i.e. Fannie Mae, Freddie Mac, VA, FHA, USDA, FDIC, etc.).

In fact I am not quite sure how attempting to buy a property gives you the right to negotiate a short sale agreement between 3rd parties - the borrower and lender are 3rd parties.  As far as I know in all 50 states, only attorneys are allowed to negotiate contracts and agreements between 3rd parties.  However there are typically 3 exceptions to this law - real estate brokers, mortgage brokers, and certain governmental or non-profit agencies. 

Florida Statute 475.01 provides what constitutes acting as a real estate broker. 

Florida Statue 494.001 and 494.00296 provide the law regarding mortgage brokers.

And obviously a real estate investor is not a government agency or a non-profit entity. 

In Florida practicing law without a license is a 3rd degree felony. Some investors/buyers will argue that the owner gave them "written permission" to negotiate on their behalf.  Sorry, that bird won't fly.  An owner cannot sign a paper and make you a licensed attorney.  Just like an owner cannot sign a document allowing some unlicensed person to install a roof on their house.  Because if that was the case, then every wannabe attorney in town would simply have their clients sign a power of attorney or land trust document and thus avoid the hassle and expense of going to 3 years of law school and passing the bar exam. Duh!

I was still a little skeptical about all this actually being true fraud because I couldn't find anyone who had come flat out and put all this in writing.  But then I found this memo from Fannie Mae in July 2009.

If you notice on the Fannie Mae website, they don't talk about disclosure at all.  The title of their article is simply "Mortgage Fraud News: July 2009."  The whole article discusses how title companies and lenders can detect and avoid a short sale double closing. Read that any way you want. Again, this article is on Fannie Mae's website.

Now that I have scared the hell out of you, I want to make two upbeat and positive points on short sales and double closings. 

(1) In September 2009, Florida's largest title insurer The Fund issued a much more liberal"clarification" memo on this topic. Fund short sale memo. The Fund is not requiring that the "true sales price/value" be disclosed to the short saling lender, but they are requiring that the "right to sell for a profit" be disclosed in the contract paperwork.  However they are also requiring that "no misrepresentations as to the value or ownership of the property" which again goes back to influencing the lender. 

(2) Secondly the Fannie Mae memo does not mention an out and out ban on short sale double closings. If it did then lenders, Fannie, Freddie, and a few others would simply not allow a re-sale the property within 30 days or whatever timeframe after the A to B closing.  I do see some lenders like Countrywide/Bank of America actually stating this in their closing instruction letters. 

Lastly, I have been asked several times by sellers, Realtors, and investors, about doing A to B to A transactions.  Basically doing the short sale and then immediately re-conveying or renting the property back to the original owner or a family member at a discounted price.  I won't even go there.  Lenders make all parties sign an "Arm's Length Affidavit" at the closing.  They know about this type of nonsense.  So, enough said about it.  Don't do it!

My point in writing this whole series is not to bash any gurus or scare any investor/buyers out of the marketplace.  However before you take anyone else's word on doing short sale double closings or any other "creative" technique, you need to make absolutely sure that you are comfortable with what you are doing.  Just because a guru or their attorney claims that their way of doing things is perfectly legal doesn't make it so.  Plenty of attorneys, real estate brokers, mortgage brokers, and so-called investors have been prosecuted over the years for just about anything you could imagine.  In fact just Googling the words "short sale double closing fraud" brings up over 1 Million results. 

The good news is that I have yet to hear or read about anyone being prosecuted for any of this.  Follow the Fannie Mae memo and the Fund memo to the letter and you should be doing just fine. At least until they change the rules again.

I've said it before, and I will say it again.  The whole real estate and mortgage industry is under a giant microscope right now and will be for quite a while into the future.  Be very careful where you tread. 

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Re-Blogged 6 times:

Re-Blogged By Re-Blogged At
  1. Renée Burrows 10/01/2009 12:52 PM
  2. Donald Bradbury 10/01/2009 01:19 PM
  3. Candice A. Donofrio 10/01/2009 02:49 PM
  4. Gene perez 10/02/2009 07:14 AM
  5. Angela Niece 11/05/2009 02:52 PM
  6. Leslie DeLuca 05/20/2010 05:48 AM
Topic:
Real Estate Sales and Marketing
Location:
Florida
Groups:
Investors
Foreclosures
Short Sales
Short Sales and Forclosures ONLY
Florida Real Estate Investors
Tags:
short sale fraud
short sale double closings
back to back closings short sales

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Rainmaker
571,312
Bill Gillhespy
16 Sunview Blvd - Fort Myers Beach, FL
Fort Myers Beach Realtor, Fort Myers Beach Agent - Homes & Condos

Hi Rob,  Wow, terrific review of this dark side of the short sale market.  Surely the lawsuits will follow.

Oct 02, 2009 04:02 AM #26
Rainer
149,327
Paul Warkow
Paul Warkow-D.G. Weber Law Associates - Hauppauge, NY

I have completed several of these "evil" double closings and I can tell you there has not been a problem.  The reason is that I fully disclose exactly what I intend to do.  I tell the seller right up front that the sales contract gives me an option to walk away if I cannot find an end buyer.  The seller, his listing agent (if there is one) or his attorney can either agree to this procedure or tell me to go away.  I make absolutely sure everyone knows exactly what is going on.  I insisit the seller sign not only an option contract, but a memorandum of understanding that goes down point by point exactly what I intend to do. There is no confusion, I will only buy the property if I can get a short sale approval and I find a buyer to buy the property from me.  Everyone knows I intend to flip the property.

As far as influencing the BPO, there is nothing wrong with that.  I am not making any false statments or artificially lowering its value.  The comment from Jim McCormack (comment 7) lays it out perfectly.  In fact, when I meet BPO agent, I give them a copy of the contract.  When I submit the short sale package to the lender, I supply a copy of the option contract.  When I enter into the contract with the end buyer, the contract gives me the option to walk away if I cannot get a short sale approval that is satisfactory to me.  The end buyer can agree to this or refuse to buy the property from me.  In sum, everyone knows I am flipping the property.  That includes the seller, the short sale lender, the BPO agent, the end buyer and the end buyer's lender (if there is one).  Where is the fraud?  If everyone knows exactly what I am doing and how I am doing it, where is the harm?

 

Paul Warkow

Oct 02, 2009 07:12 AM #27
Rainer
80,845
Gene perez
Greater Mortgage Solutions & Valley Hills Realty - Santa Maria, CA

GREAT POST good JOB!!!! definately reblogging

Oct 02, 2009 07:14 AM #28
Rainmaker
913,876
Rob Arnold
Sand Dollar Realty Group, Inc. - Altamonte Springs, FL
Metro Orlando Full Service - Investor Friendly & F

James - The only difference with your Craigslist lawnmower analogy is that there are specific federal laws in place that discuss influencing the lender and the appraisal. I referenced those sections of the federal banking laws in article 3. The federal government doesn't care if you influence the lawnmower sales price, but they care greatly about you influencing the appraisal / BPO.  I agree that with full disclosure to all parties that there should not be a problem.  The Fannie Mae memo and Fund memo appear to indicate that as well. The key is disclosure.  But you can't have it both ways.  You can't be telling the lender it is worth $150K when you know it is worth $160K.  If you stay out of the appraisal process, you should be OK as long as you don't do some other deceitful thing.  Criminal defense is different - the 5th amendment of the Constitution has specific prohibitions about self-incrimination, right to attorney, state has to prove its case, etc. 

Oct 02, 2009 07:45 AM #29
Rainmaker
913,876
Rob Arnold
Sand Dollar Realty Group, Inc. - Altamonte Springs, FL
Metro Orlando Full Service - Investor Friendly & F

Carla - The banks that jerk us around so much are jackasses. What more can I say?

Aaron - Read the federal statutes I referenced.  It is a serious crime to fraudulently influence the value on a federally backed mortgage transaction.  Double closings are not illegal if done with full disclosure and without commiting loan fraud in the process. Sellers are harmed only if the short saling lender comes back and renegs the transaction after the fact.  If the lender claims fraud, the seller is the one who gets screwed yet again.

Paul - If you read through all 3 of my articles, you will see that disclosure and avoiding all this funny business is the key.  Meeting the BPO agent and handing them a copy of the contract or option is one thing.  It is a totally different thing to also hand them a stack of lowball comps and tell them that we have been trying to sell this place for 6 months and the best we could do is $150,000 when you know that the true best you could do is $160,000.  Just don't even hint at anything untruthful. 

 

Oct 02, 2009 07:55 AM #30
Rainmaker
225,938
Jackie Hawley
ReMax Encore - Clarkston, MI
Southeast Michigan Real Estate

From an agent's perspective, the problem with a double closing is if the agent is also the buyer/investor OR turns over the entire transaction to the buyer/investor to negotiate with the lien holder(s) on behalf of the agent's client (the seller). Not all states have agency, but in states that do (like Michigan where I'm at) I don't see how we would be working on behalf of our seller client to turn over the negotiating to the buyer. Listing agents need to remember who they work for- and that's not the bank or the buyer. Listing agents work for the seller and are supposed to look out for the sellers' best interests.

Oct 02, 2009 09:39 AM #31
Ambassador
555,518
"The Lovely Wife" (Broker Bryantnulls Wife) The One And Only TLW.
President-Tutas Towne Realty, Inc. - Kissimmee, FL

Rob...

I'm troubled by some of what I've been reading as I romp around the Rain.

I'm so glad you posted this. No matter how the truth gets twisted, fraud is FRAUD.

A RE license is not worth a few thousand dollars. Especially, for those who are in this business for the long haul.

TLW...ROAR!

Oct 02, 2009 09:55 AM #32
Rainmaker
1,135,756
Bryant Tutas
Tutas Towne Realty, Inc and Garden Views Realty, LLC - Winter Garden, FL
Selling Florida one home at a time

Good info Rob. This stuff is really not complicated. If you have to hide something from the lender to get the deal done then chances are pretty darn good it's fraud.

Oct 02, 2009 09:58 AM #33
Rainmaker
185,424
Cameron Wilson
Labrum Real Estate - Murrieta, CA
The Short Guy - Murrieta,Temecula,Menifee Californ

I just stay away from the folks who want to do this with my short sales even when they say all will be disclosed to everyone involved.

Should something not be dislosed it would be my butt who takes the hit as I have the RE license.

Oct 02, 2009 02:09 PM #34
Ambassador
1,994,344
Christine Donovan
Donovan Blatt Realty - Costa Mesa, CA
Broker/Attorney 714-319-9751 DRE01267479 - Costa M

There are a lot of crazy things happening out there right now.  I think I'm most comfortable not involved in the double closings at this point.  I need to do a whole lot more research before then.

Oct 02, 2009 05:06 PM #35
Rainmaker
161,786
Satar Naghshineh
Satar - Amiri Property and Financial Services Corp. - Irvine, CA

I am well educated on short sale and foreclosure flips before short sales were popular. As I stated before, I wanted to wait till you were done so I can comment and then tell you how to use this scenario without the investor.

First Off, Jim McCormack (comment #7) was absolutely correct. The lender is not party to the purchase contract and when they are trying to evaluate the value of the property, it is perfectly fine for me to show them the low comps. At that time, it is the BPO's job as to whether or not the BPO agent wants to use them. That's why I disagree with comments like:

"Because if you are doing everything in your power to influence the lender that the property is worth a low value and you know for a fact that you can immediately re-sell it for more, YOU ARE COMMITTING FRAUD plain and simple."

I've done BPOs where I have to meet someone because there is no lockbox or they meet me anyway. They give me their comps and I see if they are something I can or should use. If you look at a BPO form (you can download Fannie Mae from online) it does ask the BPO agent the low comps, mid comps and high comps and value if fixed up. It also asked if distressed properties were used and current market conditions. The bank is fully aware of what is going on and they will need to decide if they are willing to net what is on the HUD based on the values of the BPO. The lenders are not parties to the contract and they are not entitled to other offers, even if higher offers exists! Now that is both plain and simple and not fraud!

In regards to your response to Jim: "The federal government doesn't care if you influence the lawnmower sales price, but they care greatly about you influencing the appraisal / BPO."  You'll have to define "influencing". Giving actual low comps is not influencing (as stated above). Giving the BPO incentive, whether it be money or promises of future business, is influencing in my opinion.

Like I said, I was an investor before being licensed. I took the investor approach to short sales and applied it to the real estate agent approach and made my own system. OK...as promised, the new way of short sale flipping without the investor!:

You take a short sale listing. You list it at the high end of the comps and do a systematic price drop. You take the strongest buyer who was willing to pay the most for the property and have them re-write the purchase contract to a value in which you know you can pull off. For example an all cash buyer willing to pay 400k on a house which you know you can get for 360k. You have the buyer re-write the offer to 360k and negotiate from there with the bank. This allows and does the following:

1. Keeps the buyer in place. Usually the buyer leaves if they can find something better. Give them the better deal.

2. If expenses, such as deliquent HOA dues, reduced commissions, extra funds needed for 2nd lien holder, etc. come to play, then the buyer will be more than happy to pay for those expenses.

3. It protects against a declining market. So if it takes 4 months to negotiate a short sale and now the property is worth 380k, your buyer is still happy with the purchase.

4. The buyer will be more than happy to buy personal items and fixtures from the seller, which gives the seller some money legally to move.

There are more points, but these are the basics. So now you are doing the same thing the investor was doing, but to the seller's benefit. Also, investors in short sale flips do NOTHING to earn money. They use other people's money (called flash cash) or no money to do this deal while profiting. They also use the real estate agent's time and skill to find both the seller and the end buyer. I mean, what a time to be an investor and have these idiot agents make you rich!

Thanks for the blog.

 

 

 

Oct 02, 2009 06:17 PM #36
Rainmaker
913,876
Rob Arnold
Sand Dollar Realty Group, Inc. - Altamonte Springs, FL
Metro Orlando Full Service - Investor Friendly & F

Satar - The federal statutes referenced above cover influencing appraisers and deceiving institutions.  And their definitions are very liberal.

How do you handle #2 and #4 on the list?  Typically buyer and seller sign an arm's length affidavit that there are no side transactions.  Additionally there is a short sale closing instruction letter that the parties have to sign stating that there is no additional money being paid by the buyer outside of closing not showing on the HUD statement.

Odds are nobody will get caught, but ...

Jan 02, 2010 04:25 AM #37
Rainmaker
161,786
Satar Naghshineh
Satar - Amiri Property and Financial Services Corp. - Irvine, CA

#2 - It's on the buyer's side of the HUD. Usually on line 1004. Nothing we do is outside of closing.

#4 - This is a deal between the buyers and sellers only and no real estate agent can/should be involved. This deal cannot be connected contractually with the sale of the property. For example, I have a short sale right now where the seller is selling the solar panels on the roof. Whether he sells it to the buyers or sells it to a solar panel installation company is none of my business. What I did on the real estate side of the transaction is to exclude the solar panels from the sale of the property. My job is done.

My take on them trying to control the short sale is that they are not parties to the contract. They should be given a net payoff amount and they will either need to approve it or deny it based on whatever their business requirements are. They shouldn't even have access to the buyer's side HUD.

Influencing appraisers is always a bad idea. I've seen some short sale education seminars talk about offering money, gift cards and promise of future business if the appraiser comes in at a certain number. That is plain wrong in my book. However, to show low comps and point out material facts that will affect value (such as a plumbing issue) is not wrong. I guess the line gets crossed when you tell the appraiser what you think the value should be instead of letting them come to their own conclusion based on the facts presented.

 

Jan 03, 2010 09:55 AM #38
Anonymous
Ed

Satar. you, Jim, Aarorn, and Paul are the only commenters on this blog who have anything intelligent and informative to offer to this discussion. All the other blatherers offer up their opinions while admitting they know nothing of the process.

I have been doing short sales as a negotiator and sometimes investor since 2003, before most of the commenters here had even heard of them.

As previously stated, as long as full disclosure is made in the option contract and to the legally entitled parties. I have never even had the sniff of fraud in any of my deals or those negotiated by colleagues in my area.

But all you ignorant scaredy cats go ahead and only concentrate on the 3% of the market that embodies fraud, and completely ignore the lucrative short sale market. More for Satar, Jim, Aaron, Paul and me.

Feb 12, 2010 04:17 AM #39
Rainmaker
913,876
Rob Arnold
Sand Dollar Realty Group, Inc. - Altamonte Springs, FL
Metro Orlando Full Service - Investor Friendly & F

Ed - I have loosened some of my concerns on this issue since this blog came out.  The only reason though is that several of the title insurers have laxed their positions on the issue. 

However I disagree with you about the "ignorant scaredy cats" stuff.  If you think that the government is not cracking down on this, then you are just plain reckless and irresponsbile.  I personally know 3 people in my area that have been indicted in federal court due to mis-respresentations on short sales.  1 of them has been in prison for over a year now.  Some of the highlights are in this November Orlando Sentinel story.

 

Feb 12, 2010 05:41 AM #40
Rainmaker
161,786
Satar Naghshineh
Satar - Amiri Property and Financial Services Corp. - Irvine, CA

Ed - Thanks. Like you, I've been doing this since the beginning.

Rob - The peple who got in trouble were obviously doing something wrong. Ed is correct; When you are ignorant, it is easier to cry "fraud" than to educate yourself. Just three weeks ago, I was asked to help evaluate a short sale flip. Everything on the flip was legit. The lenders didn't even care that it was going to be flipped or who the buyers were. There was just a simple stupid mistake from the B to C transaction that killed the deal. So it an be done, even today. The government might be cracking down on this, but only to the ones who do something wrong. A short sale flip can be done legally and ethically. I also see no difference between an agent who collects a commission and an investor who makes money on a short sale.

 

Feb 12, 2010 06:25 AM #41
Rainmaker
913,876
Rob Arnold
Sand Dollar Realty Group, Inc. - Altamonte Springs, FL
Metro Orlando Full Service - Investor Friendly & F

Satar - I agree with you that there is a right way and wrong way to do these deals.  Which is a reason why I have gone into such great lengths with these articles.  If they were completely illegal, then Fannie Mae, Freddie Mac, etc. would come right out and say this.  The right way is (1) to follow whatever guidelines the title underwriter requires, (2) not falsify any documents to the short saling lenders, and (3) not to do anything to influence the lender's BPO or appraisal.  If you stick to those 3 things, then it is no problem making a $100K profit.  If you don't stick to those guidelines, then watch out.

Did you see this latest blog? Short sales can get you arrested!  It doesn't give all the details of the transaction which I assume involved one of the 3 violations I just mentioned above. But again it points out that you can get in tremendous trouble for doing things wrong.

I wonder how comfortable everyone would feel if the attorney general or a grand jury were to look in detail at everything that was done in a particular transaction??? If you are doing these sort of deals, you need to keep in mind that some government person may want to audit your file even a year after you completed the deal.  I spoke with one of the people referenced in the Orlando Sentinel article back in November.  She told me that over a year had passed since her deal was done and then the FBI came knocking on her door.

Feb 24, 2010 12:39 PM #42
Rainmaker
2,332,887
Tony and Suzanne Marriott, Associate Brokers
Haven Express @ Keller Williams Arizona Realty - Scottsdale, AZ
Serving Scottsdale, Phoenix and Maricopa County AZ

Short Sale Buyers and Sellers who ignore the Arms Length requirements risk legal consequences - both criminal and civil.

Dec 16, 2010 01:29 AM #43
Anonymous
Seriously?

A BPO (Broker Price Opinion) is not an appraisal.  BPO agents are usually Realtors, not licenced appraisers, that can't get properties to sell or clients to buy and doing these are at least some sort of income.  Nothing wrong with that but lets call it correctly.  Usually these people are also working towards getting in the good graces of an asset manager to become an REO agent and influence them to sending bank assets to them because of previous favors.  You really should look into this side of the market as I have seen people go as far as buying seriously expensive dinners as as far as Super Bowl tickets to influence asset managers to send them more listings/assets.  Everyone is trying to influence someone to get a transaction completed and get paid.  If not, your calling is social work and not business.    It sounds like most people here have no idea how deep the rabbit hole really is.

Feb 12, 2011 05:10 AM #44
Anonymous
Robert

I agree with Paul Warkow as I am completely upfront and honest with both buyer and seller as well as disclosing all costs with all parties. My only question really is does anyone know of a title company in Texas that will do a simultaneous closing or double escrow or assignment transaction. I don't think it would be difficult as I am upfront about all info but need to find a solid and reputable title company. If anyone knows of one it will be much appreciated. Thanks

Oct 30, 2012 08:37 AM #45
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