The FHFA lawsuit league table

By Felix Salmon
September 3, 2011
lawsuits.

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With the help of Nick Rizzo, I’ve done some basic number crunching on the FHFA lawsuits. I used three different metrics to see how aggressive any given lawsuit was: the number of individual named defendants; the total number of pages in the suit; and whether it asked for punitive damages. My favorite of the last form is the one taking aim at the Squid (which, incidentally, quotes Matt Taibbi at the bottom of page 77):

Goldman Sachs Mortgage Company, GS Mortgage Securities Corp. and Goldman, Sachs & Co.’s misconduct was intentional and wanton… Punitive damages are therefore warranted for Goldman Sachs Mortgage Company, GS Mortgage Securities Corp. and Goldman, Sachs & Co.’s actions in order to punish them, deter them from future misconduct, and protect the public.

In any case, here’s the league table. I calculated a total score by taking the number of pages in the lawsuit, adding the number of individual defendants multiplied by 10, and then adding an extra 100 points if the FHFA was asking for punitive damages:

table.tiff

JP Morgan, here, is the clear winner — until you realize that Bank of America is split into three different parts. If you take Countrywide, Bank of America, and Merrill Lynch and add their scores together, then the total for BofA reaches 884 points, and no I’m not going to worry about double counting.

All silliness aside, the total number of named defendants here, including various different individuals and corporate entities, is a whopping 268, including a small amount of double-counting. This is a full-employment act for lawyers, and I’m pretty sure they’re going to be fighting this one out for a long time; I can’t imagine, having put all of this work into these suits, that the government is going to be remotely willing to simply give all of these banks blanket immunity as part of a global settlement with the 50 state attorneys general.

I’ll have more on the substance of the suits later; suffice to say that they’re strong, and aggressive, and exactly what I’ve been looking for for a while. These banks lied to investors when they put together mortgage securitizations. And one way or another, they’re about to start paying for that. About time too.

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Comments
32 comments so far

“I can’t imagine, having put all of this work into these suits, that the government is going to be remotely willing to simply give all of these banks blanket immunity as part of a global settlement with the 50 state attorneys general.”

I’m not so sure it’s just not posturing. The scarriest thing I can say about this whole mess is that with zero employment growth and near zero GDP the goverment needs the big banks as much as the big banks need the goverment.

Think back to the massive tobacco settlement… the’ve killed by some estimates 25 million people and the states settled with them. Just like with tobacco there are no (or if you want to be technical a statistically insignifant number of) innocent victems. The mortgage brokers and banks might be the most guilty but the people making 40k buying 400k houses all signed and filled fradulent applications.

The crooked bankers and crooked borrowers both got what they deserved. The mortgage brokers and executives have got the best of it so far.

Posted by y2kurtus | Report as abusive

I am hoping that one of the things that comes out of the new lawsuits and investigations is the ability to distinguish between people and institutions (even though the Supremes don’t understand that there is a difference).

I think decisions on whether or not to bailout banks or put them under needs to be a very cold, calculating decision looking at the big economic picture.

However, that doesn’t mean that the executives and their assistants (robo-signing attornies etc.) should be treated the same as the banks. An individual person or a committee soemwhere in these organizations made the decision to break laws, conduct fraudulent conveyance, forge signatures, commit perjury on affadavits and on and on.

These people need to be sued individually or brought up on criminal charges. Punishing the shareholders and the economy while allowing the actual perpetrators to walk away with millions of dollars is simply demanding a repeat of this debacle in the future. People seeing public trials, jail time, and major wealth-stripping fines will think twice about cmmitting these types of actions, at least for a few years.

Unfortunately, the Obama Administration’s position has been to give these people even more money through TARP and ZIRP without actually solving the economic problems. The worst punishment to date is that they get made fun of in Rolling Stone magazine and on the Daily Show while they continue raking in millions of dollars per year.

Where are the perp walks?

Posted by ErnieD | Report as abusive

What I’d really like to know is what happened inside the Obama administration. Did Obama know that this suit was about to be filed? He seemed to want to let the banks off free. Was this done against his wishes? Is there a hero in the FHFA?

Posted by RussAbbott | Report as abusive

And of course, what are the implications for investor lawsuits? Will the FHFA expose enough evidence that private entities can use, or at least lead them in the right place for discovery?

Or has the statute of limitations expired on most private purchases of these securities?

Posted by AngryInCali | Report as abusive

ErnieD, given these are not criminal investigations unlikely to be “perp walks”. Bringing them up on criminal charges would involve actually proving that one of them committed a criminal offence as opposed to just mouthing off. Obama didn’t give the banks money via TARP, maybe you are confusing Obama with Bush?

AngryInCali, private entities did sue. This is usually what happens after bubble bursts, the idiots who bought the worst crap at the top turn round and point fingers at someone else.

Posted by Danny_Black | Report as abusive

The problem with ErnieD’s wish for the back office paper pushers doing 6 months in minimum security are many:

#1 there is broad acceptance that if employees of a company are acting in breach of law, by say highering illegeals, unlawful pollution, copywrite infringement… or whatever then all our precidnt as a society is to hold the company, not the employee responsible.

A few months ago Felix did a nice peice on some individuals, including mortgage brokers, and some borrowers who bought 5+ properties under clearly false pretences were being prosecuted. So there is at least some justice being done.

If you want more justice than lets tax cash compensation by financial institutions in excess of 1,000,000/annually at a confiscatory tax rate of 75%. Anything over a million needs to be longterm incentive based comp paid in stock with a TEN YEAR lock up period. That would strongly encourage dividends (because if I own 10 million worth of stock I can’t sell then I at least want a nice divy.) And it would make safety and soundness the top priority of every CEO in the country.

Posted by y2kurtus | Report as abusive

Am glad to see the shaved monkeys are managing to mangle even more of the story than usual. The complaints say that Frannie bought 196bn of bonds and the “journalists” wrote that the banks are being sued for that amount. It has long been evident that neither a passing acquaintance with the subject matter, remedial numeracy nor a desire to do the most rudimentary fact checking is a requirement for the job of financial “journalist” but it seems that ability to read is now optional too.

PS have you read the “evidence” being put forward? Cut and pastes of bloggers and said dimwit journalists.

Posted by Danny_Black | Report as abusive

” with zero employment growth and near zero GDP the goverment needs the big banks as much as the big banks need the goverment.”

that supposes that big banks are somehow drivers of job creation. maybe that assumption is wrong. maybe, in fact, big banks destroy job growth, because they centralize the economy, waste tax money, and strangle honest people and small businesses – which are fully able to be supported by small banks.

Posted by decora | Report as abusive

Who gets the money from these lawsuits if the FHFA is successful? So far, no one can tell me. I have guesses, but not sure.

If the FHFA is acting as conservator for Freddie and Fannie, are Fannie and Freddie getting the money? Or does it go into the coffers of the US Budget, or the FHFA? Or do the mortgage borrowers get any of the money?

Posted by iheartWallSt | Report as abusive

2 GRAPHS THAT EXPLAIN ALL

1.The bad mortages were originated during 2004-2006 because at that time, the conventional, conforming mortgages had a low percentage as total of mortgages originated (between 33%-47%). See graph in page 4.
http://www.fhfa.gov/webfiles/21169/Conse rvator%27s_Report_4Q_4_20_11.pdf

2.And who packaged those bad mortgages during 2004-2006 and sold to investors or to FnF? Private-label MBSs issuers had the highest market share vs FnF/FHA.
http://www.housingwire.com/wp-content/up loads/2011/07/GSE1QMBSissuances.png

Private-label MBSs issuers went crazy at that time, and now FnF want to recoup the losses in their investments in private-label MBSs sold with fraudulent information.

Posted by QJOA | Report as abusive

iheartWallSt, presumably it will got part way to paying the more than 130 billion the US government lost bailing out the Chinese and Russians who sunk well over a trillion dollars into Frannie paper. Weird, everything that people complain about the Broker/Dealers is true about Frannie yet they are magically the victims. Joys of being on the buyside.

Posted by Danny_Black | Report as abusive

QJOA, or – and obviously i am thinking completely outside the box – Frannie went nuts at the top of the market with a government backstop that to date caused cash losses to the US taxpayer of 130 billion USD. They also are the ones who drove down the fees for servicing and put in place hard deadlines for foreclosures – leading to cutting corners on that process. Their debt holders were made whole and to date not a single person there has been held account. Very definition of a victim right?

Posted by Danny_Black | Report as abusive

“suffice to say that they’re strong, and aggressive, and exactly what I’ve been looking for for a while. These banks lied to investors when they put together mortgage securitizations. And one way or another, they’re about to start paying for that.”

i agree.

unfortunately, this is why the powers that be will not allow this action to go forward. defendants will pay a fine (meaning the shareholders will pay) and merrily fly off into the sunset in their corporate jets

Posted by arrgh | Report as abusive

iheartWallSt, it sounds like the Government agencies want to be sure they get their share before the banks go down.

Subprime mortgages were supposed to help people, neighbourhoods and the economy. But as usual everyone got their cut and the people and taxpayers were screwed, not helped.

It cost the taxpayers $153b to bail out FM and FM. They have their own problems with collusion and innovative accounting methods so their names are not being bandied, but that’s what this is all about.

This suit is restitution, plus damages, that will ultimately help a lot of law firms make a bundle, and get those unemployed lawyers back to work, but no, no homeowners will be helped. That is still in the incompetent hands of the AGs.

Posted by hsvkitty | Report as abusive

arrgh, yet weirdly you have no issue with Frannie executives going off into the sunset,,,

Posted by Danny_Black | Report as abusive

Danny Black:

I understand that these are civil suits with a “preponderance of the evidence” burden of proof. However, the discovery process will uncover a lot of information that may lead to criminal prosecutions with a “beyond reasonable doubt” burden of proof. Bill Black et al made about 10,000 referrals to DoJ in the aavings and loan crisis which resulted in a 1,000 prosecutions.

It appears that numerous mortgages and notes were not conveyed into the securitization trusts as required under the PSAs. Yet, the MBS’s were sold as if the trusts held the mortgages. How would this not be a fraud?

Meanwhile, the robosigning process clearly is relying on affadavits with post-dated forged signatures by people who have not examined the documents as attested in the affadavits. These documents are the equivalent of sworn testimony in a court of law. How would this not be perjury?

Posted by ErnieD | Report as abusive

ErnieD, by numerous you mean a tiny percentage? Why would it be fraud?

My understanding of the robo-signing is the offence is a civil one not a criminal one.

We will see but I predict a settlement sometime in 2012 where the banks pay some F off money – probably single digit to very low double digit billions – to the government and Mr Salmon writes another conspiracy laden article about how no one is daring to take on big banks. After all, no votes in it right? Look what happened to Mr Levin when managed to demonstrate a command of the facts that hsvkitty would be proud of.

Of course, none of the people who really deserve to be in court will see the inside of it – ie Frannie execs.

Posted by Danny_Black | Report as abusive

Danny, I think I’ve got to agree with ErnieD on the facts. I do not think the % of misshandled securitizations is trival. I bet at least 10% of them have been misshandled and that would represent hundreds of billions worth of mortgages.

I would also be shocked if less than 25% of forclosures in the hardest hit areas suchs as Florida or Nevada involved robosigning and intentional shoddy paperwork.

Where I disagree with ErnieD, Hsvkitty, and most others, probably including Felix, is WHO CARES?

Who cares that banks are cutting corners and breaking the law on a massive scale trying to seperate delinquent borrowers from collateral. It is not possible for banks to process two million forclosures per year without tens of thousands of mistakes being made.

As we discussed in Felix’s most commented blog up to that time, 0.0% of “wrongful” forclosures involve banks trying to evict people who were current on their mortgages. We found 1 guy who got locked out of his 2nd home wrongly and got it flooded with fish juice… did anyone follow up to find out how much cash he got from BofA for that desaster.

The simple truth is that banks are breaking the law out of necessity and the goverment is not going to do anything substantive about it because the administration and the courts understand that society needs to efficently seperate collatteral from those who have defaulted on their loans.

Do I wish all banks had their act togeather like mine does. YES. Do I wish mistakes were never made and the right forms were filed in the right order at the right time. YES we all want that. Sadly this is the real world, and if you start handing out houses to people who don’t pay for them every time a bank makes a mistake with the loan then banks stop making loans. That means depression.

Posted by y2kurtus | Report as abusive

y2kurtus, contrary to what seems to be the belief I didn’t work on a mortgages desk and certainly not in primary issuance but given that most mortgage securitisations were vanilla, qualifying agency deals I would be surprised if it is more than very low single digits. In the more exotic types of mortgages and private label, I am sure it might be slightly higher but they were a relatively small section of the market. Again overall I would expect it to be tiny. Note this case is talking about 196bn of bonds – assuming we can trust BLP to get the basic numbers right – which is not even 1%, but i guess FHFA sues over 196bn makes a better headline than FHFA sues over a couple of percent of its portfolio.

As for the foreclosures, I agree that the people who defaulted on their loans need to be out of those homes yesterday. I think the banks should be punished for shoddy work but most of this noise about notes and robo-signing is coming from lawyers dragging out a process that sooner or later, cheaply or more expensively ends in someone losing their home due to default. Personally I think you do no one any favours by racking up legal bills and putting off the inevitable but then again I am not a lawyer talking my book to a journalist who then uncritically regurgitates it.

As for cutting corners, this is solely because they are driven by investors to do the foreclosure in a certain time period at a certain cost. The biggest and most aggressive of them was…. Frannie.

Posted by Danny_Black | Report as abusive

y2kurtus:

Why is there a NECESSITY to break the law?

This was cost-cutting without thinking about the consequences, plain and simple. They wanted to securitize, didn’t bother to staff up to make the necessary steps happen, and then falsified documents in order to catch up. Adequate staffing by the banks through the mortgage boom would have allowed for them to execute the necessary steps. They booked profits based on these cost-cutting measures and now expect to book more profits by breaking the law.

Danny Black – when did perjury and forgery become a civil issue only? Try that one on a judge if you are asked to testify in a trial. My guess is that he would simply tack on 60 days in the clink just for the fun of it for even suggesting it. Hell, they are going after Roger Clemens on a criminal basis for potentially perjuring himself in a Congrssional hearing on whether or not he used steroids.

I have zero sympathy for people who bought too much house. However, the fact that there was amass hysteria by homebuyers and the financial sector does not mean that we should throw a few centuries of property law out the window. Property law is one of the basic pillars of civil society and capitalism. Suspension of property law due to “necessity” is one of the first steps in fascism and communism.

The banks need to staff up and thake those costs onto their books. If their legal problems are so big that even that won’t fix it, then we may be staring at a Sweden solution where we take over those banks, do an RTC, and throw miscreants in jail.

BTW, I am a professional engineer. I can’t even conceive of doing to my reports what these lawyers and notary publics are doing to their affadavits. I would expect to get hammered by both civil and criminal charges if I made stuff up, forged documets and signatures, handed my stamp around the office willy-nilly, and lied in affadavits to the court when I do expert witness work.

Posted by ErnieD | Report as abusive

ErnieD, I do have sympathy for people who either caught up or who have had their circumstances significantly change. I have no sympathy for people trying to find technicalities to get out of contractual obligations.

I don’t agree with Y2kurtus that the banks should be allowed to cut corners. It is important to remember what is going on here. In virtually every single case the person being foreclosed on is rightfully being foreclosed on. Nobody is having their property taken away wrongfully in principle. We went through this on a previous post and the number of cases where a completely current borrower – or a non-borrower – was being foreclosed on was tiny. From recollection, after extensive searching some 4 cases. The number of people being foreclosed on due to some error by the banks handling payments is bigger but similarly tiny. The vast majority of these cases it is people pulling a Clinton and quibbling over the mean what “sex with that woman” means. This is what really is swamping the banks. People demanding to see the original note when there is simply no dispute they signed the mortgage, but simply to ramp up the time and cost for people they know are on a meter.

As for making mistakes in securitisation, the number of trusts that have fallen apart due to these claimed errors is, as far as i am aware, currently zero. You have the odd loan here and there put back and this is with people crawling all over them trying to find a way out of taking a loss. I stand by my original estimate of the number of errors made in MBSes being in the low single figures percent and probably not even a percent by value. This for sure was a storm in a teacup.

I remember there was a treasury report that found some sort of error in up to 10% of foreclosure documents they surveyed. It maybe the case that over 90% of all work you have done is utterly perfect but in that case I have never come across a building you designed because every single one has some sort of flaw.

The real solution to this is streamline and automate more of the process a la MERS.

Posted by Danny_Black | Report as abusive

Danny Black:

The banks acted as if MERS was the law of the land. Unfortunately, property law is a “states’ right” per the US Constitution. The banks will need to get property law changed in all 50 states plus DC in order to make MERS the law of the land.

MERS is still playing out in various states’ courts with varying verdicts. It appears that MERS was not a valid way to transfer property and note ownership in a number of states. This is likely to cause future title issues.

I don’t think that there is any question that the vast majority of the people who have been foreclosed on should have been foreclosed on. The big question is : by whom?

A future homebuyer wants to know that the title is clean and liens are extinguished. If there are significant questions out there about whether or not the entities that foreclosed had the legal right to foreclose, then title is in doubt. Banks cutting corners is not a valid reason to have a signficant percentage of titles in this country potentially in doubt.

Because the banks “industrialized” the process, it is likely that errors would be systematic and widespread. In enginering, we generally try to keep errors small and non-systematic with adequate factors of safety to absorb some potential defects. That is why you rarely see structures in North Amarica and Europe fail if they are properly maintained.

BTW, the $100B lawsuit by FHFA may be the first major step in blowing up the securitizations. I hope that the banks and trust companies have not engaged in such egregious business practices that a fundamental underpinning of a major portion of the bond markets becomes undermined. Unfortunately, the past several years have shown me that the financial sector has engaged in poor business practices with reckless abandon.

Posted by ErnieD | Report as abusive

ErnieD: “Why is there a NECESSITY to break the law?”

Because there is no alternitive after the fact. Forclosure gate is a very big but very simple math problem desguised as a legal problem. Let us assume that in 10% of all forclosures because of poor document management, poor record keeping, whatever the banks can’t meet the steep legal requirements to forclose.

10% of 2,000,000 forclosures/year = 200,000 unlawful forclosures. If we assume an average unpaid balance of $200,000 then we stand at a nice round number of 40billion in annual losses… a dollar amount which flows to people who for whatever reason could not meet their obligations. Can we agree that the financial system cannot support that level of annual losses.

@ DannyBlack: I don’t think banks should cut corners. I work at an extreemly well run bank. We are the gold standard of customer service and compliance and all that… I’d love to see the big banks punished for their sins as ErnieD does…

…What I think ErnieD (and most of the public) dosen’t see is that the banks have been punished. WaMu failed… along with 41 other banks with assets greater than 1 billion dollars since 2008. All those shareholders lost +90% of what they invested. Many if not most of those bankers have not found another gig since the entire industry has contracted (and will continue to contract for years to come.)

Posted by y2kurtus | Report as abusive

y2kurtus, I think they don’t see it because they have had the facts systematically misrepresented. To read the press you would think that subprime involves kicking innocent people out of their homes for no reason when the reality is that it is the reason that millions of people are in homes they otherwise would not own ( Most subprime mortgages are not in default ). To read the press, one would think that the people being foreclosed on are the victims of banks who are somehow incentivised to kick out wholly innocent homeowners who are 100% up to date but the evil bank is fabricating evidence in an attempt to make lots of fees, when the fact is that virtually every single one of the people being foreclosed on is in default and the banks are not only NOT making out like bandits on running foreclosures but are LOSING money. To read the press, a multi-trillion dollar business is about to collapse any minute and investors who piled in at the top of the market are “victims”.

The above may sell newspapers but I am old-fashioned enough to think one of the aims of news is to give people who are not in the know about a field accurate information.

Posted by Danny_Black | Report as abusive

ErnieD, MERS has won virtually every single case. It has lost the odd case here and there – to great fanfare – but in the vast majority of cases its standing has not been successfully challenged. For instance, anyone follow up on those RICO cases that a few speculators brought against it with big fanfare a year ago?

It is pretty unlikely to cause title issues because foreclosure is pretty final for exactly the reason you said, which is that otherwise their would be worries about title.

In virtually all cases there is not issue about title. Lawyers feeding stories to muppet reporters may lie about the state of affairs but the facts don’t back them up. The percentage of foreclosures being thrown out due to title issues is trivial and I suspect in most cases that issue is easy to cure.

As for building falling down, none of the trusts have failed to my knowledge. The appropriate analogy would be with the number of buildings that have plugs that don’t work or AC which breaks down.

Posted by Danny_Black | Report as abusive

Danny_Black, my concern would be that robo-signing today would be a title flaw tomorrow. Something similar happened to me years ago, when I refinanced a property and the title examiner discovered that a right of first refusal to the builder should have been executed prior to my original purchase. For the want of a signature, my refinancing was held up until the original builder could be found.

I can see something like that coming out of all of this, where an improper signature or the lack of one would create a title flaw that would call a transfer into question. Any thoughts?

Posted by Curmudgeon | Report as abusive

My understanding is that once the house has been foreclosed on and the court has put it up for sale that is pretty final, just to deal with this issue. However, am not a lawyer, never worked in real estate and didn’t even work on a mortgages desk but this is what people who know have stated to me.

Posted by Danny_Black | Report as abusive

First of all, I don’t think anyone will ever convince me to feel sorry for Fannie and Freddie. If there was ever an entity that should have been able to analyze what they were buying, it was these two. Second, it is obvious in retrospect that subordination levels and correlation assumptions were too low, but investors were buying into those assumptions too at the time. Finally, while I recognize the unstoppable impulse to impose new regulations after a crisis, I think the pace and ambiguity is an embarrassment. I have always felt that the blame for the housing bust could legitimately be placed on almost all parties; originators, packagers, investors, regulators, rating agencies, homebuyers, etc. Time to stop crippling the banks!!!

Posted by CrazyMajority | Report as abusive

I’ve just learnt that to talk about the Statute of Limitations for Fannie and Freddie, there is a specific Law written in 2008. (see page 91, under “statute of limitations” in the 2008 law)
http://www.mbaa.org/files/ResourceCenter  /HERA/HousingandEconomicRecoveryActof20 08-asenacted.pdf
It’s not true that the lawsuits were filed because the Statute of Limitations expires three years after Conservatorship, because all the securites sued were originated after September 2, 2005, therefore the clause (II) should apply.
The Law says “ in the case of any tort claim (fraud), the longer of:
(I) the 3-year period beginning on the date on which the claim accrues (the day Conservatorship began); or
(II) the period applicable under State law.”

And the longer period for securites issued after September 2, 2005 is clause (II): the period applicable under State law (6 years since the MBS was issued), not clause (I) as the press continues to say.

The clause (I) should apply if there was a security issued before September,2005, because the longer the period would have been the 3-year anniversary of Conservatorship.
But there aren’t securities issued before September 2005 sued. All those fraudulent securites, because of the statute of limitiations in the 2008 Law, now can’t be sued because we will be 3 years after Conservatorship on Thursday!! Neither the clause (I) nor (II) can be applied after 3-years of Conservatorship.
We know that the bad mortgages were originated from 2004-2007.
The FHFA has just one day left to file the lawsuits in court for the fraudulent securities issued before September 2005. The FHFA must do its duty.
Could you please investigate this issue?

Posted by QJOA | Report as abusive

By the way you know the FHFA wrote a press release specifically because idiot journalists were misrepresenting the case:

http://www.fhfa.gov/webfiles/22606/Lawsu itStatement9611.pdf

via Alea.

Posted by Danny_Black | Report as abusive

It can’t be said that Fannie and Freddie were completely innocent though . . . didn’t they themselves package bonds into similar securities in the early 2000s(which they are currently getting sued for by the SEC?)How could they not know the risk of the securities that they were buying from private banks when they had been manufacturing similar bonds only years earlier? I sympathize for individual investors that were mislead, but not fannie and freddie. Am I off base?

Posted by intrigue | Report as abusive

I had a huge post… but the site reloaded as I wrote, luckily for all of you… but most of it was just disgust for the 2 bankers (Danny Black retired and Y2kurtus who is a banker at a small “honest” bank) and their duplicity.

Black is praising MERS, which hid most of the mortgage securitiztion mess. It is a computer program, Danny, not an entity… but typical of you to praise how it “streamlines.” There were also vast numbers of notes not properly conveyed.

…And Y2k says it is necessary for banks to break the law in order to oust the owner expediently by whatever means possible.

There is no longer a justice system in America. It and the Government seems to have been captured by the bank.

Thank Goodness for Credit Unions!

Here is an excerpt from the book, The Monster: How a Gang of Predatory Lenders and Bankers Fleeced America, and Launched a Global Crisis
http://www.alternet.org/story/148577

Posted by hsvkitty | Report as abusive
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