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« on: August 14, 2006, 01:12:39 PM »

Fla Jur 2d, Assignment

s. 1 Generally; Definitions and distinctions

An unqualified assignment transfers to the assignee all the interest of the assignor under the assigned contract, and the assignor has no right to make any claim on the contract once the assignment is complete; unless authorized to do so by the assignee.
Hartford Ins. Co. of Midwest v. O’Connor, 855 So.2d 189 (Fla. App. 5 Dist. 2003)

An assignment generally refers to or connotes a voluntary act of transferring an interest.
DeCespedes v. Prudence Mut. Cas. Co. of Chicago, Ill., 193 So.2d 224 (Fla. App. 3 Dist. 1966), judgment aff’d, 202 So.2d 561 (Fla. 1967)

An “assignment” has been defined as a contract to transfer a complete and present interest in property or some other right, from the assignor to the assignee, limited in its application to a transfer of intangible rights, including contractual rights, choses in action, and rights in or connected with property, as distinguished from a transfer of the property itself.
Am Jur 2d, Assignments s. 1.

An “assignor” is a person who assigns or transfers property to another, while an “assignee” is one to whom an assignment is made.
Am Jur 2d, Assignments s. 6
“Assigns” are those person to whom property is, will, or may be assigned, either immediately or remotely, from or under an assignor, whether by conveyance, devise, descent, or act or law.
Am Jur 2d, Assignments s. 7

A “chose in action” is defined as a right to personal things of which the owner has not the possession, but merely a right of action for the possession.
Spears v. West Coast Builders’ Supply Co., 101 Fla. 980, 133 So. 97 (1931)

To be distinguished from assignment is the doctrine of subrogation, under which an insurer is substituted, by operation of law, to the rights of an insured; by contrast, an assignment generally refers to or connotes a voluntary act of transferring an interest.
DeCespedes v. Prudence Mut. Cas. Co. of Chicago, Ill., 193 So.2d 224 (Fla. App. 3 Dist. 1966), judgment aff’d, 202 So.2d 561 (Fla. 1967)

Where an agreement, on its face, appears to be a valid assignment agreement effecting a sale of contracts and notes, affidavits asserting that the purpose of the assignment is to effect a disguised usurious loan are insufficient to create a genuine issue of fact.
Foster v. Weber, 587 So.2d 857, 16 Fla. L. Weekly 1180 (Fla. App. 5 Dist. 1991)


s. 2 Equitable Assignments

Certain kinds of instruments have been recognized by the courts as valid equitable assignments, where it is necessary to effectuate the plain intent of the parties or where to hold otherwise would be unjust.
Giles v. Sun Bank, N.A., 450 So.2d 258 (Fla. App. 5 Dist. 1984)

No particular words or form of instrument is necessary to effect an equitable assignment, and any language, however informal, which shows an intention on one side to assign a right or chose in action and an intention on the other to receive it, if there is a valuable consideration, will operate as an effective equitable assignment.
Fla Jur 2d, Assignment, s. 18.

The true test of equitable assignment is whether the debtor would be justified in paying the debt to the person claiming as assignee.
Giles v. Sun Bank, N.A., 450 So.2d 258 (Fla. App. 5 Dist. 1984)

Any order, writing, or act which plainly makes an appropriation of a fund or debt, or a part of a fund or debt, may constitute an equitable assignment.
McClure v. Century Estates, 96 Fla. 568, 120 So. 4 (1928)


An equitable assignment may be parol, or partly in writing and partly oral, and may be completed merely by delivery of the subject assigned.
McClure v. Century Estates, 96 Fla. 568, 120 So. 4 (1928)

Sammis v. L’Engle, 19 Fla. 800, 1883 WL 2602(1883)

An equitable assignment has been distinguished from a legal assignment in that a legal assignment relates to a thing in being, while an equitable assignment relates to contingent interests, expectancies, and things potential.
Am Jur 2d, Assignments s. 5.

ASSIGNABLE RIGHTS, CLAIMS, AND INTERESTS

s. 3 Generally

As a result of the gradual adoption of equitable principles in the law courts, under modern law, assignments are freely made of a large body of rights which were unassignable under the early common law.
Richardson v. Holman, 160 Fla. 65, 33 So.2d 641 (1948)


Consequently, rights of action, choses in action, future or contingent interests, possible and existing estates or interests are assignable by statute or in equity, although the reverse was true under the common law.
Richardson v. Holman, 160 Fla. 65, 33 So.2d 641 (1948)
Trak Micowave Corp. v. Medaris Management, Inc., 236 So.2d 189 (Fla. App. 4 Dist. 1970)

s. 4 Choses in action

Assignability of choses in action is the rule rather than the exception, and practically the only classes of choses in action which are not assignable are those for personal torts and those based on contracts of a purely personal nature.
Ginsberg v. Lennar Florida Holdings, Inc., 645 So.2d 490, 19 Fla. L. Weekly D2117 (Fla. App. 3 Dist. 1994) , reh’g denied, (Dec 21, 1994)

Thus, parties can generally assign causes of action derived from a contract.
Fla Jur 2d Assignment, sections 6-10

Under former law, the general test of assignability of choses in action was whether the chose would survive the death of the assignor; rights which were strictly personal and which dies with the person were unassignable.
Selfridge v. Allstate Ins. Co., 219 So.2d 127 (Fla. App. 4 Dist. 1969)

Currently, it is provided by statute that no chose of action dies with the person, and that all causes of action survive.
F.S. 46.021, discussed in Fla. Jur 2d, Actions

Choses of action arising out of contract are assignable and may be sued upon and recovered by the assignee in his own name and right.
Spears v. West Coast Builders’ Supply Co., 101 Fla. 980, 133 So. 97 (1931)


United Companies Life Ins., Co. v. State Farm and Fire Cas. Co., 477 So.2d 645, 10 Fla. L. Weekly 2387 (Fla. App. 1 Dist. 1985)

s. 5  Future Interests

While future or contingent interests and possible and existing estates or interest were no assignable under the common law, present Florida law permits assignment of future or contingent interests, rights of action, choses in action, and possible and existing estates or interests.
Richardson v. Holman, 160 Fla. 65, 33 So.2d 641 (1948)

A vested interest which is to be realized in the future is assignable.
Richardson v. Holman, 160 Fla. 65, 33 So.2d 641 (1948)

CONTRACT RIGHTS


s. 6 Generally

Generally, causes of action derived from a contract are assignable.
Forgione v. Dennis Pirtle Agency, Inc., 701 So.2d 557, 22 Fla. L. Weekly S704 (Fla. 1997), answer to certified question conformed to, 132 F.3d 645 (11th Cir. 1998)
Department of Revenue v. Bank of America, N.A., 752 So.2d 637, 25 Fla. L. Weekly D118 (Fla. App. 1 Dist. 2000), reh’g denied, (Mar. 22, 2000) and review denied, 776 So.2d 274 (Fla. 2000)
National Union Fire Ins. Co. v. Salter, 717 So.2d 141, 23 Fla. L. Weekly D2105 (Fla. App. 5 Dist. 1998), review denied, 727 So.2d 908 (Fla. 1999)
W.S. Badcock Corp. v. Webb, 699 So.2d 859, 22 Fla. L. Weekly D2316 (Fla. App. 5 Dist. 1997)
Aaron v. Allstate Ins. Co., 559 So.2d 275, 15 Fla. L. Weekly D802 (Fla. App. 4 Dist. 1990)
Hall v. O’Neil Turpentine Co., 56 Fla. 324, 47 So. 609 (1908)
New Holland, Inc. v. Trunk, 579 So.2d 215, 16 Fla. L. Weekly 1120 (Fla. App. 5 Dist. 1991)

Contract rights can be assigned unless forbidden by the terms of the contract itself, or unless the assignment would violate some rule of public policy or some statute, or the contract rights involve obligations of a personal nature.
Restatement, Contracts 2d, s. 317


The assignee of rights and responsibilities under a contract is entitled to pursue any cause of action belonging to the assignor for breach of contract, regardless of whether breach occurred prior to the assignee’s receiving the assignment.
Escandar v. Southern Management and Inv. Corp., 534 So.2d 1203, 13 Fla. L. Weekly 2572 (Fla. App. 3 Dist. 1988)

If an assignee seeks to enforce an identified contract, he must show that all conditions have been performed either by himself or by the assignor.
Shreve Land Co., Inc. v. J & D Financial Corp., 421 So.2d 722, 35 U.C.C. Rep. Serv. 429 (Fla. App. 3 Dist. 1982)

REQUISITES OF A VALID ASSIGNMENT
s. 18 Generally

Except in cases where a writing is required by statute, an assignment may be by parol, as well as by deed or other writing.
Tunno v. Robert, 16 Fla. 738, 1878 WL 2255 (1878)
Mangum v. Susser, 764 So.2d 653, 25 Fla. L Weekly D1216 (Fla. App. 1 Dist. 2000)
Protection House, Inc. v. Daverman and Associates, 167 So.2d 65 (Fla. App. 3 Dist. 1964)

It has been held that no particular words or form of instrument is necessary to create an equitable assignment and any language, however informal, which shows an intention on one side to assign a right or chose in action and an intention on the other to receive, if there is a valuable consideration, will operate as an effective assignment.
Giles v. Sun Bank, N.A., 450 So.2d 258 (Fla. App. 5 Dist. 1984)

In order for the assignee of a claim on an open account for goods sold and delivered by the assignor to recover against the debtor’s guarantor, it is incumbent on the assignee to allege and prove the existence of a valid open account claim for the goods sold by the assignor to the debtor.
Alderman Interior Systems, Inc. v. First National-Heller Factors, Inc., 376 So.2d 22 (Fla. App. 2 Dist. 1979)

The mere sale of personal property does not convey to the buyer any causes of action the seller may have with respect to such property, absent a specific assignment to the effect.
Schmidgall v. Jones Boatyard, Inc., 526 So.2d 1042, 13 Fla. L. Weekly 1452 (Fla. App. 3 Dist. 1988), related reference, 588 So.2d 1033, 16 Fla. L. Weekly D2793 (Fla. App. 3 Dist. 1991), jurisdiction accepted, 599 So.2d 657 (Fla. 1992) and opinion approved of, 611 So.2d 512, 18 Fla. L. Weekly S43 (Fla. 1993)

s. 19 Consideration

A valuable consideration is essential to support an assignment.
Am Jur 2d, Assignments s. 128

While particular attempted assignments have been held invalid for lack of consideration.
Auerbach v. McKinney, 549 So.2d 1022, 14 Fla. l. Weekly 1516 (Fla. App. 3 Dist. 1989)

In other instances, assignments have been found to be supported by sufficient consideration.
Aaron v. Allstate Ins. Co., 559 So.2d 275, 15 Fla. L. Weekly D802 (Fla. App. 4 Dist. 1990)

The affirmative defense of lack of consideration can be raised only by the assignor.
McCampbell v. Aloma Nat. Bank of Winter Park, 185 So.2d 756 (Fla. App. 1 Dist. 1966)

It is provided by statute that it is unnecessary for the plaintiff, in any action on an instrument assignable by law, to allege the consideration on which the instrument was given or on which the assignment was made, or to prove the consideration or the execution of the instrument, unless it is denied by the defendant under oath.
F.S. 68.06, discussed in Fla Jur 2d, Bonds.


s. 20 Delivery

Delivery and acceptance of possession is essential to the consummation of the assignment of a chose in action.
Boulevard Nat. Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965)

For an assignee of a chose in action to acquire the right to stand in the shoes of the assigning creditor, he must acquire some “delivery” or “possession” of the debt constituting a means of clearly establish his right to collect; delivery of notice of assignment to the debtor fixes accountability of the debtor to the assignee.
Boulevard Nat. Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965)

Proper notice to the debtor of the assignment is a manifestation of such delivery.
Boulevard Nat. Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965)

The delivery of a written assignment is sufficient to vest in the assignee the legal interest assigned, and the absence of a seal on the assignment does not affect its validity.
Cotton v. Williams, 1 Fla. 37, 1846 WL 999 (1846)

s. 21 Notice to debtor

It is generally held that notice to the debtor is not necessary to the validity of an assignment of a debt or chose in action.
Walters v. Whitlock, 9 Fla. 86, 1860 WL 2046 (1860)

However, since an assignment itself does not constitute sufficient notice directing the debtor to pay the assignee, as opposed to the creditor, where there is nothing in the assignment requiring the debtor to pay the assignee,
City of North Miami v. American Fidelity Fire Ins. Co., 505 so.2d 511, 12 Fla. L. Weekly 849, 3 U.C.C. Rep. Serv.2d 837(Fla. App. 3 Dist. 1987)


Notice in necessary to charge the debtor with the duty of payment  to the assignee.
Boulevard Nat. Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965)

Proper notice to the debtor of an assignment is a manifestation of the delivery and acceptance which is essential to the consummation of an assignment, although notice to the debtor is not the only method of effecting a delivery of possession so as to put subsequent interests on notice of a prior assignment.
Boulevard Nat. Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965)


Proper notice to the debtor of an assignment is a manifestation of the delivery and acceptance which is essential to the consummation of an assignment, although notice to the debtor is not the only method of effecting a delivery of possession so as to put subsequent interests on notice of a prior assignment.
Boulevard Nat. Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965)

An assignment of accounts receivable is perfected if the account debtor has actual notice of the assignment, regardless of whether such notice comes from the assignee, before it pays out monies owed to the creditor.
Capital City Second Nat. Bank v. Peavy & Son Const. Co., Inc., 585 So.2d 1123, 16 U.C.C. Rep. Serv.2d 1240 (Fla. App. 1 Dist. 1991)

CONSTRUCTION, OPERATION, AND EFFECT OF ASSIGNMENT
s. 23 Generally

An assignment transfers to the assignee all the interest and rights of the assignor in and to the thing assigned.
U.S. v. Eleven Thousand Five Hundred and Eighty Dollars ($11,580) in U.S. Currency, 454 F.Supp 376 (M.D. Fla. 1978)
Department of Revenue v. Bank of America, N.A., 752 So.2d 637, 25 Fla. L. Weekly D118 (Fla. App. 1 Dist. 2000), reh’g denied, (Mar 22, 2000) and review denied, 776 So.2d 274 (Fla. 2000)
Rose v. Teitler, 736 So.2d 122, 24 Fla. L. Weekly D1465 (Fla. App. 4 Dist. 199)
State v. Family Bank of Hallandale, 667 So.2d 257, 20 Fla. l. Weekly D1992, 27 U.C.C. Rep. Serv.2d 638 (Fla. App. 1 Dist. 1995)

Assignment normally involves only the assignee’s acquiring the rights of the assignor and not necessarily the obligations, unless it is found that the assignment was also a novation.
Fla Jur 2d, Assignment, s. 26

An assignee may enforce payment or performance of an obligation due under the contract.
Superior Ins. Co. v. Libert, 776 So.2d 360, 26 Fla. L. Weekly D381 (Fla. App. 5 Dist. 2001)

And because an unqualified assignment transfers to the assignee all of the interest of the assignor under the assigned contract, the assignor has no right to make any claim in the contract once the assignment is complete, unless authorized to do so by the assignee.
Superior Ins. Co. v. Libert, 776 So.2d 360, 26 Fla. L. Weekly D381 (Fla. App. 5 Dist. 2001)

The assignee of rights and responsibilities under a contract is entitled to pursue any cause of action belonging to the assignor for breach of that contract, regardless of whether the breach occurred prior to the assignee’s receiving the assignment.
Escandar v. Southern Management and Inv. Corp., 534 So.2d 1203, 13 Fla. L. Weekly 2572 (Fla. App. 3 Dist. 1988)


s. 24 Construction of assignment

An assignment will ordinarily be construed in accordance with the general rules of construction governing contracts, in light of the circumstances surrounding the execution of the assignment, in order to ascertain and effectuate the intention of the parties.
Am Jur 2d, Assignments, s. 145

In construing an assignment, the court must determine (1) exactly what has been assigned to make certain that the plaintiff-assignee is the real party in interest, and (2) that a valid assignment has been made.
University Creek Associates, II, Ltd. v. Boston American Financial Group, Inc, 100 F. Supp.2d 1337 (S.D. Fla. 1998), related reference, 100 F. Supp. 2d 1341 (S.D. Fla. 1999), related references, 100 F. Supp. 2d 1345 (S.D. Fla. 2000), related reference, 101 F.Supp.2d 1370 (S.D. Fla. 2000)

s. 25 Applicability of equities and defenses

The assignee steps into the shoes of his assignor, and is subject to the equities and defenses that could have been asserted against the assignor had the assignment not been made.
Angora Enterprises, Inc.v. Cole, 430 So.2d 832 (Fla. 1983), related reference, 464 So.2d 229, 10 Fla. L. Weekly 509, (Fla. App. 4 Dist. 1985) and appeal after remand, 512 So.2d 349, 12 Fla. L. Weekly 2243 (Fla. App. 4 Dist. 1987)
Department of Revenue v. Bank of America, N.A., 752 So.2d 637, 25 Fla. L. Weekly D118 (Fla. App. 1 Dist. 2000), reh’g denied (Mar 22, 2000) and review denied, 776 So.2d 274 (Fla. 2000)
State v. Family Bank of Hallandale, 667 So.2d 257, 20 Fla. l. Weekly D1992, 27 U.C.C. Rep. Serv.2d 638 (Fla. App. 1 Dist. 1995)
Cadle Co. II, Inc. v. Stamm, 633 So.2d 45, 19 Fla. L. Weekly D295 (Fla. App. 1 Dist. 1994)
City Nat. Bank of Coral Gables v. H. & B. Const. Corp., 183 So.2d 704 (Fla. App. 3 Dist. 1966)


An assignee has no greater right than his assignor; consequently, it cannot be argued that a valid assignment may breathe life into the assigned instrument otherwise invalid.
Crossman v. Fontainebleau Hotel Corp., 273 F.2d 720, 80 A.L.R.2d 415 (5th Cir. 1959)
An assignee of an account takes the account subject to all outstanding equities, and cannot occupy a better position than the assignor.
Prestress Erectors, Inc. v. James Talcott, Inc., 213 So.2d 296 (Fla. App. 3 Dist. 1968)

The law is well settled that an assignee succeeds to his assignor’s rights under the assignment of a contract and takes it with all the burdens to which it is subject in the hands of the assignor.
Suniland Associates, Ltd. v. Wilbenka, Inc., 656 So.2d 1356, 20 Fla. L. Weekly D1454 (Fla. App. 3 Dist. 1995)

Thus, an assignee takes the assignment subject to such defenses as fraud or the operation of a statute of limitations.

In addition, a purchaser may properly assert a setoff against the purchase price owed the seller’s assignee for the loss suffered as a result of the assignor’s failure to deliver the total number of units it had contracted to purchase.
Shreve Land Co., Inc. v. J & D Financial Corp., 421 So.2d 722, 35 U.C.C. Rep. Serv. 429 (Fla. App. 3 Dist. 1982)

An obligor may not set off, against an assignee, an independent demand against an assignor which is in no way connected with the obligation assigned and which does not mutually exist between the obligor and assignee at the time the action is brought.
Nusbaum v. Riskin, 136 So.2d 1 (Fla. App. 2 Dist. 1961)

Thus, a counterclaim which was acquired by a debtor after he received notice of the assignment is not available against the assignee.

Nusbaum v. Riskin, 136 So.2d 1 (Fla. App. 2 Dist. 1961)

As a general rule, the assignee of a non-negotiable instrument or other chose in action takes it with all the rights of the assignor, and subject to all of the equities and defenses of the debtor connected with, or growing out of, the transaction itself that the obligor had against the assignor at the time of the assignment.
Union Indemnity Co. v. City of New Smyrna, 100 Fla. 980, 130 S0. 453 (1930)
Florida East Coast Ry. Co. v. Eno, 99 Fla. 887, 128 So. 622, 70 A.L.R. 506 (1930)
Mason v. Flowers, 91 Fla. 224, 107 So.334 (1926)
Haughey v. Heaney, 89 Fla. 102, 103 So. 400 (1925)
Birmingham Trust & Sav. Co. v. Jackson County Mill Co., 41 Fla. 498, 27 So. 43 (1899)
Fred S. Conrad Const. Co. v. Exchange Bank of St. Augustine, 178 So.2d 217 (Fla. App. 1 Dist. 1965)
 Nusbaum v. Riskin, 136 So.2d 1 (Fla. App. 2 Dist. 1961)
The assignee of a nonnegotiable right acquires no better right than the assignor had, notwithstanding his belief or good faith.
Town of River Junction, Fla. v. Maryland Cas. Co., 133 F.2d 57 (C.C.A. 5th Cir. 1943)

It is fundamental that the assignee of a contract or nonnegotiable chose in action occupies the same position as its assignor and is subject to the same equities, conditions, and defenses that could have been asserted against the assignor.
Fred S. Conrad Const. Co. v. Exchange Bank of St. Augustine, 178 So.2d 217 (Fla. App. 1 Dist. 1965)

The principle that an assignee takes the assignment of a nonnegotiable chose in action subject to any defenses the debtor has against the assignor extends to counterclaims and setoffs against the assignor, which the debtor can establish to reduce the sum recoverable against him.
Nusbaum v. Riskin, 136 So.2d 1 (Fla. App. 2 Dist. 1961)

s. 28 Assignee’s right to sue in assignee’s own name

Under the Rule of Civil Procedure that an action must be brought in the name of the real party in interest,
Fla. R. Civ. P. 1.210

An assignee of a nonnegotiable chose in action may sue, in his own name, on the cause of action assigned.
Harris v. Smith, 150 Fla. 125, 7 So.2d 343 (1942)

The negotiability of an instrument is immaterial where it is assignable, in so far as the right of an assignee to bring an action thereon in his own name is concerned.
Gamble v. Malsby, 67 Fla. 30, 64 So. 437 (1914)
Vinson v. Palmer, 45 Fla. 630, 34 So.276 (1903)
Formerly, courts of law refused to recognize the transfer of nonnegotiable choses in action, and an assignee could enforce his rights at law only in the name of the assignor for the use of the assignee.
Joseph Dixon Crucible Co. v. Paul, 167 F. 784 (C.C.A. 5th Cir. 1909)
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« Reply #1 on: June 19, 2010, 07:25:25 PM »

FL Law requires an assignee notify a debtor of an assignment of a debt:

The 2009 Florida Statutes
   
Title XXXIII
REGULATION OF TRADE, COMMERCE, INVESTMENTS, AND SOLICITATIONS
   
Chapter 559
REGULATION OF TRADE, COMMERCE, AND INVESTMENTS, GENERALLY


559.715  Assignment of consumer debts.--This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment within 30 days after the assignment. The assignee is a real party in interest and may bring an action in a court of competent jurisdiction to collect a debt that has been assigned to such assignee and is in default.

This notification requirement acts as a Condition Precedent to taking any action to collect the debt assigned.

Quote from: Central Ohio Credit Corp v Kevin Lamar Jones - 17 Fla. L. Weekly Supp. 190
...The Court finds Section 559.715, Florida Statutes, is a condition precedent and applies to those entities receiving assignments of consumer debts and, having failed to comply by providing notice to Defendant within 30 days after assignment, Plaintiff is precluded as a matter of law from bringing this action...

Quote from: Midland Funding LLC v Gladys Hill - 15 Fla. L. Weekly Supp. 365
...The Court finds that the written notice required by F.S. 559.715 was not given, and that the giving of such notice was a condition precedent to bringing the Action...

Quote from: UMLIC-VP, LLC vs Reggie Levine - 10 Fla. L. Weekly Supp. 336
...In the instant case, the Court finds that the Plaintiff's alleged assignment notice was tantamount to no notice at all.  The only reasonable interpretation of F.S. 559.715 is that it is a condition precedent.  Having failed to comply with F. S. 559.715, the Plaintiff is precluded from bringing this action...


I cannot find any links to the three cases listed above, I do have hard copies and can scan and send if anyone needs to see them, or you can go to your local law library like I did and photocopy them yourself out of the Florida Law Weekly Supplements (it's a very large 3-ring binder, one for each (volume/edition?)).  If anyone can find any links to the cases online please post them.
« Last Edit: June 19, 2010, 07:29:47 PM by petebull » Logged

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