LAWYERS AND BANKS SANCTIONED FOR FILING WRONGFUL FORECLOSURES

From: April Charney [mailto:April.Charney@jaxlegalaid.org]

Foreclosure Mess: Two Different Plaintiffs Claim to Own Same Mortgage
Posted By Amir Efrati On November 14, 2008 @ 1:38 pm In Global | No Comments
It’s been a while since we revisited the foreclosure crisis, which has obviously gotten worse. Foreclosure numbers are skyrocketing, while numerous states, the federal government and financial institutions are tackling the issue in various ways.
For the legal beagles at so-called foreclosure “mills,” which do assembly-line lawyering for lenders and other mortgage owners, the crisis has meant lots of work but also woes, including sanctions and stern lectures from judges (examples here, here and here). Why are judges so frustrated? The increased volume is leading to mistakes and irregularities, which we’ve chronicled before.
Now comes the foreclosure case of Joanne Fredenburg, a widowed homeowner in Lehigh Acres, Fla., where real estate prices have plummeted. Last month Ms. Fredenburg was served with not one but two foreclosure lawsuits from two different plaintiffs that both claimed to own her promissory note and mortgage and said she owed them each more than $276,000. That, of course, is impossible. (Click here and here for the two complaints.)
One lawsuit seems to make sense. The plaintiff is a unit of Deutsche Bank that acts as a guardian or “trustee” for investors of mortgage-backed securities. Those investors collectively own loans such as Fredenburg’s. But the other lawsuit was filed by a mortgage-servicing company that collects borrower payments on behalf of investors. Surely that is a mistake, as servicers don’t typically own loans.
Indeed, following an inquiry by the Law Blog, we’re told that the servicer, American Home Mortgage Servicing, will withdraw its lawsuit, which was filed by Miami-based Adorno and Yoss LLP. (We’ve put out calls to both and will let you know if we hear back.)
But Ms. Fredenburg’s lawyer is none too happy. Even after American Home withdraws its suit, J. Rex Powell of Cape Coral says he will ask for discovery to find out what payments his client made, whether they were paid to the right entity and whether she was given the proper credit. Given that most people don’t defend against foreclosure lawsuits and the plaintiffs are awarded default judgments, Powell says the case raises an interesting question: Are entities wrongly filing foreclosure suits and collecting on notes they don’t own?
Perhaps Florida Circuit Judges Jay Rosman or Michael McHugh, whose dockets include the Fredenburg foreclosure suits, will be able to shed some light.

November 30, 2007, 9:10 am
Law Blog Lexpionage: “Foreclosure Mills”
Posted by Peter Lattman
Are you hip to the Web site Word Spy? It’s a fun one for all you language lovers out there. Its founder describes its mission as “lexpionage” — sleuthing out new words and phrases. Recent entries include “stroller envy,” feelings of envy directed at high-end baby strollers owned by other parents; and “tattoo regret,” feelings of embarassment or remorse caused by having one or more tattoos.
What fun! Well we hope that Word Spy reads the WSJ because it might want to introduce its readers to “foreclosure mills,” or law firms that are handling thousands of foreclosure cases on behalf of mortgage lenders and servicers. The firms are often paid based on volume — in Ohio, for example, they get around $1,000 a case.
Some of these “foreclosure mills” are drawing criticism from judges for aggressive tactics and cutting corners. Here’s the WSJ story from the Law Blog’s very own Amir Efrati.
This month a state judge in Cincinnati dismissed a foreclosure suit brought by Wells Fargo because it filed the suit before it acquired the mortgage. The judge sent a warning letter to the bank’s law firm, John D. Clunk Co. LPA, in Hudson, Ohio. Judge Steven Martin — we hear he’s a wild and crazy judge — wrote it was “troubling” that the plaintiff “and its counsel filed the lawsuit with no basis whatsoever” and that firm must not do so again. (The law firm didn’t respond to requests for comment. Wells Fargo declined to comment.)
Judges are also fining firms for filing shoddy motions in bankruptcy court on behalf of creditors. In Houston, three judges have sanctioned or considered sanctions against Barrett Burke, a Texas size foreclosure firm. In June, Judge Wesley Steen imposed a $75,000 fine on Barrett Burke for filing computer-generated pleadings that were “grossly erroneous” and “gibberish.” The judge wrote that the firm has “become over reliant” on the software and its attorneys are “allowing their signatures to become affixed to pleadings that they have not adequately reviewed.” Said partner Michael Barrett: “We have taken many steps to eliminate the problems that we had in the past.”
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Gotta love Clunk’s website — scroll down a bit and marvel at “OUR COMMITMENT TO EXCELLANCE” [sic].
Comment by Eddie – November 30, 2007 at 9:38 am
These businesses are just enforcing their rights against deadbeats and criminals. Lets not get carried away with the technicalities of actual ownership of the debt or the burden of proof of indebtedness. We all know that when you miss payments the company can sue you for the debt. Why all the whining about technicalities. This is just another liberal trial lawyer crying point. Woe to the poor people who can’t pay their bills!!! Screw them!! They made a promise to pay and if they can’t keep it then the rights of the lender will be enforced by the state via the sherriff!!
Comment by Tort Reform – November 30, 2007 at 9:51 am
“These businesses are just enforcing their rights”
These rights are provided for by law. Therefore it seems only natural that when you ask the state, via the court, to enforce the law, you should follow said law yourself when making that request. It’s really not that hard. If a company has been wronged by the consumer not paying their debt, it doesn’t mean that company doesn’t have to follow the law anymore.

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21 Responses

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    All of the Mortgage Addresses above has giving me the run around to take my dream home.

    As an adoptive parent of four babies in Mississippi, we are facing Countrywide, Bank of America foreclosure. One of the downfalls includes Hurricane Katrina. My community is in shock after seeing the sell date in the paper. So, am I. My home was bought at $16,000. It is paid for. I consolidated and now it is approximately $90,000 owed. The consolidation was loans to try and make home improvements. I have not had a new vehicle in over eight years. Now rusty rims and other objects hold down the roof. When the Notary closer came to my home, she said sign here, here, and here for about one hundred times. The appraisal was before the bricks, dishwasher, molding, and more in completion that is still unfinished. I have been told half of the house sits on my land and half sits on someone else. They say the front door of the house is turned the wrong way. The roof is and gable is off in measurements. An agency approached me because they wanted it for the highway right of way. The title does not even state my name right. Sure, it has termites, unleveled walls, floors, windows, doors, and floors but it is a blueprint that took tireless hours and sacrifices. We had shady contractors who did rip us off. After, Katrina, forbearance was promised and modifications, I was told don’’

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    I was told to wait approval from investors is going to take some time. I have had an advocate since November 2009. Bank of America said that modification was been approved, yet, I receive a foreclosure notice. I was told that date would be postponed and then it appears in the paper anyway. These are some of the Government enforced programs, I ve found. How Mortgage promises has failed, job hunting has failed, President Obama please do not fail us. Please direct us refer us to immediate help please.
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  5. Hello: I’m looking at buying a house in Lehigh Acres for my retirement (in 2 yrs). The prices seem too good to be true. Truthfully, I’m scared to death to invest in an area that I’m not familiar with and with so many foreclosures and short sales. Any comments/recommendations will be appreciated.
    Mirta Rudolph

  6. im a single mom 2 girls 10, & 15 i had a forbearabnce agreement payments started march 08. march april may in 4 mos ive paid 9000.00 to the servicing company now originally trustee. they forclosed may 14 now im at court waiting for verdict on forcible detainer and the lawyers for the deutche bank are requesting me to be out in 5 days if granted. any suggestions. jan i moved back into this duplex ive owned 10 years and started a 1000 sq ft addition downstairs at drywall stage. ive given up/sold/exhausted my resources to put this home together. its more than just wrongful forclosure. if i have to move ive got no other choice but to send my girls to there dads to live. not only can i believe this is happening but to be left with no place to go and cant afford my children by next monday? any suggestions on possible filing to prolong me staying in my home so i can get to be heard on wrongfull forclosure to dispute possession rights

  7. report fraud and get them bustedwww.avenue-s.us/fraud_updates.html

  8. To even think that innocent homeowners deserve being foreclosed on by the greedy Banks and their mortgage servicers to include uncrupulous law firms with their shoddy court filings in an effort to cause someone to be homeless is an inhumane, unconscionable act. Having this attitude is likened to a mother who just lost her son or daughter in death fighting a war for the liberty of all Americans and we say to ourselves that how dare this grieving mother express her feelings of sorrow when after all, she knew all along that the consequences in fighting the war could possibly lead to the death of her child! Are we so far gone that we should think that this poor grieving parent knew “all along” what her son was getting into therefore what’s the big deal!! because she publicly expressed her deepest regrets and sorrow over the loss and death of a beloved family member? What makes losing your family home by these economic criminals any different?

  9. Unlawful detainers and right of possession…Lender gets possession..via sheriffs deed…what happens to right of title?

  10. What are the remedies for the following unbelieveable chain of events of a procedural nightmare that results in a botched forced sale –but the lender still gets possession…even after all of the following ….
    History: Purported lender (purported ie: no evidence of assignment, transfer, original note lost or destroyed, broken chain of title at best…The original underwriting package shredded/destroyed, to cover up a botched refinance…with statutory violations of their predecessor,…year later purported lender mis applies $60K of home owners payments…Litigation ignited resulting in 4 years of litigation –they are seeking summary judgment in lieu of foreclosure (this is in Texas and.a valuable property which is AG exempt and Homestead exempt property with acreage. under 10 acres. Lenders lawyer, violates Texas rules of civil procedure..ie: due process, lack of notice and right to be heard denied by Judge who signs order upon submission … property owner finds out 2 weeks later..(…1 year later, lender abstracts the judgment a defective SJ (lacked enforcement rights)..attempts a forced sale and is stopped, then a 2nd attempt, the homeowner seeks relief via BR and stop s the sale. Lender /lawyer moves for motion to lift stay..BR court DENIES for lack of fulfilling burden of proof of entitlement to do so (she brings up UCC) – (the lender is touting doc’s that do not have their name anywhere–
    Homeowner gets Chapter 7 discharge that discharges all of the debt associated to the purported notes. On the heels of this BR trustee files a preference action against lender….(trial set for 8 mos later) lender proceeds back to state court to correct defective SJ which has just been discharged…to include enforcement rights –the judge signs off on this but lacked jurisdiction to do so…6 mos later…lender attempts a 3rd time , to force sale…the constable becomes concerned & returns the sale order to court clerk and stamps it NULLA BONA sale not conducted…(and is not) 2 wks later constable changes story…and lender files a forcible detainer action while homeowner is out of town..,.and gets a way with this..meanwhile back in BR court , the trustee is fully aware of this and did not stop the lender…3 months later makes a deal with the lender who offers to compromise and pay trustee $25K- she accepts..BR judge okays the compromise and appears clueless as to the forced sale transaction or irregular sale…and the homeowner’s possesion of home lost….Nothing has happened with the home that remains vacant today…Clearly there are issues of irregular sale, there is a broken chain of title at best –the tax records show DEED transfer via Sheriffs sale naming lender as property owner? The homeowner filed a lis pendens 2 years ago which is still active – and after the discharge a copy of that was filed and a release of the judgment abstracted was filed …yet the sheriiffs (or constables) sale was conducted…and the current status is as noted above.
    Any thoughts out there on this most complex matter…

  11. Bring power back to the people and forget about giving these crooks ANY bail out money, put them where we put the good ole boys Enron…… IN JAIL!!!!!!!!

    Tryin in Maple Heights, Ohio to “put Deutsche/Argent in their rightful place; out business///////////

  12. June Reyno: Technically you are right. And readers would be well-advised to follow the requirements of statute in terms of objecting to sale.
    The problem, as Judge Boyco and Judge Shack have pointed out is that their is a vast inequality in terms of access to knowledge. The failure to object to the sale, like the entry of a default judgment is subject to being set aside based upon excusable neglect and the showing of a meritorious defense.
    The filing of an unlawful detainer does not stop, or in legal parlance, estop, homeowners from bringing actions (lawsuits) against the Plaintiff/Petitioner in the UD. It also does not prevent the homeowner from claiming the Plaintiff/Petitioner procured the title by fraud. I believe in California this must be done in two different court jurisdictions and this is where the “pretender lender” bluffs their way through the process. Whether the homeowner lawsuit is filed in general jurisdiction or in Federal Court, the lower court should issue a stay of the UD because the transfer of title is not a judicial event. Hence res judicata does not apply. The filing of the UD is the first time that the parties are in court and the homeowner’s core defense is that the Petitioner is not the proper party to have title, much less file a UD.
    The absence of the issuance of a stay order by the lower court, the court of general jurisdiction or the Federal or Bankruptcy Court is therefore in a non-judicial forum a violation of due process requirements in the 5th and14th amendment of the U.S. Constitution. Failure to issue the stay denies the homeowner access to the courts to seek redress for what is essentially civil or criminal theft. In fact, it is my belief that in these situations, the homeowner should file a police report alleging theft of the title to their real property in a scheme of economic fraud.

  13. Homeowners in the State of California should know that the Unlawful Detainer is a lawsuit filed for POSSESSION and that the Court does not or better put cannot rule on the matter of TITLE. This, time is of the essence in raising defense when the homeowner receives the Summons & Complaint from the agent albeit the law firm representing the mortgage servicer or lender. YOU will have only 5 days to raise defense in the UD Court IN WRITING. The cost in failing to respond within 5 days? A motion by the suing party for a Summary Judgement under a Notice of Entry by Default by the bank/servicer/law firm (collection agency) to EXECUTE “Writ of Possession” in cooperation with the Sheriff’s Office to force EVICTION usually within 15 days on the clock.
    Fight to keep your home and be adequately prepared and learn all that you can to defend the validity of the foreclosure/trustee sale action from this website’s tools so you can win to stay in possession of your home. Any amount you wish to contribute to this website blog does not even compare to what you will gain if YOU can remain steadfast in your resolve and belief that it is a violation of your civil rights in this country for someone to strip you of title and ownership interest from the largest single most important lifetime investment- your family home.
    If we have managed thus far to still stay inside our home after opposing 2 Sheriff eviction lock- out experiences (with lots if battle scars to show) I know YOU can too! The date is February 28, 2009. The date we re-financed our mortgage loan March 2006. It is with gratitude thanks to Neil and his courageous friends who have freely shared without cost to help us and others on this blog that we have been able to still stay and keep our home of 20 years. 858-361-2399.

  14. Doris there are forms on the blog. Use them, learn them and by all means check with local counsel. If the lawyer is not up to date on the status of these foreclosures, find another one.

  15. Anyone can help with foreclosure in Virginia,need motions to file to stop them..

  16. I have been filing TRO complaints for two months and have not lost yet on Standing issues. My first MERS motion is on for Friday, December 26, 2008. In RI, the Statute is clear and I am going to make law very soon. I envision a class action that will change the face of this State’s economy. In the meantime, I beat on the lenders and mortgagees one at a time.

  17. We have developed a strong Motion to Dismiss for Lack of Standing in Florida “lost note” cases where the plaintiff does not have the original note and nothing in the chain of title showing they have the right to enforce the note. If you are defending such a foreclosure in Florida, call and we will be glad to help. 706-416-9996.

  18. below is a copy of a court case for St. Mary’s County. The Owner Mrs. Omar locks were changed and all of her belonging were taken out of the home while she was at work. we are helping her to fight the foreclosure and asked, if your company can review the docket below. we filed a motion/TRO and request for interrogatories and request for hearing. can you recommend anything else we need to do.

    Court System: Circuit Court for St. Mary’s County – Civil System
    Case Number: 18C08001303
    Title: Cohn, et al vs Omar
    Case Type: ForeclosureFiling Date:10/23/2008
    Case Status: Open/Active
    Case Disposition: Disposition Date:
    Plaintiff/Petitioner Information
    (Each Plaintiff/Petitioner is displayed below)
    Party Type: PlaintiffParty No.:2
    Name: Goldberg, Stephen N
    Attorney(s) for the Plaintiff/Petitioner
    Name: Cohn, Esq, Edward S
    Practice Name: Cohn, Goldberg & Deutsch, LLC
    Address: 600 Baltimore Avenue
    Suite 208
    City: TowsonState:MDZip Code:21204
    Party Type: PlaintiffParty No.:1
    Name: Cohn, Edward S
    Attorney(s) for the Plaintiff/Petitioner
    Name: Cohn, Esq, Edward S
    Practice Name: Cohn, Goldberg & Deutsch, LLC
    Address: 600 Baltimore Avenue
    Suite 208
    City: TowsonState:MDZip Code:21204
    Party Type: PlaintiffParty No.:3
    Name: Solomon, Richard E
    Attorney(s) for the Plaintiff/Petitioner
    Name: Cohn, Esq, Edward S
    Practice Name: Cohn, Goldberg & Deutsch, LLC
    Address: 600 Baltimore Avenue
    Suite 208
    City: TowsonState:MDZip Code:21204
    Party Type: PlaintiffParty No.:4
    Name: Rogers, Richard J
    Attorney(s) for the Plaintiff/Petitioner
    Name: Cohn, Esq, Edward S
    Practice Name: Cohn, Goldberg & Deutsch, LLC
    Address: 600 Baltimore Avenue
    Suite 208
    City: TowsonState:MDZip Code:21204
    Party Type: PlaintiffParty No.:5
    Name: Whitson, Michael
    Attorney(s) for the Plaintiff/Petitioner
    Name: Cohn, Esq, Edward S
    Practice Name: Cohn, Goldberg & Deutsch, LLC
    Address: 600 Baltimore Avenue
    Suite 208
    City: TowsonState:MDZip Code:21204
    Defendant/Respondent Information
    (Each Defendant/Respondent is displayed below)
    Party Type: DefendantParty No.:1
    Name: Omar, Khadijah
    Address: 35690 Aviation Yacht Club Road
    City: MechanicsvilleState:MDZip Code:20659
    Document Tracking
    (Each Document listed. Documents are listed in Document No./Sequence No. order)
    Doc No./Seq No.: 1/0
    File Date: 10/23/2008Close Date:10/23/2008Decision:
    Document Name: Payments Received:
    FILING/MLSC/APPEARANCE FEE: $115.00 Check; Receipt #52031
    Doc No./Seq No.: 2/0
    File Date: 10/23/2008Close Date:Decision:
    Party Type: PlaintiffParty No.:1
    Document Name: Order to Docket Suit
    Filed by Attorney: Edward S Cohn Esq
    Doc No./Seq No.: 3/0
    File Date: 10/23/2008Close Date:10/23/2008Decision:
    Document Name: Affidavit of Default and Notice of Intent to Foreclose
    with supporting documents attached
    Doc No./Seq No.: 4/0
    File Date: 10/23/2008Close Date:10/23/2008Decision:
    Document Name: Affidavit Certifying Ownership of Debt Instrument

    Doc No./Seq No.: 5/0
    File Date: 10/23/2008Close Date:Decision:
    Document Name: copy/Attorney certified Deed of Trust Note
    (each of the 3 pages are cut off at the bottom)
    Doc No./Seq No.: 6/0
    File Date: 10/23/2008Close Date:Decision:
    Document Name: Substitute Trustees’ Certificate of Note
    with copy of Note attached (each of the 3 pages are cut off at the bottom)
    Doc No./Seq No.: 7/0
    File Date: 10/23/2008Close Date:10/23/2008Decision:
    Document Name: copy/unrecorded Deed of Appointment of Substitute Trustees

    Doc No./Seq No.: 8/0
    File Date: 10/23/2008Close Date:10/23/2008Decision:
    Document Name: Statement of Mortgage Debt-$307,510.97 as of 08/18/08

    Doc No./Seq No.: 9/0
    File Date: 10/23/2008Close Date:10/23/2008Decision:
    Document Name: Non-Military Affidavit

    Doc No./Seq No.: 10/0
    File Date: 10/27/2008Close Date:10/27/2008Decision:
    Document Name: Certified Copy of Deed of Trust

    Doc No./Seq No.: 11/0
    File Date: 10/27/2008Close Date:10/27/2008Decision:
    Document Name: Deed of Appointment of Substitute Trustees

    The complete case file can be obtained fr

  19. LOAN servicers arte not supposed to be foreclosing on any note in Florida.

  20. If anybody here is getting sued by Adorno and Yoss, vigorously defend yourself. Their is an attorney named ISABELL V. COLLERAN at Adorno and Yoss, which claims to be the ASSISTANT SECRETARY at MERS INC., in which is TOTAL FRAUD. The whole law firm is fraud. They have these assignments of mortgages that are fraud. Anybody interested go to the Florida Bar and search ISABELL V. COLLERAN and you’ll see that she is an attorney. Please, if you get them file a RICO suit on them. That’s the only way they’ll respond to you. I have never seen so many pieces of living (you know what) as them at Adorno and Yoss, including the idiots that notarizes their bogus documents.

  21. let me tell you, there are federal lending laws that are in place for a reason and when they are violated a debtor can and should fight back! If the big boys don’t want to play by the rules they can go play somewhere else! Greedy, corrupt bankers fuled this fire. Time to answer for dirty dealings and im glad to see it. Thanks to all the judges who are inforcing the laws. Thank You.

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