Tag Archives: Federal Housing Finance Agency

THE FHFA IS A CONSERVATOR … NOT A RECEIVER, COURT RULES!

(BREAKING NEWS, OP-ED) —

For those of you who might have missed this Memorandum and Order out of Rhode Island (whose courts typically favor the banks and their servicers), you may wish to read this 19-page ruling:

Sisti v FHFA et al, US D. R.I. No 17-005 (Aug 2, 2018)

The FHFA attempted to get a judgment on the pleadings, which the court denied!   While this isn’t much of a setback, it does make clear a few potential misconceptions about Fannie Mae, Freddie Mac, the FHFA, the FDIC and the mortgage loan servicers who deal with these entities:

THE BUCK STOPS WHERE?

(1) Following the subprime mortgage crisis, Congress passed the Housing and Economic Recovery Act, which created the FHFA (Federal Housing Finance Agency), giving it the power to supervise and regulate Fannie Mae and Freddie Mac (the government-sponsored entities, or GSEs). The FHFA pretty much has complete control over the activities of both GSEs, including their reorganization or rehabilitation.  In the fall of 2008, the director of the FHFA placed both GSEs into a CONSERVATORSHIP, NOT A RECEIVERSHIP!  The Director of the FHFA had a choice … he chose Conservatorship!

(2) There is no date set for when this conservatorship will end.  In the meantime, both GSEs are prohibited from paying any dividends to their common shareholders.

(3) The U.S. Government owns ALL of the senior preferred stock of BOTH GSEs. As a result, the U.S. Government gets perks that common stockholders don’t get.

(4) Both GSEs have received over $187-billion from the U.S. Treasury to maintain liquidity and have paid more than $249-billion in dividends back into the Treasury; however, the U.S. Government’s interest in the GSEs has not been diminished as a result.

HOMEOWNERS GOT SCREWED … AND SUED!

(1) Judith Sisti was foreclosed on by Nationstar Mortgage LLC, acting as an agent for Freddie Mac, where Freddie Mac was the high bidder and Nationstar signed and recorded a foreclosure deed, all non-judicially, and then attempted to evict Ms. Sisti.

(2) Cynthia Boss was foreclosed on by Santander Bank, acting as an agent for Fannie Mae, where Fannie Mae was the high bidder and Santander signed and recorded a foreclosure deed, all non-judicially, and then attempted to evict Ms. Boss.

(3) Neither homeowner had the opportunity to have an evidentiary hearing, to confront or cross examine witnesses, to present arguments and evidence, to be represented by counsel, or to have a neutral hearing officer adjudicate the matter, all allegedly in violation of their 5th Amendment, Constitutionally-protected rights to due process of law.  They filed suit against the Defendants and the cases, bearing many similarities, were consolidated into one case by the Court.  The FHFA, Fannie Mae and Freddie Mac all filed motions for judgment on the pleadings, claiming they were within their rights to screw both homeowners. DENIED!

THE COURT HELD THAT THE FHFA AND THE GSE ARE GOVERNMENT “ACTORS”, CONTRARY TO OTHER PREVIOUS RULINGS! 

(1) Despite all of the other case citations claimed by the Defendants in this case, THIS JUDGE held that none of the other citations were binding on this Circuit!  (We didn’t see that one coming!)

(2) The Court held under Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995), that the Government created a corporation by special law; for the furtherance of governmental objectives; and retained for itself permanent authority to appoint a majority of the directors of that corporation, then the corporation is “part of the Government” for constitutional claims.  The rest of the citation contained further historical analysis.

(3) The government gave complete control of the GSEs to the FHFA, rendering said control effectively permanent, despite FHFA’s claims to the contrary (that this was only supposed to be temporary).  Well, we don’t see any “temporary”, do we?  It’s amazing how the FHFA (and its lawyers) can argue whatever suits them, whether it’s legitimate or not, huh?

(4) The Court stated that it “cannot defer to a congressional delegation that serves to disclaim the constitutional obligations of a government-created entity.”  So now there is a conflict over whether there is permanent control or temporary control.  The Court then continued to stick to its guns on the facts at hand … that the “unchecked control the government has over the duration of tis total takeover of the GSEs” is up to the discretion of the government, “in perpetuity, even though Congress authorized a facially temporary conservatorship.”

THE BEAUTY OF BEYOND END GAME STRATEGIES … 

Once you understand the elements of what the Court indicated on Page 14 of its ruling, you can see the differences between the FHFA as conservator and the FDIC as a receiver:

(1) The FHFA has complete power over the GSEs.

(2) The FDIC steps into the shoes of the failed financial institution, “as a private entity for state law tort claims”.   “Beyond End Game Strategies”, the new piece we recently put out, nailed that plan of attack.

(3) This would appear to indicate that going after the FHFA and the GSEs (in their present condition) would be more difficult than going after the FDIC (as the receiver for your failed banking entity that filed Chapter 11 bankruptcy).  Maybe not entirely (according to this court)!

(4) The most damning statement in the ruling is on Page 16: “Because only federal entities can waive sovereign immunity, it logically follows that FHFA-as-conservator is a government actor.”  For further research, see Brian Taylor Goldman, The Indefinite Conservatorship of Fannie Mae and Freddie Mac is State-Action, 17 J. Bus. & Sec. L. 11, 23 (2016).  Okay, whatever … I pulled it down for you … read it here:

The Indefinite Conservatorship of Fannie Mae and Freddie Mac is State-Action

(5) Conservators, unlike receivers, have a fiduciary duty running to the corporation itself (Goldman, p. 26).

And this ruling was from a federal judge that is typically NOT homeowner friendly! 

This case tells me that as a “beyond end game” plan of attack, once you learn the key differences between what a conservatorship is and what a receivership is, you’re at “Square One”!

I would recommend to all who attended BOTH Atlanta and Orlando workshops recently add the foregoing white paper to your arsenal of research involving a “plan of attack” under state tort claims laws, as described in the foregoing illustrated INSERT. Those of you who didn’t attend … darn.  You really missed out, given the holding in this case!  This is why what we’re teaching is so vital to your survival … and now I have case law to back it up!

 

4 Comments

Filed under BREAKING NEWS, INVESTOR END-GAME STRATEGIES, OP-ED, workshop

FIFTH U.S. CIRCUIT RULES FHFA UNCONSTITUTIONAL!

BREAKING NEWS — OP-ED — This just received out of New Orleans … 

Collins et al v Mnuchin et al, 5th App Cir No 17-20364 (Jul 16, 2018)

The 5th Circuit Court of Appeals denied damage awards to three investors who claim they lost money as shareholders in Fannie Mae and Freddie Mac due to the toxicity of the 2008 mortgage markets and challenged the constitutionality of the Federal Housing Finance Agency.  The Fifth Circuit failed to award damages (as expected) to the investors but ruled that the FHFA, by its very structure was unconstitutional due to the way it was structured to act as a conservator for the two GSE’s and thus violating the Separation of Powers Clause.  You can bet that the FHFA will appeal this ruling to save its own ass.

As you recall, the CFPB met similar fate in a ruling issued by a federal judge in New York.  The ruling is here:

CFPB et al v RD Legal Funding et al, U.S. S.D. NY No 17-Civ-890 (Jun 21, 2018) 00890-Order

Why doesn’t any of this surprise me?  This is why we need public banking.  The U.S. Government has set up legislation to protect the banks under 12 U.S.C. but it shows a poor example of financial leadership when its own GSE’s operate without transparency, hiding behind a wall of assignments and secrecy in the land records.  Most people recognize that when you put money into an investment vehicle, you risk losing it, which is exactly what happened to the three investors who sued Fannie and Freddie through the FHFA.

Tough toodles on the investors, huh?  Why do people keep trusting that the U.S. Government is managed by sound financial policy when its own Congress is self-serving and bipolar in its very nature.  This is why we need public banking and to hell with the federal reserve.  We have one public bank (The Bank of North Dakota) that IS properly managed and is financially sound (which represents the interests of business and consumers in that State).   However, that being said, fiat currency is fiat currency and as long as we have Congress writing checks its body can’t cash, further driving us as a nation into debt, taxing its citizens into oblivion, using “Federal Reserve Notes” (promises to pay) as legal tender, this country is in trouble, because there’s nothing backing that debt.  We went off the Gold Standard in 1975 (thanks to Nixon).

Most people also do NOT recognize that Fannie Mae and Freddie Mac are administrators for their own REMIC trusts, despite the fact that when properties are converted by assignment and “alleged transfer” to a given GSE that it is likely that the actual REMIC it manages it never mentioned.  Thus, it raises suspicions that the quasi-government entities created to back the mortgage and housing markets are swindlers on paper!

MORE BREAKING NEWS — 

Tonight at 6:00 p.m. EDT, hear Dave Krieger and co-host R.J. Malloy on WKDW-FM Radio (listen live at kdwradio.com; click the LISTEN LIVE button and wait for the show to start) to discuss news of the day as well as what attendees are going to learn at this weekend’s Foreclosure Defense Workshop in Orlando, Florida.  What we’re teaching may shock you, but we’re talking “risk aversion” and this means something to state and local governments whose judges are ruling for banks using phony documents and making false misrepresentations through their legal counsel to steal property across America!  This is NOT for the pro se litigant, so don’t even try.  We have a “game plan” set into motion involving attorneys and specialized witnesses to do the “takedown” in open court!  This show is a MUST LISTEN!

7 Comments

Filed under BREAKING NEWS, OP-ED, Securitization Issues, workshop