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Spineless Circuit JUDGES hiding behind previous LAMBERTH RULING
This shows a SERIOUS lack of understanding of the law. Either that or just pure blindness.
The Lamberth "decision" is not just a ruling. It's the law.
Judges must uphold the law.
Until Lamberth is overruled by a higher court, it will be upheld in EVERY court.
Sleet made the only ruling possible for him to make.
The case was lost before it began.
That sucks.
.....
What???
lol
It is nothing like that.
You are acting like the two statements were years apart.
To say that a comment made in September 1st is irrelevant because there was a statement made September 2nd is illogical.
The two comments are a month apart and the second one is the only relevant one because it is second? That us illogical. Both statements are relevant.
Depends on what you mean by “made whole”. I, for one, would like to be made whole for the investment I made after conservatorship but before the NWS. For me, being made whole would be ending the NWS, returning excess NWS payments, and continuing in conservatorship.
Thats an assumption of which you can’t prove.
Considering that the Delaware loss was EXTREMELY predictable, it would be incorrect to blame it on anything else than what it was...a loss predetermined by the existence of HERA.
Well...considering that I've never believed that to be true, I might be the wrong person to ask. I have always believed that the Trump administration was more enemy to GSE shareholders than friend. But I know that the Trump savior theory is perpetuated on this board enough that many have just adopted it as truth.
Personally, I don't care what the stock price is at. I don't plan to sell it unless it reaches either 0 dollars per share or 20 dollars per share...even if that takes 50 years. I am operating under the assumption that the stock will eventually exit conservatorship...and either the shareholders will be expunged or they will be retained. That is when I'll know the final fate of my stock.
I would probably guess that 95% of Americans get their news source from at least one of the places you listed.
Lol. There was no way that the Delaware case was going to be a victory. The case was specifically suing for what HERA and Perry said they couldn’t sue for and then attempted to attach state arguments in federal court!
It was a loss before it began.
Has nothing to do with judicial reputation.
I disagree...he did the best he could with a case that had practically no chance of winning.
Now I have to ask...has Steele's reputation been ruined in your opinion? He hasn't in mine.
Lol....investing in this stock just is a constant state of manic, I suppose.
Good post.
Based on what?
“Thank you very much for your well thought out response.”
My pleasure! Was one of the more fun responses Ive put together. Haven’t been many legal issues to discuss here lately:(
“Seems quite a big constitutional loophole with standing.”
I wouldn’t go as far as to call it a “loophole”. What I would say is that separation of powers exists so that no branch can attain enough power to mute the strength of the other two branches. If, however, one branch ALLOWS their powers to be usurped, then it could be argued that separation of powers is satisfied. It is then up to the American people to replace those representatives allowing their powers to be usurped...if they disagree with the representatives actions.
When it comes to FINRA, I doubt it will cause an American uproar any time soon.
“But we pledge allegiance to the “Republic” not to the “Democracy”.”
Please elaborate the difference as you see it.
The way I interpret the difference, In a true democracy, all decisions would be decided thru vote. That isn’t how the United States operates.
“Some people believe the rise of the regulatory state was put in place to protect the special interests and corporations from the people not the other way around. They may be correct in some circumstances. Finance is probably one of them.”
I’m not sure I agree with this...though it would make for an interesting debate :)
In court filings FHFA conservator claims that it signed SPSPA agreements as private entity. In many other court cases FHFA conservator claims that it acted as private entity.
I believe you are mistaken. FHFA has never claimed to be a non-government private entity. They are an independent agency. Independent and Private are not the same thing.
If you need specific law references, then please read recent Plaitiff's cases.
I just don't understand how you can make such bold comments as in your original post about violations of the Constitution without being able to even point to the provision in the Constitution that has been violated. I am disappointed.
You forgot a couple zeroes.
$500 by Friday!
Hey Barron,
Is it correct to assume that congress delegated the SECs duties to private SROs in the 1938 act?
Very interesting question.
First, just so we can clarify for everyone on the board who might not know the basic history...Congress did not create FINRA. It created NASD thru the 1938 Maloney Act, which reported to the SEC (created in the 1934 SEA). FINRA was created thru a later merger that SEC authorized. NASD was an SRO as much as FINRA is now, though. Congress did, indeed, authorize the SRO to oversee much of the financial industry under the supervision of SEC.
I think we can understand the logic behind this move. First, it was much cheaper to do it this way. Second, by creating a non-government agency to oversee the stock market, corporations were more likely to participate in the stock market that was mostly independent of the government, which would spur economic growth.
So, the question is...Can they do this?
Can they do this?
So...the short answer is "kind of".
We must accept the following statements as true in order to proceed:
1. The government contracts with private entities all the time (though rarely thru legislation).
2. The functions of FINRA are PRIMARILY within the executive powers of the executive branch.
3. FINRA reports to SEC in almost every aspect, to the point that SEC can even issue sanctions on FINRA. The one major aspect that SEC does not partake in is FINRA's leadership appointment or dismissal.
So, accepting these things as true, I would say the following:
Congress did not delegate SEC duties to FINRA thru the Maloney Act. It delegated Executive duties thru the Maloney Act. The Executive branch would have been able to wholeheartedly contracted with a non-government agency to pick up some of the duties of the SEC without breaching any part of the Constitution, and is something they do all the time.
So did Congress violate the Constitution by delegating Executive Branch duties? Yes and no.
Yes, because Congress can not delegate Executive Branch duties...they are Executive Branch duties.
No, because unless the Executive Branch complains about its duties being delegated, noone would have standing to sue Congress and reverse the delegation.
It is worth noting that Article 2 Section 2 Clause 2 of the Constitution allows Congress to appoint inferior officers to government positions. However, this provision of the Constitution does not seem to apply to non-government positions. In fact, there is not anything in the Constitution that addresses dealings with non-government agencies. So does the lack of wording in the Constitution permit such actions? I would say yes, if it is appropriate. This is why we have 27 Amendments...clarification points to the Constitution made after the fact. However, that being said, this probably wasn't appropriate as we are talking about clearly Executive Branch functions.
So, my answer to your question would most likely be...no, Congress cannot delegate executive duties to NASD (now FINRA) thru the 1938 Maloney Act unless FINRA would be accepted under Article 2 Section 2 Clause 2 of the constitution as an "inferior officer" (unlikely in my opinion). But unless the executive branch complains, it can be implied that they are ok with it...and only they have standing to reverse it (The SEC could have standing as well...maybe).
Ok bcde...Im responding to your post below with the caveat that it is understood that none of your post actually responded to my question. Please, in your next response, try to be more clear and answer my question...what power do you believe has been unconstitutionally delegated, and what section of the Constitution is that power found in?
“Thanks, It is explained in one the plaintiff's complaint.”
Just because something is in a plaintiff’s complaint does not make it the law.
“Under Constitution, only Congress makes laws, only POTUS (Executive Branch) has executive powers, only Judiciary interprets laws.”
True enough.
“Private entities can not play any of these roles.”
Exactly how do you believe the FHFA is making law, implementing law or interpreting law?
“As claimed by FHFA, and ruled by courts, FHFA conservator is private entity.”
The FHFA conservator is an independent government agency. Please refer me to documentation where FHFA claims not to be part of the government.
“So it has only powers of BOD/CEO/Shareholders, and does not have any additional Gov powers.”
This is a false statement. Conservators have powers beyond that of BOD/CEO/Shareholders in most cases, let alone with HERA behind them.
“When FHFA conservator provides protection to other Gov agencies to violate US laws, it is exercising Gov authorities.”
I have no idea what this is supposed to mean.
“Besides courts have ruled that FHFA conservators has broad unaccountable authorities.”
Courts have not ruled this.
“You need to read plaintiff's filings on this.”
I am asking you what Constitutional law has been violated, not the plaintiffs. People invoke the Constitution so willy-nilly...if you believe the Constitution has been violated by a delegation of duties, I ask you to support that claim by answering my question this time. Again, what duties have been delegated, and what provision of the Constitution is it found in?
Though I agree with you that this is how it works in practice, this isn't how the market would react to it. A "forgiving" of the SPS would drive up the price even though equity has not changed. The market would react to it as though the net worth has increased.
If Congress bestows such broad powers on private entities, then it fundamentally violates Constitution against delegating executive authorities to private entities. Only executive branch agencies can have such Gov authorities limited by principles of checks and balances.
First, I must ask you...which Constitutional power are you referring to that you believe has been delegated unconstitutionally? Please note that you specifically invoked the Constitution, so I expect to see a Constitutional provision that has been violated.
And before you answer, I would like to refer you to Article 1 Section 2 of the Constitution: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. I point to this clause only because I believe that you believe that all appointments must be made by the executive branch, which is untrue.
Also, before you answer, I will preempt your claim that the nondelegation doctrine has been violated. The nondelegation doctrine specifically prevents Congress from delegating LEGISLATIVE duties. It does not mention Congress delegating EXECUTIVE duties. The logic behind this is clear...if the executive branch has a problem with a duty being delegated, it can complain or sue, or ignore the order all together and wait to be sued by Congress. But noone can sue Congress for delegating its own duties unless the Constitution prevents it...which it does.
So I repeat my question to you...which Constitutional provision do you believe was violated?
This goes against many constitutional principles like required minimum congressional delegational guidelines and congress can not delegate its legislative responsibilities.
Exactly what legislative responsibility has been delegated. Congress passed HERA which was legislation that outlined the Conservatorship. If you believe that Congress's legislative responsibilities require them to oversee day-to-day operations, then you are wrong.
“Even pre-NWS but post-2008 holders?”
You tell me.
The damage for a takings is the fair market value at the time of the taking. Depending on which taking we are referring to, that could be the pps at conservatorship or the pps at NWS. Is that the price you were hoping to get? It isnt for me.
“The Sixth Circuit ruling implies that a takings case would have legs. Does it also imply that no non-takings case can clear the 4617(f) bar?”
No...there are other exceptions.
In the current legal system, the laws can be interpreted in billion ways. Otherwise how can the opinion of Judge Brown's opinions stand exactly opposite of majority opinion.
I don't know about a billion, but definitely multiple. Many Supreme Court cases end in a 4-5 vote.
How can FHFA conservator as a private entity claim very broad unchecked powers, when even the Gov agencies can not have such powers? How can one of the most powerful US agency depends private FHFA Conservator to violate US laws?
Because HERA allowed it. HERA is as much the law as any other laws.
Anyway, let's go for Illegal Taking.
I doubt you'll want this. Even if an illegal taking action were successful, courts would likely just declare money damages...and that is not something any of us post-crash holders want.
“What you are saying is, when shares are traded, somehow standing vanishes.”
No, that is not what Im saying. You seem to believe that standing is a term of the contract. It is not. Standing must be proven in every case against the government. Standing is never assumed. Standing is never presumed. Standing is not a right. Much like the prosecution is required to prove malice in a first degree homicide case, plaintiffs suing the government must prove standing. Shares being traded are irrelevant. Prior to the shares trading, the original owner would need to prove they have standing. After the shares are traded, the new owner needs to prove they have standing. Nothing vanishes.
“The selling party loses standing, because it is no longer party to agreement”
You can’t “lose” standing. You either have it or you do not. The selling party could have standing...or they might not have standing. It depends on whether their lawsuit meets the 3 elements of standing.
“and then as per your opinion the buying party also loses standing for some magical reasons.”
Again. You can’t “lose” standing. The buying party could have standing...or they might not have standing. It depends on whether their lawsuit meets the 3 elements.
“If one applies your opinion, then only original shareholders have standing and no one else, in case company management violates contractual agreements. This is not the case in real world.”
No, this is not how it works, nor is it how I claimed it works. I, for example, would likely have standing to sue based on the NWS since I was clearly damaged by it when I bought shares under the assumption that the conservatorship would not lead to a total divestment of company profits.
“When FHFA signed as a conservator for FnF, it was an act of a private shareholder company (FnF) and not an act of a Gov agency. This is what FHFA claims. But this is only part of the story.”
I don’t know what this statement means.
“Does standing still matters, if FnF (conservator) are sued instead of FHFA?”
No, standing doesn’t apply if FnF are sued rather than FHFA. Though you’d need a cause of action...and I don’t believe one exists at the moment.
“Standing to sue depends on terms of contractual agreements. If one party violates the terms of agreements, then what are the options other party has?
Let us keep aside FnF problem and understand standing purely on the basis of contractual agreement .
How does standing works in case of violations of contractual terms between two parties? or
How does one enforce contractual rights or seek remedies when the other party violates contractual terms or or when there are contractual disputes?”
Bcde, as I’ve said multiple times now, standing has nothing to do with contracts. Standing is a constitutional element that a plaintiff has the burden of proving when suing the government.
“Your concept of standing is off base.”
No, its the correct legal representation of standing. Whether “correct” is “off base”...that I couldn’t tell you.
“Ability to sue does transfer with the sale.”
The only time that a sale of goods or services will affect the ability to sue is if there is an arbitration clause. The arbitration clause will transfer with the sale.
“For example in lending arrangements, if a note is defaulted and the creditor sells the a defaulted note at less than note amount, the purchaser is not precluded from suing for the full amount”
Your example is faulty. Standing is a constitutional issue and only comes into play when you are suing the government. Providing an example where you are suing creditors does not apply to the discussion.
“The net worth sweep can be waived / changed by the fhfa at any time and like the making of this bogus third amendments BS could be altered at any time.”
This is a false statement.
“What you have here is that the net worth swipe is only done, if "declared" by the entity. If its not declared its not owed.”
This is also a false statement.
“Since the net worth concept is cummulative, if not declared and paid in one quarter it could be the next. Alternatively, it could be suspended or replaced.”
This COULD be a true statement...depending on the context.
“Shareholders should absolutely, have the ability to sue to adhere to the contractual promises embodied in the commons share rights.”
Shareholders who bought before the NWS?...yes. Shareholders who bought after will likely not have standing to sue.
“What the governement continues to do is a total farce.”
I agree.
Report TOS
Yes I’m sure.
And I don’t work in a law firm.
My thinking is transferred original contractual rights should give shareholders rights to sue for injunctions and damages against the other party.
I know that that is our thinking...but it isn't correct. Contractual rights transfer when shares are sold. Standing to sue is not a contractual right.
That is why, CADC revised its Perry ruling.
The Perry ruling only addressed contractual rights, not standing.
I don't agree that buying debt and buying a share of stock are similar.
However, even if they were, standing doesn't apply to suing a private party. We are talking about suing the government.
Unless you bought the government's debt, these two situations are unique to each other.
The problem is that he is confusing two issues.
Shareholder rights and Constitutional Rights.
One can have EVERY right of a share based on a contract that was formed 50 years ago and still not have the constitutional standing required to sue.
He is overlapping the two issues as if they are the same...and that is incorrect.
Standing is not a shareholder right and does not transfer with anything.
Standing must be proven every single case.
What is so special about NWS (unlawful agreement between private shareholder companies FnF and Tsy) agreed by FHFA conservator in violation of many provisions of HERA and also many other laws.
This seems like a loaded question since no one has ruled to date that there have been any violations of HERA from the NWS or that the NWS is unlawful.
Though I'm not sure how this relates to my comment: Anyone who bought after the NWS would almost certainly have their case dismissed for lack of standing.
Does not NWS create standing every quarter when corporate theft happens violating common laws, HERA, US/State laws and constitutional rights?
This question is kind of broad, but I'll do my best.
Standing is determined based on 3 major elements.
First, a plaintiff must have suffered an injury. Courts will look at what the plaintiff "has to lose" (This is sometimes even called the "something to lose doctrine"). In order to determine if the plaintiff had "something to lose", they will look at many factors. Among those factors will be to see if the plaintiff had an expectation not to have the harm brought against them and if the plaintiff mitigated their damages to the best of their ability. There is no court in the world that is going to just ignore the fact that plaintiffs INJURED THEMSELVES by buying a stock with a lot of risk and then is suing to restore the stock to a status that existed before they bought it. That is seriously like walking onto a busy freeway, being hit by a car, and saying that they should be compensated for being hit by the car because they were damaged and didn't expect to be hit. Knowledge matters.
Second, there must be a causal nexus between the plaintiff's injury and the defendants actions.
Basically,...did the defendant take an action that injured the plaintiff in their existing status. You seem to want to reverse this. The defendants took the action, and THEN the plaintiff's were injured because they bought the previously burdened stock. This goes against everything logical in the world. The courts will not ignore that the PLAINTIFF was perhaps more to blame than the defendants for their own injury.
Third, it must be likely that the injury will be redressed by the courts.
Basically...will the court believe that they can help the plaintiff in some way. If the plaintiff has no damages (which someone who bought after the NWS does not), then the court is going to twiddle their thumbs and do nothing.
If barrier of 4617(f) is removed then does standing matter any longer?
Yes...the constitution requires standing elements to be met in every case against the government. Standing isn't a concept that was invented due to HERA.
Does your "lack of standing" applies only to FnF shares or also to MBS/CAS/STACR? There are many such trades involving MBS/CAS/STACR before and after NWS. So can Conservator treat MBS/CAS/STACR holders same way he has been treating shareholders. What is it that make trades involving MBS/CAS/STACR different from share trades.
I'm not sure what you are trying to say here...but standing is a universal requirement for anyone filing a lawsuit against the government, regardless what they are suing for.
I read that USCFC can issue injunctions other than just money judgments. Is it applicable to FnF cases?
Of course...if not for HERA restrictions.
“Do my expectations have to be right - or just reasonable?
When I bought my f&f juniors I really did expect that as soon as the companies appeared to be financially stable and profitable for a few quarters "they" would resume paying dividends. I mean - why wouldn't they? I kind of figured the commons would be tied up for a few years waiting for congress to "fix" them, so bought the juniors to make some quicker profits.
My expectations turned out to be reasonable - but wrong. Does that vacate my claim?”
Your expectations need to be objectively reasonable. What you personally consider reasonable is irrelevant. The courts will determine if it is objectively reasonable to expect future dividends on a stock that has had dividends suspended in the past. They will decide if an average person would expect this.
If you want to know how the law tends to veer toward expecting future benefit but ignoring present or past knowledge, I present to you a common defense in real estate claims calling “coming to the nuisance”:
https://www.google.com/amp/s/dictionary.thelaw.com/coming-to-the-nuisance/amp/
The theory suggests that if you move next door to a music studio, and knew it was there, you can’t then sue the music studio for disturbing the peace since you knew it was there.
Knowledge DOES matter.
I disagree.
While taking is a likely way to win, the damages would be nearly nothing since the damages would be the difference between the market value at the time of the taking and the current value at the time of the ruling.
For most people, that amount would be 0 dollars.
The best cause of actions, in my opinion, are breach of contract and modification to a contract without additional consideration.
“In my opinion the damages happen each quarter that I own junior preferred and the seniors get a dividend while I do not. So it seems to me that anyone who has held a junior preferred through a dividend period has standing to show damage.
Or - would they argue that I saw that dividends were not being paid at the time I bought - the 3rd amendment was in place legal or not - and thus I should have expected to not get any dividends until the NWS ended?”
You pretty much got it on the head right there. Part of standing is being able to prove damages. Expectation of damages plays a big part here...
“To me an analogous situation would be: I see guys with guns coming down the sidewalk stealing wallets from everyone in the line I'm waiting in to buy the new iPhone 47. I see the risk but do not want to lose my place in line. Do I lose standing to say I was robbed when I didn't flee the area before they got to me? (I was hoping that cop standing between me and the robbers would stop them)”
This isn’t analogous in my opinion since you are referring to a crime...and no one can ever “expect” to be the victim of a crime. Also, you don’t have “standing” in criminal cases since those are brought by the state, not by the party injured.
To me, a better analogy is in a lease agreement that explicitly states no subleasing is allowed. If I rent a place from a guy and he says no subleasing is allowed, and then I sublease, he can sue to cancel the contract due to a breach. If, however, he accepts rent from my subleasee for a few months, then he has accepted the change in the arrangement thru his knowledge of the subleasee and would likely lose his standing to sue for breach due to his knowledge of the sublease and acceptance of payments with that knowledge.
No matter what people on this board say, breaches do not happen in a bubble. Knowledge is a factor.
If the court rulings thus far are any guide, the courts don't seem to want to get anywhere near ruling on the merits of the NWS.
Well, I'm not sure that's a fair statement. HERA is law, and the courts can not just ignore it. Only by getting past HERA can the merits of the NWS be discussed. Perry is a big step forward in this manner due to the remand that will mean that the merits must be discussed at least in some way. Unfortunately, as of today, Perry is the only case that has successfully bypassed HERA in any way...mostly because the other cases to date did not have the required causes of actions to do so.
I thought at least one of the plaintiffs had bought in after the NWS, but I suppose their suit would have been dismissed for lack of standing long before now.
Are you talking about the Perry case? The Perry case was brought by a hedge fund, not individual shareholders.
Anyone who bought after the NWS would almost certainly have their case dismissed for lack of standing.
When assigning money damages would the courts care about the fate of other non-plaintiff shareholders?
No...almost certainly not. In equitable remedies, the courts will consider the burden on the public...for example, if the only way to satisfy a plaintiff is to shut down a power plant, the courts will consider that shutting down the power plant would put people out of work, and possibly increase the cost of power for many people. But for a money remedy, there is no such burden to consider.
That being said, if the courts were to award money damages to plaintiffs, non-plaintiff shareholders who have standing to sue could do so under the theory of collateral estoppel (a matter already adjudicated does not need to be re-adjudicated). Those cases go pretty fast, usually.
This is comforting if I understand it correctly.
I am glad you find it comforting. haha. I suppose one could find comfort in this if they believe the other cases have a shot of winning. I've been skeptical of pretty much every other existing case so far.
One dark scenario has all the plaintiffs being handed money damages and non-plaintiff shareholders left with no outstanding lawsuits left and nobody to fight on their behalf. It has been nice riding on the backs of the plaintiffs and their lawyers thus far, I have to say.
Shareholders can fight on their own behalf. Non-plaintiff shareholders can't benefit from money damages unless they file themselves.
Given that the Perry plaintiffs didn't ask for money in their complaint (other than "Granting such other and further relief as this Court deems just and proper." in the original Prayer for Relief), how likely is it that the court would grant money damages and not touch the NWS?
Courts ALWAYS prefer to give money damages rather than provide equitable relief. It's just much easier for them. So, in answer to your question, I would say that it is very likely the courts would grant money damages rather than touch the NWS...though not guaranteed.
It seems like a strange resolution, especially if the plaintiffs are not happy with the amount of money. Could that be appealed again?
It would not be that strange of a resolution. Let's not forget the main reason the lawsuits exist...they aren't suing because the NWS is burdening their way of life here...they are suing because the NWS has cost them money. The courts could decide to remedy this by finding money damages and assigning them to the plaintiffs.
As for whether the plaintiff's are happy with the amount of money or not,...that isn't up to them. Judgments are determined by the court, not by the plaintiff.
However,...that being said, yes they can appeal the amount of the money judgment without appealing the ruling itself. The appeals court would review the amount of damages and determine if they were reasonable or not.
Even then, if the plaintiffs get money they will still have their shares and could very well continue to fight.
This is a false statement. After plaintiff's have won or lost their lawsuit, they can not sue again. FRCP pleading rules require all known lawsuits to be filed at the same time. A plaintiff can not sue for something, win, and then file a second lawsuit for a related matter. No matter how this fight ends, that's it for the plaintiffs that are in the suit.
Also, I would add that they would not necessarily have their shares. The courts could, within their right, undo the contract that created the sale of shares as part of the judgment. For example, if you buy a car that turns out to be a lemon, and you sue for the price of the car, the court isn't going to give you the price of the car and let you keep the car. The car would go back to the other party. This is the same thing.
I can't see all the lawsuits disappearing via courts ordering damages to be paid and not touching the NWS.
The lawsuits don't need to disappear. We are only talking about the plaintiff's in the Perry case right now. They can be remedied without affecting other cases.