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don't forget why we had the letter agreement:
d. Enjoining FHFA and its officers, employees, and agents from
implementing, applying, or taking any action whatsoever pursuant to the Net Worth Sweep;
e. Enjoining Treasury and its officers, employees, and agents from
implementing, applying, or taking any action whatsoever pursuant to the Net Worth Sweep;
https://gselinks.com/Court_Filings/Collins/16-cv-03113-0001.pdf
It is not the job of the SCOTUS to decide about a multimember boards or single director. The question asked is “is for cause legal”
1) if legal: a fourth branch is added to the constitution,
2) if not legal: “for cause” will change to “at will” and FHFA will become an Executive agency
Not sure I haven't been able to find the document online yet
It looks like Sisti was settled
https://www.courtlistener.com/docket/6900150/sisti-v-federal-housing-finance-agency/
Sisti v. Federal Housing Finance Agency
Case number: 17-005 (90-1762)(17-042)
Judge: John James McConnell, Jr
District Court, D. Rhode Island
Claim: FHFA, Fannie Mae, and Freddie Mac are government entities
https://www.courtlistener.com/docket/6900150/sisti-v-federal-housing-finance-agency/
March 24, 2020 Stipulation ~Until - Set Scheduling Order Deadlines
The Parties report to the Court that they are currently re-engaged in negotiations aimed at resolving the action. In order to afford the Parties with sufficient time to complete these discussions and discovery (if necessary), the Parties jointly request the Court extend the scheduling order deadlines by three (3) months to the following:
Factual Discovery to close by 6/30/2020;
Plaintiff's Expert Disclosures shall be made by 7/30/2020;
Defendants' Expert Disclosures shall be made by 8/28/2020;
Expert Discovery to close by 9/30/2020; and
Dispositive Motions due by 10/30/2020.
https://www.courtlistener.com/recap/gov.uscourts.rid.41482/gov.uscourts.rid.41482.53.0.pdf
When decided FHFA, FNMA and FMCC are government entities for matters of constitutional claims of due process and will confirm or not the paragraph nobody can take action while in conservatorship.
https://ecf.rid.uscourts.gov/cgi-bin/show_public_doc?2017cv0005-39
Sept 15, 2020 Notice of Hearing
Sept 29, 2020 Main Doc¬ument Miscellaneous Relief
Sept 30, 2020 Hearing Cancelled
Sept 30, 2020 Order on Motion for Miscellaneous Relief
Sept 30, 2020 Judgment
https://www.courtlistener.com/docket/6900150/sisti-v-federal-housing-finance-agency/
Correct and they already decided in Seila a 4th branch is a bridge too far that is 1+1
Most problematic for the government is of course the laws now contradict each other (meaning Nondelegation Doctrine & 12 U.S.C. § 4617(f)) and that is why Collins want this confirmed and ruled on
In it brief it states”
The lower court cases are basically dismissed because of 12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause), however:
1) 4617F violates the Nondelegation Doctrine as congress made clear the FHFA is in existence because it should conserve and preserve and put in sound and solvent condition
2) 4617F violates the constitution separation of powers
A) Legislative Power (the power to pass laws) to Congress
B) Executive Power (the power to administer the laws) to the President
C) Judicial Power (the power to interpret and enforce the laws) to the Courts
So B) forbids C) and that is not allowed per the constitution
So they got away with it in the lower courts, but in SCOTUS it will not, as otherwise the constitution needs to be changed, and they are aware of that of course
Fiduciary Duty
1) FHFA has fiduciary duty towards Fannie and Freddie
2) Treasury has Fiduciary duty towards the taxpayers(aka IRS)
The fiduciary duty is all about ethics, and expectations if I give you $100 to buy something for me and you agree to get it for me, you breach by trust if you do not deliver the product and go home instead and keep the $100, same for FHFA, they talked the BOD into conservatorship, so far so good, then the next day they entered into the SPSPA, now it starts getting complicated as the shareholders must now hear from the BOD or FHFA what happened, then from the official statements they put out it is clear the FHFA wants to conserve and preserve and put in sound and solvent condition, but the SPSPA 3th amendment breaches that fiduciary duty and the Nondelegation Doctrine, also the company shareholders would not expect it to be seized in perpetually as that power was not granted by congress
If in the lawsuits they talk about “the taxpayer” Treasury does the talking, not the FHFA
https://www.investopedia.com/ask/answers/042915/what-are-some-examples-fiduciary-duty.asp#:~:text=Under%20the%20U.S.%20legal%20system,the%20interest%20of%20the%20other.&text=The%20fiduciary%20must%20knowingly%20accept,act%20on%20the%20client's%20behalf.&text=or%20the%20interests%20of%20a%20third%20party%20instead%20of%20a%20client%E2%80%99s%20interests.
Fannie Mae & Freddie Mac conservator Litigation, FNMA, FMCC updated Sept 25, 2020
(Control-F “#Sept” for update)
1) 19-422 Patrick J Collins v. Mnuchin .… Common & Preferred, Derivative
2) 19-563 Mnuchin v. Patrick J Collins ……. Relates to all cases
COURT: SUPREME COURT of the United States
Judges: Roberts, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh
https://www.scotusblog.com/case-files/cases/collins-v-mnuchin/
https://www.scotusblog.com/case-files/cases/mnuchin-v-collins/
Above 2 cases are consolidated, the related 3 cases are :
- 17-497 Rop v. Federal Housing Finance agency ……. Common & Preferred, Derivative
- 18-2506 Atif F. Bhatti vs. FHFA ………………………… Common & Preferred, Derivative
- 18-3478 Wazee Street Opportunities v. USA …… Common, Class action, Derivative
Collins Claim:
(1) Whether FHFA’s structure violates the separation of powers; and
(2) Whether the courts must set aside a final agency action that FHFA took when it was unconstitutionally structured and strike down the statutory provisions that make FHFA independent.
Collins identified the FHFA breached following statutory provisions by its actions:
a) 5 U.S.C. § 706(2)(C) hold unlawful and set aside agency action, findings, and conclusions found to be—in excess of statutory jurisdiction, authority, or limitations, or short of statutory right
b) 5 U.S.C. § 706(2)(A) hold unlawful and set aside agency action, findings, and conclusions found to be— arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law
And found following U.S. Codes have issues because of the actions FHFA have taken
c) 44 U.S.C. § 3502 (5) Term “independent agency” means the Board of Governors of the FHFA
d) 12 U.S.C. § 4511(a) Establishment
e) 12 U.S.C. § 4512(b)(2) Term (5th circuit found it violates the separation of powers)
f) 12 U.S.C. § 4516(f)(2) Not Government funds
g) 12 U.S.C. § 4617(a) HERA empowered FHFA to appoint itself as the conservator
h) 12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
i) 12 U.S.C. § 4617(b)(2)(D) put in sound and solvent condition; and preserve and conserve
j) 12 U.S.C. § 4617(b)(2)(A)(i) General powers (succession clause)
k)
http://www.supremecourt.gov/DocketPDF/19/19-422/116983/20190925131502103_Collins%20Petition--PDFA.pdf
Mnuchin claims:
(1) Whether the statute’s anti-injunction clause, which precludes courts from taking any action that would “restrain or affect the exercise of powers or functions of the Agency as a conservator,” 12 U.S.C. 4617(f), precludes a federal court from setting aside the Third Amendment.
(2) Whether the statute’s succession clause (12 U.S.C. § 4617(b)(2)(A)(i)) —under which FHFA, as conservator, inherits the shareholders’ rights to bring derivative actions on behalf of the enterprises—precludes the shareholders from challenging the Third Amendment.
According to the Government it has following U.S. Codes that allowed them to implement the NWS
a) 12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
b) 12 U.S.C. § 4617(b)(2)(A)(i) General powers (succession clause)
c) 12 U.S.C. § 4617(b)(2)(B) Operate the regulated entity
d) 12 U.S.C. § 4617 Authority over critically undercapitalized regulated entities
e) 12 U.S.C. § 4617(b)(2)(D) put in sound and solvent condition; and preserve and conserve
http://www.supremecourt.gov/DocketPDF/19/19-563/120380/20191025201313249_Mnuchin%20FINAL.pdf
July 9, 2020 The U.S. Supreme Court granted the Collins Plaintiffs’ and the government’s petitions to review the Fifth Circuit’s decision that state, APA claims are barred by 12 U.S.C. § 4617(f), and REMAND declaring the “for cause” 12 U.S.C. § 4512(b)(2) violates the Constitution’s separation-of-powers principles.
Aug 17, 2020 - Aaron Nielson, Esquire, of Provo, Utah, is invited to brief and argue, as amicus curiae, in support of the position that the structure of the Federal Housing Finance Agency does not violate the separation of powers
Aug 18, 2020 - Mnuchin, et al., shall file an opening brief on the questions presented by the petition in No. 19-563, limited to 13,000 words, by Monday, August 17, 2020 Collins, et al., shall file a consolidated response in No. 19-563 and opening brief in No. 19-422, limited to 20,000 words, by Wednesday, September 16, 2020. That brief shall bear a light red cover. The Court-appointed amicus curiae shall file a brief, limited to 13,000 words, by Friday, October 16, 2020. That brief shall bear a dark green cover. Mnuchin, et al., shall file a consolidated reply and response brief, limited to 13,000 words, by Friday, October 23, 2020. Collins, et al., shall file a consolidated reply and response brief to brief of Court-appointed amicus curiae, limited to 6,000 words, by Monday, November 23, 2020. That brief shall bear a tan cover. The brief of any amicus curiae in support of Collins, et al., or in support of neither set of parties, shall be filed by Wednesday, September 23, 2020. Those briefs shall bear a light green cover. The brief of any amicus curiae in support of Mnuchin, et al., or in support of Court-appointed amicus curiae, shall be filed by Friday, October 30, 2020. Those briefs shall bear a dark green cover
- Mnuchin, filed an opening brief by Monday, August 17, 2020 http://www.supremecourt.gov/DocketPDF/19/19-422/150469/20200817200402203_19-563tsUnitedStates.pdf
- Collins, shall file a response by Wednesday, September 16, 2020
- Aaron Nielson (amicus curiae) shall file a brief, by Friday, October 16, 2020
- Mnuchin, et al., shall file a reply and response brief, by Friday, October 23, 2020
- Collins, shall file a reply to amicus curiae, by Monday, November 23, 2020.
- Aaron Nielson amicus curiae in support of Collins, et al., or in support of neither set of parties, shall be filed by Wednesday, September 23, 2020
- Aaron Nielson (amicus curiae) in support of Mnuchin, et al., or in support of Court-appointed amicus curiae, shall be filed by Friday, October 30, 2020
- documents available at: https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public\19-422.html
#Sept 16, 2020 SET FOR ARGUMENT on Wednesday, December 9, 2020
#Sept 16, 2020 Brief of Patrick J. Collins, et al. submitted.
(in the brief Collins states: The Court should affirm the Fifth Circuit’s statutory
ruling and its ruling that FHFA is unconstitutionally structured. It should reverse the Fifth Circuit’s ruling on the appropriate remedy for Plaintiffs’ constitutional claim and order that the Third Amendment be set aside.)
http://www.supremecourt.gov/DocketPDF/19/19-422/154153/20200916135926128_19-422%20Brief%20of%20Patrick%20J.%20Collins%20et%20al..pdf
#Sept 22, 2020 Amicus brief of Timothy Howard submitted
(in the brief Timothy wants the same As requested by Plaintiffs, the Court should:
(1) affirm the Fifth Circuit’s statutory ruling and its ruling that FHFA is unconstitutionally structured; (2) reverse the Fifth Circuit’s ruling on the appropriate remedy for Plaintiffs’ constitutional claim; and (3) order that the Third Amendment be set aside.)
http://www.supremecourt.gov/DocketPDF/19/19-422/154595/20200922104336414_Amicus%20Brief%20of%20Timothy%20Howard%20for%20Filing.pdf
#Sept 23, 2020 Brief for amicus curiae Americans For Prosperity Foundation in support of Patrick J. Collins et al.(in this brief it wants Humphrey’s Executor overruled but it does not apply here, as it was a board of directors, the FHFA is headed by a single director and would establish a news branch within the separation of powers, which is according to the 5th circuit a bridge too far “stretches the independent-agency pattern beyond what the Constitution allows.” And SCOTUS itself already ruled in Seila: “ The Court(SCOTUS) declines to extend these precedents to an independ¬ent agency led by a single Director and vested with significant execu¬tive power”
http://www.supremecourt.gov/DocketPDF/19/19-422/154677/20200923110806585_2020.09.23%20AFPF%20Amicus%20Br.%20ISO%20Collins.pdf
#Sept 23, 2020 Brief of the New Civil Liberties Alliance as amicus curiae in support of Petitioners
(in this brief it wants SCOTUS to vacate the 5th circuit “prospective relief”/ no Relief to Shareholders mantra and instead order relief that remedies Petitioners’ injuries)
http://www.supremecourt.gov/DocketPDF/19/19-422/154683/20200923114913053_Collins%20v%20Mnuchin-%20NCLA%20Amicus.pdf
#Sept 23, 2020 brief amicus curiae of pacific legal foundation in support of Collins, et al.
(in this brief it wants SCOTUS to rule the FHFA is unconstitutional structured and as a result, the agency’s decision implementing the Net Worth Sweep must be vacated.)
http://www.supremecourt.gov/DocketPDF/19/19-422/154707/20200923131044714_FINAL%20FINAL%20Collins%20AC%20Brief.pdf
#Sept 23, 2020 brief of amicus curiae Thomas P. Vartanian in support of petitioners in
no. 19-422 and respondents in no. 19-563 (in his brief he wants “the Court should
affirm the Fifth Circuit’s rulings that the shareholders have plausibly alleged that the Net Worth Sweep is not within FHFA’s authority as a conservator and that the statutory claim of the Companies’ shareholders is therefore not barred by HERA’s anti-injunction provision. 12 U.S.C. § 4617(f) Limitation on court action”
http://www.supremecourt.gov/DocketPDF/19/19-422/154723/20200923140924837_19-422%2019-563%20tsac%20Vartanian.pdf
#Sept 23, 2020 brief for amici curiae, Institutional Investors In Fannie Mae And Freddie Mac, in support of Patrick J. Collins, et al.
(in this brief it says the Fifth Circuit correctly held, the Plaintiffs here, wiped-out shareholders in the Companies, assert a statutory claim for violating HERA that, under the Administrative Procedure Act (APA), belongs to them(direct claim)—not to the Companies(derivative claim). Accordingly, the Succession Clause 12 U.S.C. § 4617(b)(2)(A)(i), does not bar Plaintiffs’ claim, and the government’s Behavior in violation of a law must face judicial review. As to Plaintiffs’ statutory claim, the Court should affirm.
http://www.supremecourt.gov/DocketPDF/19/19-422/154721/20200923140708824_19-422%2019-563InstitutionalInvestorsac.pdf
#Sept 23, 2020 brief of amici curiae Scholars in support of Patrick J. Collins
(in this brief Amici respectfully suggest that this case is an opportunity for this Court to reaffirm that foundational principle and send a message to lower courts – as well as to citizens, markets, and the government itself – that the government is not above the law, even when it is donning the helmet of economic firefighter.)
http://www.supremecourt.gov/DocketPDF/19/19-422/154743/20200923162343504_40151%20pdf%20Platt.pdf
#Sept 24, 2020 brief of amici curiae Bryndon Fisher, Bruce Reid, and Erick Shipmon in
support of neither party
(in this brief they state: For these reasons, the Court should decide that shareholder claims arising from the Third Amendment are derivative in nature and that they are not barred by HERA’s succession clause 12 U.S.C. § 4617(b)(2)(A)(i)
http://www.supremecourt.gov/DocketPDF/19/19-422/154783/20200923221622980_Fannie%20and%20Freddie%20Collins%20Merits%20Amicus%20Brief.pdf
3) (13-1025) (1:13-cv-01025-RCL), 14-5243)
Perry Capital LLC v. Jacob Lew …… Common & Preferred, Derivative
CLAIM: Derivative APA, 3th amendment
District Court, District of Columbia
Judge: Royce C. Lamberth
https://www.courtlistener.com/docket/4212073/perry-capital-llc-v-lew/
https://www.courtlistener.com/docket/3054444/perry-capital-llc-v-jacob-lew/
Court of Appeals for the D.C. Circuit
On appeal before Judge: Brown, Millett, Ginsburg
Consolidated with:
1:13-cv-01053, 14-5254(Fairholme)
1:13-cv-01439, 14-5260 (Arrowood),
1:13-cv-01288, 14-5262 (In re: Fannie Mae/Freddie Mac Senior)
Feb 21, 2017 following claims are remanded to the district court for further proceedings.
a) breach of contract and breach of the implied covenant of good faith and fair dealing regarding liquidation preferences
b) and the claim for breach of the implied covenant with respect to dividend rights, which claims we remand (to Lamberth) for further proceedings consistent with this opinion
c) it also found We hold that the stockholders’ statutory claims are barred by the Recovery Act’s strict limitation on judicial review. See 12 U.S.C. § 4617(f).
d) claims against FHFA and the Companies, some are barred because FHFA succeeded to all rights, powers, and privileges of the stockholders under the Recovery Act, id. § 4617(b)(2)(A)
https://www.govinfo.gov/content/pkg/USCOURTS-caDC-14-05243/pdf/USCOURTS-caDC-14-05243-1.pdf
July 1, 2020 complete fact discovery by January 22, 2021, trial date is set May 16, 2022
4) 13-1053 (14-5254) (1:13-cv-01053)
Fairholme Fund, Inc. v. FHFA……Preferred, Direct & Derivative
Honorable: Royce C. Lamberth
Claim: 3th amendment, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing
District Court for the District of Columbia
https://www.courtlistener.com/docket/4212077/fairholme-funds-inc-v-federal-housing-finance-agency/
July 12, 2019 Request For Production of documents (RFP) Treasury should produce (page 39-46)
https://gselinks.com/wp-content/uploads/2019/07/13-cv-01053-103.pdf
Nov 18, 2019 RFPs 1-8, 10-14, 15(a)-(d), 16-26, and 29-30. Granted, Treasury should produce these documents
https://www.courtlistener.com/recap/gov.uscourts.dcd.160910/gov.uscourts.dcd.160910.112.0.pdf
July 1, 2020 complete fact discovery by January 22, 2021, trial date is set May 16, 2022
5) 13-1288 (1:13-mc-01288)
In re Fannie Mae/Freddie Mac Senior Preferred Stock Purchase Agreement
Class Action Litigations …. Common & Preferred, Class Action, Direct & Derivative, Jury Demand
Honorable: Royce C. Lamberth
District Court for the District of Columbia
Direct claim, breaches of contract, breaches of the implied
covenant of good faith and fair dealing, breaches of fiduciary duties,
and violations of Delaware and Virginia law governing dividends
If the Direct claims are denied it also claims these Derivative: breaches of fiduciary duty, compensatory damages and disgorgement, breached the terms of the certificates of designation and the implied covenant of good faith and fair dealing, appropriate equitable and injunctive relief to remedy breaches of contract, breaches of the implied covenant of good faith and fair dealing, breaches of fiduciary duty, and violations of Delaware and Virginia Corporate law, including rescission of the Third Amendment. https://www.courtlistener.com/recap/gov.uscourts.dcd.163155/gov.uscourts.dcd.163155.71.0.pdf
https://www.courtlistener.com/docket/4212341/in-re-fannie-maefreddie-mac-senior-preferred-stock-purchase-agreement/
The Class:
6) N. Bradford Isbell ....... Common
7) Michelle M. Miller ...... Common
8) Charles Rattley ………… Common
9) Timothy J. Cassell ...... Common
10) 111 John Realty Corp… Preferred
11) United Equities Commodities Com ….. Preferred
12) 1:13-cv-01149 Joseph Cacciapalle ..... Preferred
13) 1:13-cv-01421 Marneu Holdings, Co .. Preferred
14) 1:13-cv-01169 American European Insurance Co ... Preferred
15) 1:13-cv-01443 Barry P. Borodkin ....... Preferred
16) 1:13-cv-01094 Mary Meiya Liao ....... Preferred
July 1, 2020 complete fact discovery by January 22, 2021, trial date is set May 16, 2022
17) 13-1439 (1:13-cv-01439)
Arrowood Indemnity Company v. Fannie Mae……Preferred, Direct & Derivative
Honorable: Royce C. Lamberth
Claim: 3th amendment, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing
District Court for the District of Columbia
https://www.courtlistener.com/docket/6995674/arrowood-indemnity-company-v-federal-national-mortgage-association/
July 1, 2020 complete fact discovery by January 22, 2021, trial date is set May 16, 2022
18) 16-3113 (4:16-cv-03113)( 17-20364)
Patrick J Collins v. FHFA-C, FHFA, and Treasury …………………….…Common & Preferred, Derivative
Honorable: Judge Nancy F Atlas
District Court, S.D. Texas
Claim: “for cause” separation of powers §?4512(b)(2)
1) are not in accordance with and violate HERA within the meaning of 5 U.S.C. § 706(2)(C)
2) that Treasury acted arbitrarily and capriciously within the meaning of 5 U.S.C. § 706(2)(A)
3) by executing the Net Worth Sweep, and that FHFA’s structure violates the separation of powers
https://www.courtlistener.com/docket/4533994/collins-v-lew/
Court of Appeals for the Fifth Circuit:
Before Judge Stewart, Haynes and Willett
https://www.courtlistener.com/docket/6179579/patrick-collins-v-steven-mnuchin-secretary/
July 16, 2018 Conclusion 5th circuit:
We AFFIRM the district court’s order granting the Agencies’ motions to dismiss the Shareholders’ APA claims because such claims are barred by 12 U.S.C. § 4617(f).(no court may take any action)
We REVERSE the district court’s order granting the Agencies’ motion for summary judgment regarding the Shareholders’ claim that the FHFA is unconstitutionally structured in violation of Article II and the Constitution’s separation of powers, and we REMAND to the district court with instructions to enter judgment declaring the “for cause” limitation on removal of the FHFA’s Director found in 12 U.S.C. § 4512(b)(2) violates the Constitution’s separation-of-powers principles.
The 5th circuit remanded this back to Judge Nancy F Atlas in District Court, S.D. Texas
http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV0.pdf
https://www.courtlistener.com/pdf/2018/07/16/patrick_collins_v._steven_mnuchin_secretar.pdf
Sept 25, 2019 Petition filed in SCOTUS see 19-422
19) 17-497 (1:17-cv-00497)
Rop v. Federal Housing Finance agency and Treasury…….Common & Preferred, Derivative
Honorable: Paul L. Maloney
District Court, W.D. Michigan
Claim: voiding 3th amendment & “for cause” and striking down HERA’s:
12 U.S.C. § 4511(a) Establishment
12 U.S.C. § 4512(b)(2) Term (5th circuit found it violates the separation of powers)
12 U.S.C. § 4617(a)(7) Agency not subject to any other Federal agency
https://www.courtlistener.com/docket/13521280/rop-v-federal-housing-finance-agency/
Sept 27, 2019 Notice of supplemental authority concerning Collins v. Mnuchin
http://www.glenbradford.com/wp-content/uploads/2019/09/17-cv-00497-0064.pdf
July 14, 2020 FHFA advises count I and Count II in Collins are identical to the Rop lawsuit
Count I Rop: Violation of the President’s Constitutional Removal Authority Against FHFA as Both Regulator and Conservator and Treasury
Count II Rop: Violation of the Separation of Powers Against FHFA as Both Regulator and Conservator and Treasury
#Sept 8, 2020 very strange ruling by judge Maloney:
“Plaintiffs’ amended complaint fails to state a claim. Accordingly, the Court will grant Defendants’ motions to dismiss on that basis.” While it already was decided by the 5th circuit 12 U.S.C. § 4512(b)(2) the term violated the constitution, obviously some precedents were ignored in this case, as it was already acknowledged on Sept 27 the case is related to Collins SCOTUS, this is unmistakably an error in judgment
20) 18-2506 (17-2185) (0:17-cv-02185)
Atif F. Bhatti vs. FHFA and Treasury ……………Common & Preferred, Derivative
Honorable: Patrick Joseph Schiltz
District Court, D. Minnesota
Claim: 3th amendment & “for cause” striking down Hera’s provisions:
12 U.S.C. § 4511(a) Establishment
12 U.S.C. § 4512(b)(2) Term (5th circuit found it violates the separation of powers)
12 U.S.C. § 4617(a)(7) Agency not subject to any other Federal agency
12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
https://www.courtlistener.com/docket/7379258/bhatti-v-federal-housing-finance-agency-the/
October 15, 2019 Oral arguments On appeal in the 8th circuit, The court strives to issue the opinion within 90 days after oral Argument
July 14, 2020 Bhatti advices the USCA court it can no longer be credibly argued that FHFA’s structure is constitutional.
21) 18-3478 (2:18-cv-03478)(2:18-cv-03478-NIQA)
Wazee Street Opportunities v. FHFA and Treasury ………Common, Class action, Derivative, Jury Demand
Honorable: Nitza I Quinones Alejandro
District Court, E.D. Pennsylvania
Claim: 3th amendment & “for cause” striking down Hera’s provisions:
12 U.S.C. § 4511(a) Establishment
12 U.S.C. § 4512(b)(2) Term (5th circuit found it violates the separation of powers)
12 U.S.C. § 4617(a)(7) Agency not subject to any other Federal agency
12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
https://www.courtlistener.com/docket/7681282/wazee-street-opportunities-fund-iv-lp-v-the-federal-housing-finance-agency/
Oct 3, 2019 Waiting on Collins, document 38 Supplemental authority filed by Defendant ….. in the matter of Collins v. Mnuchin, No. 17-20364, now 19-422 / 19-563)
July 15, 2020 FHFA advices Counts I and II Wazee are identical to the separation of powers in Collins
Counts I Wazee: Violation Of The President's Constitutional Removal Authority Against FHFA, As Regulator And Conservator, And Treasury
Counts II Wazee: Violation Of The Separation Of Powers Against FHFA, As Regulator And Conservator, And Treasury
http://www.glenbradford.com/wp-content/uploads/2020/07/18-cv-03478-0042.pdf
https://gselinks.com/wp-content/uploads/2018/08/18-cv-03478-0001-Complaint-8-20-18.pdf
July 20, 2020 judge Alejandro advices it keeps on staying after 9 months ~Until - Set/Clear Flags AND Suspense Order
--------------------------------------------------------------------------
Cases in the U.S. Court of Federal Claims (Sweeney)
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22) 2020-1912 2020-1914 (20-121) (20-122) (2020-121)(2020-122) (13-465C) (1:13-cv-00465) (17-1122)(17-104)
Fairholme Funds, Inc. v. United States………..Common & Preferred, Direct & Derivative
Honorable: Margaret M. Sweeney
United States Court of Federal Claims
https://www.courtlistener.com/docket/4198608/fairholme-funds-inc-v-united-states/
Claim: SEALED 413 AMENDED COMPLAINT (Entered: 03/08/2018)
Redacted version without coercion attacks available at:
https://www.docketbird.com/court-documents/Fairholme-Funds-Inc-et-al-v-USA/REDACTED-DOCUMENT-filed-by-ACADIA-INSURANCE-COMPANY-ADMIRAL-INDEMNITY-COMPANY-ADMIRAL-INSURANCE-COMPANY-ANDREW-T-BARRETT-BERKLEY-INSURANCE-COMPANY-BERKLEY-REGIONAL-INSURANCE-COMPANY-CAROLINA-CASUALTY-INSURANCE-COMPANY-CONTINENTAL-WESTERN-INSURANCE-CO/cofc-1:2013-cv-00465-00422
March 9, 2020 the interlocutory appeal was granted the
CFC identified six “controlling questions of law” raised by its order, the first three of
which pertain to the CFC’s decision to dismiss Petitioners’ direct claims:
(1) Whether the court lacks subject-matter jurisdiction over plaintiffs’ direct
claims for breach of fiduciary duty and breach of implied-in-fact contracts.
(2) Whether plaintiffs who purchased stock in Fannie and Freddie after the
PSPA amendments lack standing to pursue their direct claims.
(3) Whether plaintiffs lack standing to pursue their self-styled direct claims
because those claims are substantively derivative in nature.
The last three controlling questions identified by the CFC related to its decision
to deny the motion to dismiss Petitioners’ derivative claims:
(4) Whether plaintiffs have standing to assert derivative claims notwithstanding HERA’s succession clause. 12 U.S.C. § 4617(b)(2)(A)(i) (Fairholme & Fisher)
(5) Whether the [FHFA-as-conservator’s] actions are attributable to the United States such that the court possesses subject-matter jurisdiction to entertain plaintiffs’ derivative takings and illegal exaction claims. (Fairholme & Fisher)
(6) Whether plaintiffs’ allegations that the FHFA entered into an implied-in-fact contract with the Enterprises to operate the conservatorships for shareholder benefit fail as a matter of law.
http://www.glenbradford.com/wp-content/uploads/2020/03/20-121-0002.pdf
June 18, 2020 IT IS ORDERED THAT:
(1) The petitions are granted. This case is transferred to the regular docket. The appeals will be consolidated. Fairholme’s appeal will be designated as the lead appeal, and the government’s appeal will be designated as a cross-appeal. Fairholme’s opening brief is due within 60 days of the date of filing of this order (Aug 18, 2020)
(2) Owl Creek’s motion is granted to the extent that the amicus brief is accepted for filing. Any request for fur-ther relief from the court should be made after docketing.
July 31, 2020 - The United States respectfully requests that this Court hold this appeal and
cross-appeal and several companion appeals in abeyance until the Supreme Court
issues its decision in Mnuchin v. Collins, No. 19-563, and Collins v. Mnuchin, No. 19-422
(collectively, Collins)
Aug 5, 2020 ORDER Upon consideration of the appellants’ unopposed mo-tion to extend by 36 days, to September 22, 2020, the time to file their opening brief,
Aug 10, 2020 Fairholme Plaintiffs take no position on the Government’s motion to hold the appeals in abeyance
Aug 29, 2020 The motions to stay are denied
Sept15, 2020 The appellants related appeals submit a motion to modify the briefing schedule and to permit a modified briefing procedure. Upon consideration thereof, IT IS ORDERED THAT:
The briefing schedules are stayed pending the court’s disposition of the motions.
The following List Of Fannie Mae and Freddie Mac Shareholder Suits are Pending
23) 13-496C American European Insurance.…. Preferred, Class Action, Direct
https://www.courtlistener.com/docket/4198611/american-european-insurance-company-v-united-states/
24) 13-542C Francis J. Dennis ………………….…. Preferred
March 27, 2020 above 3 Plaintiff’s think none of their counts should be dismissed
25) 20-02190 (13-385C) Washington Federal v. United States . Common & Preferred, Class Action, Direct*
https://www.courtlistener.com/docket/4198605/washington-federal-v-united-states/
April 2, 2020 Plaintiff argues None of the claims in Fairholme apply to their case
April 16, 2020 the government thinks:
A) Fannie Mae And Freddie Mac Shareholders Lack Standing To Assert Substantively-Derivative Claims As Direct Claims
B) The Court Lacks Jurisdiction To Review The Merits Of The Enterprises’ Placement In Conservatorship
C) The Washington Federal Plaintiffs May Not Pursue Derivative Claims
July 9, 2020 The court must dismiss plaintiffs’ claims for lack of standing, If plaintiffs had asserted derivative claims in their amended complaint, the “conflict of interest” holding in First Hartford would have aided plaintiffs in their quest to establish standing. But they did not do so, Opinion and order:
https://www.courtlistener.com/recap/gov.uscourts.uscfc.28070/gov.uscourts.cofc.28070.100.0.pdf
Aug 17, 2020 Washington Federal filed a notice of appeal
Aug 24, 2020 WF to file its opening brief on or before Oct. 20, 2020
26) 13-608C Bryndon Fisher (FNMA) .........….. Common Derivative*
https://www.courtlistener.com/docket/4198614/fisher-v-united-states/
June 11, 2020 interlocutory appeal process Granted on following
(1) Whether plaintiffs have standing to assert derivative claims notwithstanding HERA’s succession clause. 12 U.S.C. § 4617(b)(2)(A)(i) (Question 4 in Fairholme)
(2) Whether the FHFA-C’s actions are attributable to the United States such that the court possesses subject-matter jurisdiction to entertain plaintiffs’ derivative takings and illegal exaction claims. (Question 5 in Fairholme)
27) 14-152C Bruce Reid (FMCC) …………………… Common Derivative*
https://www.courtlistener.com/docket/7737030/reid-v-united-states/
May 18, 2020 Fisher/Reid file motion to certify interlocutory appeal
May 19, 2020 Fisher: the court DENIES defendants motion to dismiss continues to stay and denies motion to lift the stay (doc#74)
June 4, 2020 Fairholme plaintiffs’ amicus brief in support of neither party
June 25, 2020 Plaintiffs delivered their petition to the Federal Circuit asking to pursue interlocutory appeal
28) 13-672C Erick Shipmon……..…………………… Common Derivative
https://www.courtlistener.com/docket/4198615/shipmon-v-united-states/
March 27, 2020 above 3 Plaintiff’s think their claim is substantially the same as Fairholme’s
April 7, 2020 TRANSCRIPT of proceedings held on March 5, 2020 before Chief Judge Margaret M. Sweeney. Total No. of Pages: 1-77. Release of Transcript Restriction set for 7/6/2020.
Aug 21, 2020 (Judges O’MALLEY, BRYSON, and TARANTO) Under the express language of § 1292(d)(2), this court has “discretion” whether to “permit an appeal” under the provision.
IT IS ORDERED THAT:
The petitions for permission to appeal are denied with-out prejudice to seeking leave to participate in Fairholme Funds, Inc. v. United States, Nos. 2020-1912, -1914, as amici.
29) 20-2020 (13-698C) Arrowood Indemnity Company ….. Preferred Direct*
https://www.courtlistener.com/docket/17277778/arrowood-indemnity-company-v-united-states/
April 6, 2020 Plaintiff’s think none of the Fairholme counts apply to their case
May 15, 2020 the court dismisses plaintiffs’ claims because it lacks jurisdiction to entertain their fiduciary duty and implied-in-fact-contract claims, and plaintiffs lack standing to pursue any of their claims. The court therefore GRANTS defendant’s motion to dismiss. https://www.courtlistener.com/recap/gov.uscourts.uscfc.28858/gov.uscourts.cofc.28858.69.0_1.pdf
Appeal filed in U.S. Court of Appeals, Federal Circuit
July 22, 2020 Filing 1 Appeal docketed. Received: 06/29/2020. [709375] Entry of Appearance is due 08/05/2020. Certificate of Interest is due on 08/05/2020. Docketing Statement is due 08/21/2020. Appellant's brief is due 09/21/2020. [JAL] [Entered: 07/22/2020 04:26 PM] https://dockets.justia.com/docket/circuit-courts/cafc/20-2020
30) 14-740C Louise Rafter .........…………………. Common Direct & Derivative*
https://gselinks.com/Court_Filings/Rafter/14-740-0027.pdf
March 31, 2020 plaintiff continue to stay until 21 days following resolution of Fairholme
31) 20-2037 (13-466C) Joseph Cacciapalle ………..………… Preferred, Class Action, Direct*
Class: Melvin Bareiss, Bryndon Fisher, Bruce Reid, Erick Shipmon,
American European Insurance Company, Francis J. Dennis,
32) 20-1934 (18-281C) Owl Creek Asia I L.P...........………. Preferred, Direct *
33) 20-1938 (18-369C) Akanthos Opportunity Master Fund .. Preferred, Direct *
34) 20-1954 (18-370C) Appaloosa Investment .........……. Preferred, Direct *
35) 20-1955 (18-371C) CSS LLC ……………………………………. Preferred, Direct *
36) 20-1936 (18-529C) Mason Capital L.P...........………….. Preferred, Direct *
https://www.courtlistener.com/docket/4198610/cacciapalle-v-united-states/
July 17, 2020 hereby appeals to the United States Court of Appeals for the Federal Circuit from the Opinion and Order [ECF No. 105] and Judgment [ECF No. 106]
June 26, 2020 The court lacks jurisdiction to entertain plaintiffs’ judicial takings claim and their fiduciary duty claim. Further, plaintiffs lack standing to bring their contract claims due to the absence of privity (relation between two parties that is recognized by law) with the United States, and lack standing to bring their nominally direct takings, illegal-exaction, and fiduciary duty claims because the nature of these claims is derivative, not direct. The court therefore GRANTS defendant’s motion to dismiss
https://www.courtlistener.com/recap/gov.uscourts.uscfc.28232/gov.uscourts.cofc.28232.105.0.pdf
March 26, 2020 above 5 plaintiffs don’t want to give up the direct claims and doubt the counts in Fairholme properly represent their counts, and point out the law was breached
June 8, 2020 the court DISMISSES plaintiff’s complaint because the court lacks jurisdiction to entertain its fiduciary duty and implied-in-fact-contract claims, and plaintiff lacks standing to pursue any of its claims. https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2018cv0369-60-0
June 8, 2020 again a very damaging ruling for the government but still the case is dismissed as: (FHFA can) “take any action authorized by [12 U.S.C. § 4617(b)),
which (it) determines is in the best interest of the (Enterprise) or the (FHFA)(Itself) .”
http://www.glenbradford.com/wp-content/uploads/2020/06/18-00281-0064.pdf
U.S. Court of Appeals, Federal Circuit
July 28, 2020 assigned case No. 20-2037 to the proceeding, and set Sept. 22, 2020, as the deadline to file its opening brief
Aug 10, 2020 Plaintiffs’ Combined Opposition To Motion To Hold Appeals In Abeyance:
“There is no just basis for delaying them any further”
37) 18-1124C Wazee Street……………….………… Common, Class Action, Direct & Derivative
38) 18-1150C Highfields Capital………………….. Common & Preferred, Direct
https://www.pacermonitor.com/public/case/25303845/HIGHFIELDS_CAPITAL_I_LP_et_al_v_USA Related To: Fairholme, Arrowood, Cacciapalle, 13-469, Dennis, Wazee Street, Fisher, Shipmon, Reid, Rafter, Owl Creek, Appaloosa, Akanthos, Css, Mason, 683 Cap. Partners, Patt
39) 18-711C 683 Capital Partners………..……….. Common, Preferred, Direct
40) 18-712C Joseph S. Patt………………………..… Preferred, Direct
41) 18-1226C Perry Capital LLC……………………. Common & Preferred, Direct & Derivative
42) 18-1155C CRS Master Fund LP…..…………… Preferred, Direct
Above 6 Plaintiffs are staying
43) 18-1240C Quinn Opportunities Master LP … Preferred, Direct
Sept 25, 2020 - Status unknown
44) 20-737C Joshua J. Angel v United States Treasury ….. Preferred, Direct, Class action
June 8, 2020 complaint filed, prayer for relief: Award $16 billion in compensatory damages to the Class against Treasury; C, Award prejudgment and post-judgment interest on those compensatory damages
Aug 18, 2020 Defendant’s Motion To Dismiss Pro Se Complaint: the Court should dismiss Mr. Angel’s complaint for lack of subject matter jurisdiction or, in the alternative, for failure to state claims upon which relief can be granted
#Sept 9, 2020 After meeting and conferring, the parties agreed that the deadline for Plaintiff to oppose Defendant’s motion to dismiss should be extended until September 30, 2020 (a 15 day extension)
#Sept 17, 2020 plaintiff filed an opposed motion for a stay of briefing on defendant’s motion to dismiss Accordingly, the court SUSPENDS briefing on defendant’s motion to dismiss until further order of the court. Briefing of plaintiff’s motion shall proceed pursuant to the rules of the court
* Jones Days plaintiffs
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Cases below are dismissed without ruling on merit
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45) 19-7062 (1:18-cv-01142) (18-1142)
Joshua J. Angel v. BOD of FNMA,FMCC & FHFA-C ….….Preferred, Direct
Previously assigned to: Honorable: Royce C. Lamberth
https://www.courtlistener.com/docket/6880882/angel-v-federal-home-loan-mortgage-corporation/
Claim: Breach of quarterly BOD duties, breach of contract, breached the implied covenant of good faith and fair dealing, breach of contractual rights for dividends, Breach of implicit guaranty on Junior Preferred dividends
District Court for the District of Columbia
https://www.courtlistener.com/docket/26534/joshua-angel-v-federal-home-loan-mortgage-co/
On appeal Judges Henderson, Griffith and Wilkins decided Mr. Angel’s appeal without oral argument
They decided april 24, 2020: “We affirm. The district court properly dismissed Angel’s initial complaint as time-barred.” “ ORDERED and ADJUDGED that the decision of the district court be AFFIRMED”
CASE LOST ON: STATUTE OF LIMITATIONS
http://www.glenbradford.com/wp-content/uploads/2020/04/19-7062-1839674.pdf
46) Arnetia Robinson v. Fed. Housing Fin. Agency (6th Cir. 2017)
(15-109, 7:15-cv-00109, 7:15-cv-109, 16-6680 )
CLAIM: Derivative, APA 3th amendment
District Court, E.D. Kentucky
Judge: Karen K. Caldwell
https://www.courtlistener.com/docket/4510286/robinson-v-federal-housing-finance-agency/ ??
On appeal before judge: Batchelder, Gibbons, and Cook
https://www.courtlistener.com/opinion/4445969/arnetia-robinson-v-fed-housing-fin-agency/
CASE LOST ON: HERA (“Congress is the proper governmental body to address poor legislative decisions” )
https://www.courtlistener.com/opinion/4445969/arnetia-robinson-v-fed-housing-fin-agency/
47) David J. Voacolo V. Federal National Mortgage Association (D.N.J. 2017)
(1:16-cv-01324)(16-1324)(17-5667)
https://www.courtlistener.com/docket/4214876/voacolo-v-federal-national-mortgage-association-fannie-mae/
District Court, D. New Jersey,
CLAIM: Derivative & Direct, APA 3th amendment, Damages (shares would have value of $35.- as of Aug-2017) https://gselinks.com/Court_Filings/Voacolo2/17-cv-05667-0001.pdf
Judge: Rudolph Contreras
On appeal https://www.courtlistener.com/docket/6354770/voacolo-v-fannie-mae/
Judge: Brian R. Martinotti
CASE LOST ON: Voacolo’s failure to oppose the motion
https://gselinks.com/Court_Filings/Voacolo2/17-cv-05667-0020.pdf
48) Saxton v. Federal Housing Finance Agency (N.D. Iowa 2015)
(15-0047) (1:15-cv-00047)(17-1727)
CLAIM: Derivative & Direct, APA 3th amendment, Damages
District Court, N.D. Iowa
Judge: Linda R. Reade
https://www.courtlistener.com/docket/5391361/saxton-v-federal-housing-finance-agency/
On appeal before judge: Benton, Kelly, and Stras
CASE LOST ON: HERA (A troublesome verdict for the government “12 U.S.C. § 4617(b)(2)(J)(ii) That is no typo” ” Congress, intentionally or otherwise, may have created a MONSTER by handing an agency breathtakingly broad powers and insulating the exercise of those powers from judicial review”) 12 U.S.C. § 4617(b)(2)(J)(ii) take any action authorized by this section, which the Agency determines is in the best interests of the regulated entity or the Agency(FHFA).
https://cases.justia.com/federal/appellate-courts/ca8/17-1727/17-1727-2018-08-23.pdf?ts=1535038225)
49) Jacobs v. Federal Housing Finance Agency (D. Del. 2015)
(1:15-cv-00708)(15-708)(17-3794)
CLAIM: Derivative & Direct, 3th amendment, Damages
District Court, D. Delaware
Judge: Gregory Moneta Sleet
https://www.courtlistener.com/docket/4220900/jacobs-v-federal-housing-finance-agency/
https://www.courtlistener.com/docket/7297926/david-jacobs-v-federal-housing-finance-agency/
On appeal Before judge: Hardiman, Krause, and Bibas
CASE LOST ON: HERA
http://www.glenbradford.com/wp-content/uploads/2018/11/17-3794-0033.pdf
50) Continental Western Insurance Company v. FHFA (District Court, S.D. Iowa, 2014)
(14-42)( 4:14-cv-00042)
CLAIM: Derivative & Direct, APA 3th amendment, Damages
Judge: Robert W. Pratt
District Court, S.D. Iowa
https://www.courtlistener.com/docket/4247079/continental-western-insurance-company-v-the-federal-housing-finance-agency/
CASE LOST ON: HERA
https://www.courtlistener.com/recap/gov.uscourts.iasd.51533.68.0.pdf
51) Christopher Roberts v. FHFA (7th Cir. 2018)
(16-2107)(1:16-cv-02107)(17-1880)
CLAIM: Derivative, 3th amendment, Treasury’s securities declared invalid
Judge: Edmond E. Chang
District Court, N.D. Illinois
https://www.courtlistener.com/docket/5642392/roberts-v-the-federal-housing-finance-agency/
On appeal before judge Wood, Bauer and Easterbrook
CASE LOST ON: HERA disempowers courts and existing stockholders, directors, and officers https://www.courtlistener.com/opinion/4495195/christopher-roberts-v-fhfa/
(the 5th circuit en banc decision conflicts this ruling)
52) Rafter v. Department Of The Treasury 14-1404 (1:14-cv-01404)
District Court, District of Columbia
Judge: Royce C. Lamberth
https://www.courtlistener.com/docket/4212962/rafter-v-department-of-the-treasury/
https://www.valueplays.net/2015/01/21/lambreth-rules-pershing-v-treasury/
CASE LOST ON: Voluntary Dismissal one business day before Defendants dispositive motions
https://www.courtlistener.com/recap/gov.uscourts.dcd.167678.20.0.pdf
53) Pagliara v. Federal National Mortgage Association (FNMA) (1:16-cv-00193)
District Court, D. Delaware
Judge: Gregory Moneta Sleet
https://www.courtlistener.com/docket/4499522/pagliara-v-federal-national-mortgage-association/
CASE LOST ON: Failure to state a claim upon which relief can be granted
http://courts.delaware.gov/Opinions/Download.aspx?id=257440
54) Pagliara v. Federal Home Loan Mortgage Corporation (FMCC) (1:16-cv-00337)
District Court, E.D. Virginia
Judge: James Chris Cacheris
CASE LOST ON: The Court has little confidence Pagliara seeks these records for valuation purposes
https://www.courtlistener.com/docket/4536190/pagliara-v-federal-home-loan-mortgage-corporation/
55) In re: Federal Home Loan Mortgage Corporation Derivative Litigation (1:08-cv-00773-LMB-TCB)
District Court, E.D. Virginia
Judge: Leonie M. Brinkema
The Class:
1:08-cv-773, Adams Family Trust v. Syron
1:08-cv-849, Louisiana Municipal Police Employees Retirement System v. Syron
1:08-cv-1247, Bassman v. Syron
https://www.courtlistener.com/docket/4832137/in-re-federal-home-loan-mortgage-corporation-derivative-litigation/
https://www.docketbird.com/court-documents/Federal-Housing-Finance-Agency-v-Hsbc-North-America-Holdings-Inc-et-al/Exhibit/nysd-1:2011-cv-06189-00152-037
CASE LOST ON: HERA, the sweeping language of HERA, which not only transfers "all rights, titles, powers, and privileges" of stockholders to the FHFA, but also bars a court from "restraining or affect(ing) the exercise of powers or functions of the (FHFA) as a conservator or a receiver
Sisti v. Federal Housing Finance Agency
Case number: 17-005 (90-1762)(17-042)
Honorable: John James McConnell, Jr
District Court, D. Rhode Island
Claim: FHFA, Fannie Mae, and Freddie Mac are government entities
https://www.courtlistener.com/docket/6900150/sisti-v-federal-housing-finance-agency/
March 24, 2020 Stipulation ~Until - Set Scheduling Order Deadlines
The Parties report to the Court that they are currently re-engaged in negotiations aimed at resolving the action. In order to afford the Parties with sufficient time to complete these discussions and discovery (if necessary), the Parties jointly request the Court extend the scheduling order deadlines by three (3) months to the following:
Factual Discovery to close by 6/30/2020;
Plaintiff's Expert Disclosures shall be made by 7/30/2020;
Defendants' Expert Disclosures shall be made by 8/28/2020;
Expert Discovery to close by 9/30/2020; and
Dispositive Motions due by 10/30/2020.
https://www.courtlistener.com/recap/gov.uscourts.rid.41482/gov.uscourts.rid.41482.53.0.pdf
When decided FHFA, FNMA and FMCC are government entities for matters of constitutional claims of due process and will confirm or not the paragraph nobody can take action while in conservatorship.
https://ecf.rid.uscourts.gov/cgi-bin/show_public_doc?2017cv0005-39
#Sept 15, 2020 Notice of Hearing
Seila law v. Consumer Financial Protection bureau (CFPB)
Case number: 19-7 (17-56324)
Court: Supreme Court of the United States
Argued March 3, 2020—Decided June 29, 2020
(1) “for-cause” removal protection is UNCONSTITUTIONAL
(2) 12 U.S.C. §5491(c)(3) can be severed from the Dodd-Frank Act
https://www.supremecourt.gov/opinions/19pdf/19-7_n6io.pdf
ACG analytics:
#Sept 22, 2020 According to this paper the “Government Poised to Lose SCOTUS GSE Case”
https://preview.mailerlite.com/a6d8z4/1515925156889892623/d9z3/
The Reconstruction of conservatorship in Fannie Mae and Freddie Mac
What happened to Fannie and Freddie when they went into Conservatorship
And what is the problem, and why are they not released?
19 minute read
In order the make any sense of the information out there it is important to know what happened before any prediction can be made and what an eventual outcome would be, and if these outcomes make any sense, legal wise, this post starts at the beginning of the conservatorship
The Conservatorship
On Sept 6, 2008 the BOD held a duly called meeting with the FHFA, and agreed voluntary to FHFA’s conservatorship, there are no meeting minutes from the BOD and because they are absent Sweeney’s court determined the deal falls under an implied-in-fact deal,
in order for this implied-in-fact contract to be legal it must contain:
1) an unambiguous offer,
2) unambiguous acceptance,
3) mutual intent to be bound,
4) and consideration
https://www.law.cornell.edu/wex/contract_implied_in_fact
The consideration is a benefit which must be bargained for between the parties(more on that below)
On Sept 7, 2008 a day later the FHFA agreed with treasury on the SPSPA, which contained a funding commitment and a warrant, and by that, as all conservators do, it should protect the companies. That is to put in sound and solvent condition, and conserve and preserve, but does this agreement?
The agreement FHFA and Treasury established is the SPSPA (Senior Preferred Stock Purchase Agreement), among other things it contains following:
“The Board of Directors of Seller, by valid action at a duly called meeting of the Board of Directors on September 6, 2008, consented to the appointment of the Agency as conservator for purposes of Section 1367(a)(3)(I) of the FHE Act, and the Director of the Agency has appointed the Agency as Conservator for Seller pursuant to Section 1367(a)(1) of the FHE Act, and each such action has not been rescinded, revoked or modified in any respect.”
So this is the legal consideration https://www.sec.gov/Archives/edgar/data/310522/000129993308004619/exhibit1.htm
(1367 of the FHE Act = §4617) https://www.law.cornell.edu/cfr/text/17/246.8
HERA is now the law the FHFA receives it power from, and it was enacted July 30, 2008(public law 110-289 https://www.govinfo.gov/content/pkg/PLAW-110publ289/html/PLAW-110publ289.htm), This Law gives FHFA 11 legal reasons to put Fannie and Freddie into conservatorship per § 4617(a)(3) https://www.law.cornell.edu/uscode/text/12/4617
1) Assets insufficient for obligations The assets of the regulated entity are less than the obligations of the regulated entity to its creditors and others.
2) Substantial dissipation of assets or earnings due to—
(i)any violation of any provision of Federal or State law; or
(ii)any unsafe or unsound practice.
3) Unsafe or unsound condition
An unsafe or unsound condition to transact business.
4) Cease and desist orders
Any willful violation of a cease and desist order that has become final.
5) Concealment
Any concealment of the books, papers, records, or assets of the regulated entity, or any refusal to submit the books, papers, records, or affairs of the regulated entity, for inspection to any examiner or to any lawful agent of the Director.
6) Inability to meet obligations
The regulated entity is likely to be unable to pay its obligations or meet the demands of its creditors in the normal course of business.
7) Losses, The regulated entity has incurred or is likely to incur losses that will deplete all or substantially all of its capital, and there is no reasonable prospect for the regulated entity to become adequately capitalized (as defined in section 4614(a)(1) of this title).
( Fannie Mae made following statement on their Q3 statement 2008:
Current Capital Classification
On October 9, 2008, FHFA announced that it will not issue quarterly capital classifications during the conservatorship. FHFA also announced that we were classified as “undercapitalized” as of June 30, 2008 (the most recent date for which results have been published by FHFA). FHFA determined that, as of June 30, 2008, our core capital exceeded our statutory minimum capital requirement by $14.3 billion, or 43.9%, and our total capital exceeded our statutory risk-based capital requirement by $19.3 billion, or 53.1%. Under the Regulatory Reform Act, however, FHFA has the authority to make a discretionary downgrade of our capital adequacy classification should certain safety and soundness conditions arise that could impact future capital adequacy.
Accordingly, although the amount of capital we held as of June 30, 2008 was sufficient to meet our statutory and regulatory capital requirements, FHFA downgraded our capital classification to “undercapitalized”’ based on its discretionary authority provided in the Regulatory Reform Act and events that occurred subsequent to June 30, 2008. FHFA cited the following factors as supporting its decision:
a) Accelerating safety and soundness weaknesses, especially with regard to credit risk, earnings outlook and
b) Continued and substantial deterioration in equity, debt and MBS market conditions;
c) Our current and projected financial performance and condition, as reflected in our second quarter financial report and our ongoing examination by FHFA;
d) Our inability to raise capital or to issue debt according to normal practices and prices;
e) Our critical importance in supporting the country’s residential mortgage market; and
f) Concerns that a growing proportion of our statutory core capital consisted of intangible assets.
https://www.fanniemae.com/sites/g/files/koqyhd191/files/migrated-files/resources/file/ir/pdf/quarterly-annual-results/2008/q32008.pdf
(bottom of page 110)
Somehow this gives a whole different meaning to § 4617(a)(3) (Grounds for discretionary appointment of conservator or receiver) as the conservator took away the reasonable prospect for the regulated entity to become adequately capitalized
8) Violations of law Any violation of any law or regulation, or any unsafe or unsound practice or condition that is likely to—
(i)cause insolvency or substantial dissipation of assets or earnings; or
(ii)weaken the condition of the regulated entity.
(I)Consent
The regulated entity, by resolution of its board of directors or its shareholders or members, consents to the appointment.
9) Undercapitalization The regulated entity is undercapitalized or significantly undercapitalized (as defined in section 4614(a)(3) of this title), and—
(i)has no reasonable prospect of becoming adequately capitalized;
(ii)fails to become adequately capitalized, as required by—
(I)section 4615(a)(1) of this title with respect to a regulated entity; or
(II)section 4616(a)(1) of this title with respect to a significantly undercapitalized regulated entity;
(iii)fails to submit a capital restoration plan acceptable to the Agency within the time prescribed under section 4622 of this title; or
(iv)materially fails to implement a capital restoration plan submitted and accepted under section 4622 of this title.
10) Critical undercapitalization
The regulated entity is critically undercapitalized, as defined in section 4614(a)(4) of this title.
11) Money laundering
The Attorney General notifies the Director in writing that the regulated entity has been found guilty of a criminal offense under section 1956 or 1957 of title 18 or section 5322 or 5324 of title 31.
Then if none of the above 11 legal reasons to enter into conservatorship occurred at the time the boards agreed to conservatorship, what is the legal reason the FHFA entered into conservatorship?
For purposes of, “(7)the losses or likely losses” is what they say but it is proven by Blackrock and the FHFA itself this was not the case only weeks before conservatorship started (more on that below)
Now remember the current applicable rules:
1) Critical capital Level 1.25%
https://www.law.cornell.edu/uscode/text/12/4613
https://www.fhfa.gov/SupervisionRegulation/FannieMaeandFreddieMac/Documents/critcap6908.pdf
2) Minimum capital level 2.5%
https://www.law.cornell.edu/uscode/text/12/4612
https://www.fhfa.gov/SupervisionRegulation/FannieMaeandFreddieMac/Documents/2Q2008MinCap.pdf
3) Risk-based capital level 2.8%
https://www.law.cornell.edu/uscode/text/12/4611
https://www.fhfa.gov/SupervisionRegulation/FannieMaeandFreddieMac/Documents/2Q2008RBC.pdf
https://www.fhfa.gov/SupervisionRegulation/FannieMaeandFreddieMac/Pages/Capital-Requirements.aspx
The Problems:
On the legal side there are 2 basic stands:
1) FHFA in unconstitutional per the constitution
2) the 3th amendment to the SPSPA is illegal
The unconstitutional problem can be found in:
a) 44 U.S.C. § 3502 (5) Term “independent agency” means the Board of Governors of the FHFA
b) 12 U.S.C. § 4511(a) Establishment
c) 12 U.S.C. § 4512(b)(2) Term (5th circuit found it violates the separation of powers)
d) 12 U.S.C. § 4516(f)(2) Not Government funds
e) 12 U.S.C. § 4617(a) HERA empowered FHFA to appoint itself as the conservator
f) 12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
g) 12 U.S.C. § 4617(b)(2)A)(i)) Incidental powers (succession clause)
http://www.supremecourt.gov/DocketPDF/19/19-422/116983/20190925131502103_Collins%20Petition--PDFA.pdf
The 3th amendment problems are put forward by all plaintiffs,
This 3th amendment to the SPSPA holds:
1) “Net Worth Amount” must be paid as dividends to treasury, the capital means (i) the total
“Applicable Capital Reserve Amount” means, as of any date of determination, for each Dividend Period from January 1, 2013, through and including December 31, 2013, $3,000,000,000; and for each Dividend Period occurring within each 12-month period thereafter, $3,000,000,000 reduced by an equal amount for each such 12-month period through and including December 31, 2017, so that for each Dividend Period from January 1, 2018, the Applicable Capital Reserve Amount shall be zero.
2) 5.7. Mortgage Assets. Seller shall not own, as of any applicable date, Mortgage Assets in excess of (i) on December 31, 2012, $650 billion, or (ii) on December 31 of each year thereafter, 85.0% of the aggregate amount of Mortgage Assets that Seller was permitted to own as of December 31 of the immediately preceding calendar year; provided, that in no event shall Seller be required under this Section 5.7 to own less than $250 billion in Mortgage Assets.
https://www.fhfa.gov/Conservatorship/Documents/Senior-Preferred-Stock-Agree/2012-8-17_SPSPA_FannieMae_Amendment3_508.pdf
Then the problems of the SPSPA in
1367(a)(3)(I) is the same as the 12 U.S. Code §?4617(a)(3)(I) as can be found in: https://www.law.cornell.edu/cfr/text/17/246.8#:~:text=section%201367%20of%20the%20federal%20housing%20Enterprises%20Financial%20Safety%20and%20Soundness%20Act%20of%201992%20(12%20U.S.C.%204617)
It says:
Consent
The regulated entity, by resolution of its board of directors or its shareholders or members, consents to the appointment.
1367(a)(1) / 12 U.S. Code §?4617(a)(1)
(a)Appointment of the Agency as conservator or receiver
(1)In general
Notwithstanding any other provision of Federal or State law, the Director may appoint the Agency as conservator or receiver for a regulated entity in the manner provided under paragraph (2) or (4). All references to the conservator or receiver under this section are references to the Agency acting as conservator or receiver.
paragraph (2) Discretionary appointment
The Agency may, at the discretion of the Director, be appointed conservator or receiver for the purpose of reorganizing, rehabilitating, or winding up the affairs of a regulated entity.
paragraph (4) Mandatory receivership
(A)In general The Director shall appoint the Agency as receiver for a regulated entity if the Director determines, in writing, that—
So the BOD consented to the appointment of the Agency as conservator for purposes of Section “§?4617 (a)(3)(I) which is by “resolution of its board of directors it consents to the appointment.”
And because it had legal authority under “§?4617(a)(1) the Director may appoint the Agency as conservator” it did so, but none of the eleven reasons to enter into conservatorship occurred and besides that the BOD could never have agreed to conservatorship because “12 U.S. Code §?4617(a)(6)” contains The members of the board of directors of a regulated entity shall not be liable to the shareholders” but the purpose of a BOD is to protect shareholders, so without consideration it gave away its powers while being solvent, and that is a severe breach of fiduciary duties it has toward shareholders https://www.law.cornell.edu/wex/board_of_directors#:~:text=The%20board%20has%20a%20fiduciary%20duty%20to%20act%20in%20the%20best%20interest%20of%20the%20shareholders
The Consideration is a benefit which must be bargained for between the parties
The FHFA made a deal with treasury, but was this deal in the best interest on the companies? The companies were solvent and were put into conservatorship only because the FHFA claims it had the power under HERA to do so, not because the capital was at a critical level. The SPSPA looks like another piece of regulatory framework that FHFA put in place because it wanted to overhaul the housing finance system but needed more time to accomplish an overhaul, this view is also the way Treasury looked at it in on Aug 17, 2012 https://www.treasury.gov/press-center/press-releases/Pages/tg1684.aspx#:~:text=With%20today%E2%80%99s%20announcement,%2C%20we%20are%20taking%20the%20next%20step%20toward%20responsibly%20winding%20down%20Fannie%20Mae%20and%20Freddie%20Mac
Even more deceptive The treasury states on Aug 17, 2012:
“Retained Mortgage Investment Portfolios” “Those portfolios will now be wound down at an annual rate of 15 percent – an increase from the 10 percent annual reduction required in the previous agreements. As a result of this change, the GSEs’ investment portfolios must be reduced to the $250 billion target set in the previous agreements four years earlier than previously scheduled.”
https://www.treasury.gov/press-center/press-releases/Pages/tg1684.aspx
So now it is Treasuries job to downsize the companies not Congress(legislation) or FHFA (by regulation)? It is in the sole discretion of 1 government executive agency and 1 independent agency that soon will be an executive agency too, who agreed to act outside their statute of preserve and conserve, and it is wishful for this executive agency to wind down something without any input of congress or regulation?
Also on Aug 17, 2012 FHFA and Treasury agreed to a third amendment to the SPSPA, the circular draw is the reason they implemented this 3th amendment, but this is unveiled as incorrect by Susan McFarland and the documents containing these statements remain redacted for now, and this is strange as if it is true what the government claims, it will only contribute to their thesis
http://fanniefreddiesecrets.org/wp-content/uploads/2016/05/FM_Fairholme_CFC-00003075_Redacted.pdf
The 3th amendmend Also contains:
“for each Dividend Period from January 1, 2013, through and including
December 31, 2013, $3,000,000,000; and for each Dividend Period occurring within each
12-month period thereafter, $3,000,000,000 reduced by an equal amount for each such
12-month period through and including December 31, 2017, so that for each Dividend
Period from January 1, 2018, the Applicable Capital Reserve Amount shall be zero”
https://www.sec.gov/Archives/edgar/data/310522/000119312512359930/d399489dex41.htm#:~:text=the%20Applicable%20Capital%20Reserve%20Amount%20shall%20be%20zero
The “Capital Reserve Amount shall be zero”, this is not a typo, Treasury and FHFA agreed to let the capital go to ZERO, but the FHFA was established as independent agency who has only ONE mission: “FHFA is responsible for ensuring that Fannie Mae and Freddie Mac operate in a safe and sound manner. This is done through prudential supervision and regulation.” Yet is agreed to the 3th amendment https://www.fhfa.gov/SupervisionRegulation/FannieMaeandFreddieMac#:~:text=FHFA%20is%20responsible%20for%20ensuring%20that%20Fannie%20Mae%20and%20Freddie%20Mac%20operate%20in%20a%20safe%20and%20sound%20manner
Then the following problems can be identified:
1) the BOD mutual intent to be bound(3), and consideration(4) are doubtful as the BOD had no reason to enter into conservatorship, this is expressed in Sweeney’s court among lots of others as “A Hobson’s choice -- agree or you’re out.”
2) the FHFA claims in all lawsuits it is allowed to do so because HERA gave it the authority to do so, but is HERA Legal? can it operate outside the constitution or outside a conservatorship statute?, some plaintiffs identify unconstitutional problems of Hera as:
12 U.S.C. § 4511(a) There is established the Federal Housing Finance Agency, which shall be an independent agency of the Federal Government.
12 U.S.C. § 4512(b)(2) The Director shall be appointed for a term of 5 years, unless removed before the end of such term for cause by the President.
12 U.S.C. § 4617(a)(7) Agency not subject to any other Federal agency
When acting as conservator or receiver, the Agency shall not be subject to the direction or supervision of any other agency of the United States or any State in the exercise of the rights, powers, and privileges of the Agency.
12 U.S.C. § 4617(f) Clarification
No provision of law shall be construed as limiting the right or power of the Agency, or authorizing any court or agency to limit or delay in any manner, the right or power of the Agency to transfer any qualified financial contract in accordance with paragraphs (9) and (10), or to disaffirm or repudiate any such contract in accordance with subsection (d)(1).
12 U.S. Code §?4617(a)(6)
(a)Appointment of the Agency as conservator or receiver
(6)Directors not liable for acquiescing in appointment of conservator or receiver
The members of the board of directors of a regulated entity shall not be liable to the shareholders or creditors of the regulated entity for acquiescing in or consenting in good faith to the appointment of the Agency as conservator or receiver for that regulated entity.
12 U.S. Code §?4617 (J)(ii)
(J)Incidental powers The Agency may, as conservator or receiver—
(ii) take any action authorized by this section, which the Agency determines is in the best interests of the regulated entity or the Agency.
12 U.S. Code §?4516(f)(II)
(f)Treatment of assessments
(2)Not Government funds
The amounts received by the Director from any assessment under this section shall not be construed to be Government or public funds or appropriated money.
3) Then the FHFA claims under 1367(a)(3)(I) (12 U.S. Code §?4617(a)(3)(I) & 1367(a)(1) (12 U.S. Code §?4617(a)(1) is has the power to put into conservatorship, well yes, but what is the reason it did so, because now the BOD is in trouble, and because HERA contains 12 U.S. Code §?4617(a)(6) the board is not responsible, where did the fiduciary duty go?, fiduciary duties do not disappear, either way there must be someone responsible for shareholders, either FHFA or the BOD, upto now at least a mystery unsolved
4) Can Treasury demand thru the SPSPA agreement with FHFA a Retained Mortgage Investment Portfolios wind down, because this is supposed to be done by legislation and regulation, not in an temporary agreement that can be voided by the court(although HERA claims it cannot in 12 U.S.C. § 4617(f), it would be unconstitutional as it breaches the separation of powers principle per the founders of the constitution)
5) Can FHFA/Treasury demand a Zero capital per SPSPA as that would be winding down the companies(what Treasury admitted in link above) not rehabilitating them, but this is now last minute changed to 25B retained earnings for Fannie, but the FHFA also proposes a new capital rule of 243B(~145B Fannie/~98B Freddie) so why is it capping the capital to 25B/20B ? this is again against their statute(put in sound and solvent condition) and contrary to their just released capital rule, demand in one hand a large capital buffer, and forbid it on the other by the SPSPA, and of course the 25B (3B+22B) retained is not really retained as it is offset to the liquidation preference on which Fannie states following in their Q4 2019 results:
“the September 2019 letter agreement provides that, beginning on September 30, 2019, and at the end of each fiscal quarter thereafter, the liquidation preference shall be increased by an amount equal to the increase in our net worth, if any, during the immediately prior fiscal quarter, until such time as the liquidation preference has increased by $22 billion pursuant to this provision.”
https://www.fanniemae.com/resources/file/ir/pdf/quarterly-annual-results/2019/q42019.pdf
6) Consent decree: how would it be possible to exit an agreement thru consent decree if the law(courts) finds the FHFA is not legal, how could it legally be representing Fannie and Freddie and how can 12 U.S.C. § 4617(a)(5)(A) (authorizes the enter-prises to challenge FHFA’s within 30 days), while they on the other hand say 12 U.S.C. § 4617(a)(6) (The BOD shall not be liable to the shareholders) and all because of 12 U.S.C. § 4617(a)(2) (FHFA may be appointed conservator for reorganizing, rehabilitating) while they have proven to have done the exact opposite thing as putting in sound and solvent condition and preserving and conserving in the SPSPA, another mystery unsolved https://www.law.cornell.edu/wex/consent_decree#:~:text=A%20court%20order%20to%20which%20all%20parties%20have%20agreed.
7) Dilution of shares: so are the warrant and funding agreement legal? Taking all above into account, Can FHFA by statute give away 79.9% of the company without any compensation and consideration while it protects the BOD from lawsuits on breach of fiduciary duty 12 U.S.C. § 4617(a)(6) (The BOD shall not be liable to the shareholders) and then the BOD has no saying in this and all the fiduciary duties seem to have disappeared? as the SPSPA was written because of : §?4617(a)(3)(I) (by resolution of its board of directors or its shareholders or members, consents to the appointment.) that is not an agreement that is “agree or you’re out” like Sweeney stated, and also the “for cause” problem needs to be ruled on in favor of the government(which is unlikely given the precedent is Seila) otherwise it will be 2 executive agencies versus the companies
Then because of these actions, following lawsuits are filed in the courts:
1) 19-422 Patrick J Collins v. Mnuchin .… Common & Preferred, Derivative
2) 19-563 Mnuchin v. Patrick J Collins ……. Relates to all cases
3) 13-1025 Perry Capital LLC ……………… …… Common & Preferred, Derivative
4) 13-1053 Fairholme Fund, Inc……………..……Preferred, Direct & Derivative
5) 13-1288 In re Fannie Mae/Freddie Mac .…. Common & Preferred, Class Action, Direct & Derivative, Jury Demand
6) 13-1439 Arrowood Indemnity Company ……Preferred, Direct & Derivative
7) 16-3113 Patrick J Collins ……………………….…Common & Preferred, Derivative
8) 17-497 Rop……………………………………………….Common & Preferred, Derivative
9) 18-2506 Atif F. Bhatti …………………..……………Common & Preferred, Derivative
10) 18-3478 Wazee Street Opportunities ………Common, Class action, Derivative, Jury Demand
11) 2020-1912 & 14 Fairholme Funds, Inc.………..Common & Preferred, Direct & Derivative
12) 13-496C American European Insurance.…. Preferred, Class Action, Direct
13) 13-542C Francis J. Dennis ………………….…. Preferred
14) 13-385C Washington Federal ………………... Common & Preferred, Class Action, Direct
15) 13-608C Bryndon Fisher (FNMA) .........….. Common Derivative
16) 14-152C Bruce Reid (FMCC) …………………… Common Derivative
17) 13-672C Erick Shipmon……..…………………… Common Derivative
18) 20-2020 Arrowood Indemnity Company ….. Preferred Direct
19) 14-740C Louise Rafter .........…………………. Common Direct & Derivative
20) 20-2037 Joseph Cacciapalle ………..………… Preferred, Class Action, Direct
21) 20-1934 Owl Creek Asia I L.P...........………. Preferred, Direct
22) 20-1938 Akanthos Opportunity Master Fund .. Preferred, Direct
23) 20-1954 Appaloosa Investment .........……. Preferred, Direct
24) 20-1955 CSS LLC ……………………………………. Preferred, Direct
25) 20-1936 Mason Capital L.P...........………….. Preferred, Direct
26) 18-1124C Wazee Street……………….………… Common, Class Action, Direct & Derivative
27) 18-1150C Highfields Capital………………….. Common & Preferred, Direct
28) 18-711C 683 Capital Partners………..……….. Common, Preferred, Direct
29) 18-712C Joseph S. Patt………………………..… Preferred, Direct
30) 18-1226C Perry Capital LLC……………………. Common & Preferred, Direct & Derivative
31) 18-1155C CRS Master Fund LP…..…………… Preferred, Direct
32) 18-1240C Quinn Opportunities Master LP … Preferred, Direct
33) 20-737C Joshua J. Angel v United States Treasury ….. Preferred, Direct, Class action
In these lawsuits the government (FHFA and Treasury) keep defending it legal authority to enter into conservatorship and the SPSPA, but the only defending mechanisms it comes up with are based on HERA, while HERA is a problem in itself, and contains contradicting issues like:
12 U.S.C. § 4617(b)(15)(C)(i)-(ii) FHFA may not recover the value of the SPSPA if declared illegal
12 U.S.C. § 4617(i)(12) The reversal on appeal, does not affect the validity of any debt
While . § 4617 on the other hand states
12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
So on one hand they say the court cannot rule and on the other hand it finds if the court rules the funds cannot be returned
Then we move onto
12 U.S.C. § 4617(b)(2)(D) The Agency may put in sound and solvent condition
While on the other hand . § 4617 contains
12 U.S.C. § 4617(b)(2)(J)(ii) may act in the best interests of the regulated entity or FHFA
It surely cannot preserve and conserve if the FHFA can act in its own best interest, the word MAY in the above 2 are outside conservator statutes, and this is confirmed by treasury in:
https://www.treasury.gov/press-center/press-releases/Documents/fhfa_consrv_faq_090708hp1128.pdf
“The purpose of appointing the Conservator is to preserve and conserve the Company’s assets and property and to put the Company in a sound and solvent condition.”
So Treasury also recognizes the “May” word is not legal, or Treasury is misleading in its statements but I don’t think that is the case here, as common sense makes it really easy determine a conservator can never act in its own best interest because that is a taking of property that belongs to the owner and not the conservator
Then Why are the Fannie and Freddie not released from conservatorship?
The problems FHFA find themselves in are several, the Fannie and Freddie conservatorship started on the wrong basis, while other companies like City and AIG also received aid from treasury, the basic fundament was different, those companies were proven insolvent and could not have survived without aid from treasury, while Fannie and Freddie at the time of conservatorship were solvent, so the contract they entered into with AIG and City was legitimate, as the company otherwise could not have been saved, it is really hard to grasp for main stream that Fannie and Freddie “volunteered”/”Coerced” to be put into conservatorship, and why there is so much disinformation, as is not clearly visible at the surface, a lot will interpreted it as the same situation as City and AIG, but the main problem is, because Fannie and Freddie volunteered, the BOD had to agree out of free will, while if the company was undercapitalized it could have put the companies in mandatory conservatorship with the backup of 4617, but that is not what happened, but sure a lot of people see it that way https://www.sec.gov/Archives/edgar/data/310522/000129993308004619/exhibit1.htm
Now the BOD represents the shareholders https://www.law.cornell.edu/wex/board_of_directors
The given fiduciary duties to shareholders, was passed on to the FHFA, but the FHFA says it can only act out of the best interest for the companies and ITSELF, but the companies did not need any money(proven regulatory) as they just completed a new round of fund raising, only after conservatorship started the problems started due to the FHFA actions, but before the companies were in trouble the FHFA already gave away 79.9% of the companies without consideration, no matter how big the problem was, the FHFA as regulator cannot act contrary to the wishes of the BOD voluntary agreement, with the backup of 4617 the BOD cannot be sued, it just doesn’t work that way. on August 22, 2008, just two weeks before the conservatorships were imposed, the FHFA sent letters to both Fannie Mae and Freddie Mac stating that the Companies were adequately capitalized. and analysis by BlackRock issued on August 25, 2008 concluded that Freddie Mac’s “long-term solvency does not appear endangered .. . even in stress case.”
Then the timeline is :
August 22, 2008 FHFA finds Fannie and Freddie adequately capitalized
August 25, 2008 Blackrock finds Fannie and Freddie adequately capitalized even in stress case
Sept 6, 2008 BOD had a Duly called meeting and agreed to conservatorship
Sept,7, 2008 FHFA enters into conservatorship and SPSPA
11 days after Blackrock and 14 days after FHFA finds the companies adequately capitalized they are put into conservatorship and none of the legal criteria to put them into conservatorship are met
https://gselinks.com/wp-content/uploads/2019/07/13-385-0077.pdf
Now in order to proof the government is right it keeps defending the circular draw principle and hides behind a 4617
12 U.S. Code §?4617(a)(6)
(a)Appointment of the Agency as conservator or receiver
(6)Directors not liable for acquiescing in appointment of conservator or receiver
The members of the board of directors of a regulated entity shall not be liable to the shareholders or creditors of the regulated entity for acquiescing in or consenting in good faith to the appointment of the Agency as conservator or receiver for that regulated entity.
https://www.law.cornell.edu/uscode/text/12/4617
Conclusion:
The FHFA made a deal with Fannie and Freddie because HERA gave the right to FHFA to do so, however none of the reasons HERA allowed FHFA to enter into conservatorship were met, and the legal terms of the implied-in-fact contract might be conflicting as Fannie and Freddie boards would breach it fiduciary duty towards shareholders and the companies, so 3) mutual intent to be bound, and 4) consideration, are to date missing, then a day later the FHFA agreed with treasury to enter into the SPSPA contract, but this contract limits the companies in operating, something a conservator cannot do especially since Fannie and Freddie were solvent at the time of conservatorship started, congress can change this by legislation, the FHFA can change this by regulation, but the FHFA-C cannot, it only can act on the powers given to the conservator and not receivership powers to wind down the company or restrict the business in any way, it only can “conserve and preserve” and put in “sound and solvent condition” that is not what the SPSPA does, it limits the companies
Then in the SPSPA they give the reason to enter into this SPSPA as being 1367(a)(3)(I)
“(I)Consent, The regulated entity, by resolution of its board of directors or its shareholders or members, consents to the appointment.”
This is not near consent, in order to establish consent you need “willfully agreeing” not an “action”, and because you have this “action”, there is consent, this is the other way around, as actions could also could be coerced, the only thru meaning of consent lays in voluntary/”willfully agreeing” to something https://www.law.cornell.edu/wex/consent#:~:text=voluntarily%20and%20willfully%20agrees%20to%20undertake%20an%20action%20, so the reason on (3) mutual intent to be bound) is missing
The 3th amendment is illegal in the bigger picture of things, as a conservator cannot do this to the conservatee
Then we have
- Collins ruling in SCOTUS (Seila as precedent and possibly California v. Texas)
- Sisti is settling before Oct 30, 2020 (if no extended time is needed)
- Interlocutory appeal in the United States Court of Appeals for the Federal Circuit
- Sweeney ruling in the court of federal claims
- Lamberth Ruling in the district court
- Patrick Joseph Schiltz ruling in Bhatti District Court, D. Minnesota
- Capital rule set by FHFA, most think the rule is way too high
- Presidential election Tuesday, November 3, 2020
Usefull links:
On Sept 7, 2008 FHFA and Treasury consented to the Senior Preferred Stock Purchase Agreements (SPSPAs) https://www.sec.gov/Archives/edgar/data/310522/000129993308004619/exhibit1.htm
FHFA what happened: https://www.fhfa.gov/Conservatorship/Pages/Senior-Preferred-Stock-Purchase-Agreements.aspx
The FHFA is responsible for ensuring that Fannie Mae and Freddie Mac operate in a safe and sound manner https://www.fhfa.gov/SupervisionRegulation/FannieMaeandFreddieMac
Quote Sweeny:
“MR. LAUFGRABEN: Hopefully, we can keep this point relatively brief”
21 THE COURT: Oh, am I mistaken that members of
22 the board were not told that you either agree to the
23 conservatorship or you’ll be fired? Am I mistaken?
(document no longer online, it is available behind a paywall as document 465??? https://www.docketbird.com/court-cases/FAIRHOLME-FUNDS-INC-et-al-v-USA/cofc-1:2013-cv-00465)
Contract:
https://www.law.cornell.edu/wex/contract
Contract Implied in Fact
https://www.law.cornell.edu/wex/contract_implied_in_fact
Section 1367 of the FHE Act = Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4617)https://www.law.cornell.edu/cfr/text/17/246.8
The Constitution:
https://www.law.cornell.edu/constitution-conan
Fannie Mae & Freddie Mac conservator Litigation, FNMA, FMCC updated Aug 24, 2020
1) 19-422 Patrick J Collins v. Mnuchin .… Common & Preferred, Derivative
2) 19-563 Mnuchin v. Patrick J Collins ……. Relates to all cases
COURT: SUPREME COURT of the United States
Judges: Roberts, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh
https://www.scotusblog.com/case-files/cases/collins-v-mnuchin/
https://www.scotusblog.com/case-files/cases/mnuchin-v-collins/
Above 2 cases are consolidated, the related 3 cases are :
- 17-497 Rop v. Federal Housing Finance agency ……. Common & Preferred, Derivative
- 18-2506 Atif F. Bhatti vs. FHFA ………………………… Common & Preferred, Derivative
- 18-3478 Wazee Street Opportunities v. USA …… Common, Class action, Derivative
Collins Claim:
(1) Whether FHFA’s structure violates the separation of powers; and
(2) Whether the courts must set aside a final agency action that FHFA took when it was unconstitutionally structured and strike down the statutory provisions that make FHFA independent.
Collins identified the FHFA breached following statutory provisions by its actions:
a) 5 U.S.C. § 706(2)(C) hold unlawful and set aside agency action, findings, and conclusions found to be—in excess of statutory jurisdiction, authority, or limitations, or short of statutory right
b) 5 U.S.C. § 706(2)(A) hold unlawful and set aside agency action, findings, and conclusions found to be— arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law
And found following U.S. Codes have issues because of the actions FHFA have taken
c) 44 U.S.C. § 3502 (5) Term “independent agency” means the Board of Governors of the FHFA
d) 12 U.S.C. § 4511(a) Establishment
e) 12 U.S.C. § 4512(b)(2) Term (5th circuit found it violates the separation of powers)
f) 12 U.S.C. § 4516(f)(2) Not Government funds
g) 12 U.S.C. § 4617(a) HERA empowered FHFA to appoint itself as the conservator
h) 12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
i) 12 U.S.C. § 4617(b)(2)(A)(i) ncidental powers (succession clause)
http://www.supremecourt.gov/DocketPDF/19/19-422/116983/20190925131502103_Collins%20Petition--PDFA.pdf
Mnuchin claims:
(1) Whether the statute’s anti-injunction clause, which precludes courts from taking any action that would “restrain or affect the exercise of powers or functions of the Agency as a conservator,” 12 U.S.C. 4617(f), precludes a federal court from setting aside the Third Amendment.
(2) Whether the statute’s succession clause—under which FHFA, as conservator, inherits the shareholders’ rights to bring derivative actions on behalf of the enterprises—precludes the shareholders from challenging the Third Amendment.
According to the Government it has following U.S. Codes that allowed them to implement the NWS
a) 12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
b) 12 U.S.C. § 4617(b)(2)(A)(i) Incidental powers (succession clause)
c) 12 U.S.C. § 4617(b)(2)(B) Operate the regulated entity
d) 12 U.S.C. § 4617(b)(2)(D) put in sound and solvent condition; and carry on the business
e) 12 U.S.C. § 4617 Authority over critically undercapitalized regulated entities
July 9, 2020 The U.S. Supreme Court granted the Collins Plaintiffs’ and the government’s petitions to review the Fifth Circuit’s decision that state, APA claims are barred by 12 U.S.C. § 4617(f), and REMAND declaring the “for cause” 12 U.S.C. § 4512(b)(2) violates the Constitution’s separation-of-powers principles.
3) (13-1025) (1:13-cv-01025-RCL), 14-5243)
Perry Capital LLC v. Jacob Lew …… Common & Preferred, Derivative
CLAIM: Derivative APA, 3th amendment
District Court, District of Columbia
Judge: Royce C. Lamberth
https://www.courtlistener.com/docket/4212073/perry-capital-llc-v-lew/
https://www.courtlistener.com/docket/3054444/perry-capital-llc-v-jacob-lew/
Court of Appeals for the D.C. Circuit
On appeal before Judge: Brown, Millett, Ginsburg
Consolidated with:
1:13-cv-01053, 14-5254(Fairholme)
1:13-cv-01439, 14-5260 (Arrowood),
1:13-cv-01288, 14-5262 (In re: Fannie Mae/Freddie Mac Senior)
Feb 21, 2017 following claims are remanded to the district court for further proceedings.
a) breach of contract and breach of the implied covenant of good faith and fair dealing regarding liquidation preferences
b) and the claim for breach of the implied covenant with respect to dividend rights, which claims we remand (to Lamberth) for further proceedings consistent with this opinion
c) it also found We hold that the stockholders’ statutory claims are barred by the Recovery Act’s strict limitation on judicial review. See 12 U.S.C. § 4617(f).
d) claims against FHFA and the Companies, some are barred because FHFA succeeded to all rights, powers, and privileges of the stockholders under the Recovery Act, id. § 4617(b)(2)(A)
https://www.govinfo.gov/content/pkg/USCOURTS-caDC-14-05243/pdf/USCOURTS-caDC-14-05243-1.pdf
July 1, 2020 complete fact discovery by January 22, 2021, trial date is set May 16, 2022
4) 13-1053 (14-5254) (1:13-cv-01053)
Fairholme Fund, Inc. v. FHFA……Preferred, Direct & Derivative
Honorable: Royce C. Lamberth
Claim: 3th amendment, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing
District Court for the District of Columbia
https://www.courtlistener.com/docket/4212077/fairholme-funds-inc-v-federal-housing-finance-agency/
July 12, 2019 Request For Production of documents (RFP) Treasury should produce (page 39-46)
https://gselinks.com/wp-content/uploads/2019/07/13-cv-01053-103.pdf
Nov 18, 2019 RFPs 1-8, 10-14, 15(a)-(d), 16-26, and 29-30. Granted, Treasury should produce these documents
https://www.courtlistener.com/recap/gov.uscourts.dcd.160910/gov.uscourts.dcd.160910.112.0.pdf
July 1, 2020 complete fact discovery by January 22, 2021, trial date is set May 16, 2022
5) 13-1288 (1:13-mc-01288)
In re Fannie Mae/Freddie Mac Senior Preferred Stock Purchase Agreement
Class Action Litigations …. Common & Preferred, Class Action, Direct & Derivative, Trial by Jury
Honorable: Royce C. Lamberth
District Court for the District of Columbia
Direct claim, breaches of contract, breaches of the implied
covenant of good faith and fair dealing, breaches of fiduciary duties,
and violations of Delaware and Virginia law governing dividends
If the Direct claims are denied it also claims these Derivative: breaches of fiduciary duty, compensatory damages and disgorgement, breached the terms of the certificates of designation and the implied covenant of good faith and fair dealing, appropriate equitable and injunctive relief to remedy breaches of contract, breaches of the implied covenant of good faith and fair dealing, breaches of fiduciary duty, and violations of Delaware and Virginia Corporate law, including rescission of the Third Amendment. https://www.courtlistener.com/recap/gov.uscourts.dcd.163155/gov.uscourts.dcd.163155.71.0.pdf
https://www.courtlistener.com/docket/4212341/in-re-fannie-maefreddie-mac-senior-preferred-stock-purchase-agreement/
The Class:
6) N. Bradford Isbell ....... Common
7) Michelle M. Miller ...... Common
8) Charles Rattley ………… Common
9) Timothy J. Cassell ...... Common
10) 111 John Realty Corp… Preferred
11) United Equities Commodities Com ….. Preferred
12) 1:13-cv-01149 Joseph Cacciapalle ..... Preferred
13) 1:13-cv-01421 Marneu Holdings, Co .. Preferred
14) 1:13-cv-01169 American European Insurance Co ... Preferred
15) 1:13-cv-01443 Barry P. Borodkin ....... Preferred
16) 1:13-cv-01094 Mary Meiya Liao ....... Preferred
July 1, 2020 complete fact discovery by January 22, 2021, trial date is set May 16, 2022
17) 13-1439 (1:13-cv-01439)
Arrowood Indemnity Company v. Fannie Mae……Preferred, Direct & Derivative
Honorable: Royce C. Lamberth
Claim: 3th amendment, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing
District Court for the District of Columbia
https://www.courtlistener.com/docket/6995674/arrowood-indemnity-company-v-federal-national-mortgage-association/
July 1, 2020 complete fact discovery by January 22, 2021, trial date is set May 16, 2022
18) 16-3113 (4:16-cv-03113)( 17-20364)
Patrick J Collins v. Lew …………………….…Common & Preferred, Derivative
Honorable: Judge Nancy F Atlas
District Court, S.D. Texas
Claim: “for cause” separation of powers §?4512(b)(2)
1) are not in accordance with and violate HERA within the meaning of 5 U.S.C. § 706(2)(C)
2) that Treasury acted arbitrarily and capriciously within the meaning of 5 U.S.C. § 706(2)(A)
3) by executing the Net Worth Sweep, and that FHFA’s structure violates the separation of powers
https://www.courtlistener.com/docket/4533994/collins-v-lew/
Court of Appeals for the Fifth Circuit:
Before Judge Stewart, Haynes and Willett
https://www.courtlistener.com/docket/6179579/patrick-collins-v-steven-mnuchin-secretary/
July 16, 2018 Conclusion 5th circuit:
We AFFIRM the district court’s order granting the Agencies’ motions to dismiss the Shareholders’ APA claims because such claims are barred by 12 U.S.C. § 4617(f).(no court may take any action)
We REVERSE the district court’s order granting the Agencies’ motion for summary judgment regarding the Shareholders’ claim that the FHFA is unconstitutionally structured in violation of Article II and the Constitution’s separation of powers, and we REMAND to the district court with instructions to enter judgment declaring the “for cause” limitation on removal of the FHFA’s Director found in 12 U.S.C. § 4512(b)(2) violates the Constitution’s separation-of-powers principles.
The 5th circuit remanded this back to Judge Nancy F Atlas in District Court, S.D. Texas
http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV0.pdf
https://www.courtlistener.com/pdf/2018/07/16/patrick_collins_v._steven_mnuchin_secretar.pdf
Sept 25, 2019 Petition filed in SCOTUS
19) 17-497 (1:17-cv-00497)
Rop v. Federal Housing Finance agency…….Common & Preferred, Derivative
Honorable: Paul L. Maloney
District Court, W.D. Michigan
Claim: voiding 3th amendment & “for cause” and striking down HERA’s:
12 U.S.C. § 4511(a) Establishment
12 U.S.C. § 4512(b)(2) Term (5th circuit found it violates the separation of powers)
12 U.S.C. § 4617(a)(7) Agency not subject to any other Federal agency
https://www.courtlistener.com/docket/13521280/rop-v-federal-housing-finance-agency/
Sept 27, 2019 Notice of supplemental authority concerning Collins v. Mnuchin
http://www.glenbradford.com/wp-content/uploads/2019/09/17-cv-00497-0064.pdf
July 14, 2020 FHFA advises count I and Count II in Collins are identical to the Rop lawsuit
Count I Rop: Violation of the President’s Constitutional Removal Authority Against FHFA as Both Regulator and Conservator and Treasury
Count II Rop: Violation of the Separation of Powers Against FHFA as Both Regulator and Conservator and Treasury
20) 18-2506 (17-2185) (0:17-cv-02185)
Atif F. Bhatti vs. FHFA……………Common & Preferred, Derivative
Honorable: Patrick Joseph Schiltz
District Court, D. Minnesota
Claim: 3th amendment & “for cause” striking down Hera’s provisions:
12 U.S.C. § 4511(a) Establishment
12 U.S.C. § 4512(b)(2) Term (5th circuit found it violates the separation of powers)
12 U.S.C. § 4617(a)(7) Agency not subject to any other Federal agency
12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
https://www.courtlistener.com/docket/7379258/bhatti-v-federal-housing-finance-agency-the/
October 15, 2019 Oral arguments On appeal in the 8th circuit, The court strives to issue the opinion within 90 days after oral Argument
July 14, 2020 Bhatti advices the court it can no longer be credibly argued that FHFA’s structure is
constitutional.
21) 18-3478 (2:18-cv-03478)(2:18-cv-03478-NIQA)
Wazee Street Opportunities v. United States………Common, Class action, Derivative, Jury Demand
Honorable: Nitza I Quinones Alejandro
District Court, E.D. Pennsylvania
Claim: 3th amendment & “for cause” striking down Hera’s provisions:
12 U.S.C. § 4511(a) Establishment
12 U.S.C. § 4512(b)(2) Term (5th circuit found it violates the separation of powers)
12 U.S.C. § 4617(a)(7) Agency not subject to any other Federal agency
12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
https://www.courtlistener.com/docket/7681282/wazee-street-opportunities-fund-iv-lp-v-the-federal-housing-finance-agency/
Oct 3, 2019 Waiting on Collins, document 38 Supplemental authority filed by Defendant ….. in the matter of Collins v. Mnuchin, No. 17-20364, now 19-422 / 19-563)
July 15, 2020 FHFA advices Counts I and II Wazee are identical to the separation of powers in Collins
Counts I Wazee: Violation Of The President's Constitutional Removal Authority Against FHFA, As Regulator And Conservator, And Treasury
Counts II Wazee: Violation Of The Separation Of Powers Against FHFA, As Regulator And Conservator, And Treasury
http://www.glenbradford.com/wp-content/uploads/2020/07/18-cv-03478-0042.pdf
https://gselinks.com/wp-content/uploads/2018/08/18-cv-03478-0001-Complaint-8-20-18.pdf
July 20, 2020 judge Alejandro advices it keeps on staying after 9 months ~Until - Set/Clear Flags AND Suspense Order
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Cases in the U.S. Court of Federal Claims (Sweeney)
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22) 20-1912 (20-121) (20-122) (2020-121)(2020-122) (13-465C) (1:13-cv-00465) (17-1122)(17-104)
Fairholme Funds, Inc. v. United States………..Common & Preferred, Direct & Derivative
Honorable: Margaret M. Sweeney
United States Court of Federal Claims
https://www.courtlistener.com/docket/4198608/fairholme-funds-inc-v-united-states/
Claim: **SEALED** 413 AMENDED COMPLAINT (Entered: 03/08/2018)
Redacted version without coercion attacks available at:
https://www.docketbird.com/court-documents/Fairholme-Funds-Inc-et-al-v-USA/REDACTED-DOCUMENT-filed-by-ACADIA-INSURANCE-COMPANY-ADMIRAL-INDEMNITY-COMPANY-ADMIRAL-INSURANCE-COMPANY-ANDREW-T-BARRETT-BERKLEY-INSURANCE-COMPANY-BERKLEY-REGIONAL-INSURANCE-COMPANY-CAROLINA-CASUALTY-INSURANCE-COMPANY-CONTINENTAL-WESTERN-INSURANCE-CO/cofc-1:2013-cv-00465-00422
March 9, 2020 the interlocutory appeal was granted the
CFC identified six “controlling questions of law” raised by its order, the first three of
which pertain to the CFC’s decision to dismiss Petitioners’ direct claims:
(1) Whether the court lacks subject-matter jurisdiction over plaintiffs’ direct
claims for breach of fiduciary duty and breach of implied-in-fact contracts.
(2) Whether plaintiffs who purchased stock in Fannie and Freddie after the
PSPA amendments lack standing to pursue their direct claims.
(3) Whether plaintiffs lack standing to pursue their self-styled direct claims
because those claims are substantively derivative in nature.
The last three controlling questions identified by the CFC related to its decision
to deny the motion to dismiss Petitioners’ derivative claims:
(4) Whether plaintiffs have standing to assert derivative claims notwithstanding HERA’s succession clause. (Fairholme & Fisher)
(5) Whether the [FHFA-as-conservator’s] actions are attributable to the United States such that the court possesses subject-matter jurisdiction to entertain plaintiffs’ derivative takings and illegal exaction claims. (Fairholme & Fisher)
(6) Whether plaintiffs’ allegations that the FHFA entered into an implied-in-fact contract with the Enterprises to operate the conservatorships for shareholder benefit fail as a matter of law.
http://www.glenbradford.com/wp-content/uploads/2020/03/20-121-0002.pdf
June 18, 2020 IT IS ORDERED THAT:
(1) The petitions are granted. This case is transferred to the regular docket. The appeals will be consolidated. Fairholme’s appeal will be designated as the lead appeal, and the government’s appeal will be designated as a cross-appeal. Fairholme’s opening brief is due within 60 days of the date of filing of this order (Aug 18, 2020)
(2) Owl Creek’s motion is granted to the extent that the amicus brief is accepted for filing. Any request for fur-ther relief from the court should be made after docketing.
July 31, 2020 - The United States respectfully requests that this Court hold this appeal and
cross-appeal and several companion appeals in abeyance until the Supreme Court
issues its decision in Mnuchin v. Collins, No. 19-563, and Collins v. Mnuchin, No. 19-422
(collectively, Collins)
Aug 5, 2020 ORDER Upon consideration of the appellants’ unopposed mo-tion to extend by 36 days, to September 22, 2020, the time to file their opening brief,
Aug 10, 2020 Fairholme Plaintiffs take no position on the Government’s motion to hold the appeals in abeyance
The following List Of Fannie Mae and Freddie Mac Shareholder Suits are Pending
23) 13-496C American European Insurance.…. Preferred, Class Action, Direct
https://www.courtlistener.com/docket/4198611/american-european-insurance-company-v-united-states/
24) 13-542C Francis J. Dennis ………………….…. Preferred
March 27, 2020 above 3 Plaintiff’s think none of their counts should be dismissed
25) 13-385C Washington Federal v. United States . Common & Preferred, Class Action, Direct*
https://www.courtlistener.com/docket/4198605/washington-federal-v-united-states/
April 2, 2020 Plaintiff argues None of the claims in Fairholme apply to their case
April 16, 2020 the government thinks:
A) Fannie Mae And Freddie Mac Shareholders Lack Standing To Assert Substantively-Derivative Claims As Direct Claims
B) The Court Lacks Jurisdiction To Review The Merits Of The Enterprises’ Placement In Conservatorship
C) The Washington Federal Plaintiffs May Not Pursue Derivative Claims
July 9, 2020 The court must dismiss plaintiffs’ claims for lack of standing, If plaintiffs had asserted derivative claims in their amended complaint, the “conflict of interest” holding in First Hartford would have aided plaintiffs in their quest to establish standing. But they did not do so
opinion and order:
https://www.courtlistener.com/recap/gov.uscourts.uscfc.28070/gov.uscourts.cofc.28070.100.0.pdf
Aug 24, 2020 - CAFC Case Number
26) 13-608C Bryndon Fisher (FNMA) .........….. Common Derivative*
https://www.courtlistener.com/docket/4198614/fisher-v-united-states/
June 11, 2020 interlocutory appeal process Granted on following
(1) Whether plaintiffs have standing to assert derivative claims notwithstanding HERA’s succession clause. (Question 4 in Fairholme)
(2) Whether the FHFA-C’s actions are attributable to the United States such that the court possesses subject-matter jurisdiction to entertain plaintiffs’ derivative takings and illegal exaction claims. (Question 5 in Fairholme)
27) 14-152C Bruce Reid (FMCC) …………………… Common Derivative*
https://www.courtlistener.com/docket/7737030/reid-v-united-states/
May 18, 2020 Fisher/Reid file motion to certify interlocutory appeal
June 4, 2020 Fairholme plaintiffs’ amicus brief in support of neither party
June 25, 2020 Plaintiffs delivered their petition to the Federal Circuit asking to pursue interlocutory appeal
28) 13-672C Erick Shipmon……..…………………… Common Derivative
https://www.courtlistener.com/docket/4198615/shipmon-v-united-states/
March 27, 2020 above 3 Plaintiff’s think their claim is substantially the same as Fairholme’s
April 7, 2020 TRANSCRIPT of proceedings held on March 5, 2020 before Chief Judge Margaret M. Sweeney. Total No. of Pages: 1-77. Release of Transcript Restriction set for 7/6/2020.
29) 20-2020 (13-698C) Arrowood Indemnity Company ….. Preferred Direct*
https://www.courtlistener.com/docket/17277778/arrowood-indemnity-company-v-united-states/
April 6, 2020 Plaintiff’s think none of the Fairholme counts apply to their case
May 15, 2020 the court dismisses plaintiffs’ claims because it lacks jurisdiction to entertain their fiduciary duty and implied-in-fact-contract claims, and plaintiffs lack standing to pursue any of their claims. The court therefore GRANTS defendant’s motion to dismiss. https://www.courtlistener.com/recap/gov.uscourts.uscfc.28858/gov.uscourts.cofc.28858.69.0_1.pdf
Appeal filed in U.S. Court of Appeals, Federal Circuit
July 22, 2020 Filing 1 Appeal docketed. Received: 06/29/2020. [709375] Entry of Appearance is due 08/05/2020. Certificate of Interest is due on 08/05/2020. Docketing Statement is due 08/21/2020. Appellant's brief is due 09/21/2020. [JAL] [Entered: 07/22/2020 04:26 PM] https://dockets.justia.com/docket/circuit-courts/cafc/20-2020
30) 14-740C Louise Rafter .........…………………. Common Direct & Derivative*
https://gselinks.com/Court_Filings/Rafter/14-740-0027.pdf
March 31, 2020 plaintiff continue to stay until 21 days following resolution of Fairholme
31) 20-2037 (13-466C) Joseph Cacciapalle ………..………… Preferred, Class Action, Direct*
Class: Melvin Bareiss, Bryndon Fisher, Bruce Reid, Erick Shipmon,
American European Insurance Company, Francis J. Dennis,
32) 20-1934 (18-281C) Owl Creek Asia I L.P...........………. Preferred, Direct *
33) 20-1938 (18-369C) Akanthos Opportunity Master Fund .. Preferred, Direct *
34) 20-1954 (18-370C) Appaloosa Investment .........……. Preferred, Direct *
35) 20-1955 (18-371C) CSS LLC ……………………………………. Preferred, Direct *
36) 20-1936 (18-529C) Mason Capital L.P...........………….. Preferred, Direct *
https://www.courtlistener.com/docket/4198610/cacciapalle-v-united-states/
July 17, 2020 hereby appeals to the United States Court of Appeals for the Federal Circuit from the Opinion and Order [ECF No. 105] and Judgment [ECF No. 106]
June 26, 2020 The court lacks jurisdiction to entertain plaintiffs’ judicial takings claim and their fiduciary duty claim. Further, plaintiffs lack standing to bring their contract claims due to the absence of privity (relation between two parties that is recognized by law) with the United States, and lack standing to bring their nominally direct takings, illegal-exaction, and fiduciary duty claims because the nature of these claims is derivative, not direct. The court therefore GRANTS defendant’s motion to dismiss
https://www.courtlistener.com/recap/gov.uscourts.uscfc.28232/gov.uscourts.cofc.28232.105.0.pdf
March 26, 2020 above 5 plaintiffs don’t want to give up the direct claims and doubt the counts in Fairholme properly represent their counts, and point out the law was breached
June 8, 2020 the court DISMISSES plaintiff’s complaint because the court lacks jurisdiction to entertain its fiduciary duty and implied-in-fact-contract claims, and plaintiff lacks standing to pursue any of its claims. https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2018cv0369-60-0
June 8, 2020 again a very damaging ruling for the government but still the case is dismissed as: (FHFA can) “take any action authorized by [12 U.S.C. § 4617(b)),
which (it) determines is in the best interest of the (Enterprise) or the (FHFA)(Itself) .”
http://www.glenbradford.com/wp-content/uploads/2020/06/18-00281-0064.pdf
U.S. Court of Appeals, Federal Circuit
July 28, 2020 assigned case No. 20-2037 to the proceeding, and set Sept. 22, 2020, as the deadline to file its opening brief
Aug 10, 2020 Plaintiffs’ Combined Opposition To Motion To Hold Appeals In Abeyance:
“There is no just basis for delaying them any further”
37) 18-1124C Wazee Street……………….………… Common, Class Action, Direct & Derivative
38) 18-1150C Highfields Capital………………….. Common & Preferred, Direct
https://www.pacermonitor.com/public/case/25303845/HIGHFIELDS_CAPITAL_I_LP_et_al_v_USA Related To: Fairholme, Arrowood, Cacciapalle, 13-469, Dennis, Wazee Street, Fisher, Shipmon, Reid, Rafter, Owl Creek, Appaloosa, Akanthos, Css, Mason, 683 Cap. Partners, Patt
39) 18-711C 683 Capital Partners………..……….. Common, Preferred, Direct
40) 18-712C Joseph S. Patt………………………..… Preferred, Direct
41) 18-1226C Perry Capital LLC……………………. Common & Preferred, Direct & Derivative
42) 18-1155C CRS Master Fund LP…..…………… Preferred, Direct
Above 6 Plaintiffs are staying
43) 18-1240C Quinn Opportunities Master LP … Preferred, Direct
Aug 24, 2020 - Status unknown
44) 20-737C Joshua J. Angel v United States Treasury ….. Preferred, Direct, Class action
June 8, 2020 complaint filed, prayer for relief: Award $16 billion in compensatory damages to the Class against Treasury; C, Award prejudgment and post-judgment interest on those compensatory damages
Aug 18, 2020 Defendant’s Motion To Dismiss Pro Se Complaint: the Court should dismiss Mr. Angel’s complaint for lack of subject matter jurisdiction or, in the alternative, for failure to state claims upon which relief can be granted.
* Jones Days plaintiffs
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Cases below are dismissed without ruling on merit
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45) 19-7062 (1:18-cv-01142) (18-1142)
Joshua J. Angel v. BOD of FNMA,FMCC & FHFA-C ….….Preferred, Direct
Previously assigned to: Honorable: Royce C. Lamberth
https://www.courtlistener.com/docket/6880882/angel-v-federal-home-loan-mortgage-corporation/
Claim: Breach of quarterly BOD duties, breach of contract, breached the implied covenant of good faith and fair dealing, breach of contractual rights for dividends, Breach of implicit guaranty on Junior Preferred dividends
District Court for the District of Columbia
https://www.courtlistener.com/docket/26534/joshua-angel-v-federal-home-loan-mortgage-co/
On appeal Judges Henderson, Griffith and Wilkins decided Mr. Angel’s appeal without oral argument
They decided april 24, 2020: “We affirm. The district court properly dismissed Angel’s initial complaint as time-barred.” “ ORDERED and ADJUDGED that the decision of the district court be AFFIRMED”
CASE LOST ON: STATUTE OF LIMITATIONS
http://www.glenbradford.com/wp-content/uploads/2020/04/19-7062-1839674.pdf
46) Arnetia Robinson v. Fed. Housing Fin. Agency (6th Cir. 2017)
(15-109, 7:15-cv-00109, 7:15-cv-109, 16-6680 )
CLAIM: Derivative, APA 3th amendment
District Court, E.D. Kentucky
Judge: Karen K. Caldwell
https://www.courtlistener.com/docket/4510286/robinson-v-federal-housing-finance-agency/ ??
On appeal before judge: Batchelder, Gibbons, and Cook
https://www.courtlistener.com/opinion/4445969/arnetia-robinson-v-fed-housing-fin-agency/
CASE LOST ON: HERA (“Congress is the proper governmental body to address poor legislative decisions” )
https://www.courtlistener.com/opinion/4445969/arnetia-robinson-v-fed-housing-fin-agency/
47) David J. Voacolo V. Federal National Mortgage Association (D.N.J. 2017)
(1:16-cv-01324)(16-1324)(17-5667)
https://www.courtlistener.com/docket/4214876/voacolo-v-federal-national-mortgage-association-fannie-mae/
District Court, D. New Jersey,
CLAIM: Derivative & Direct, APA 3th amendment, Damages (shares would have value of $35.- as of Aug-2017) https://gselinks.com/Court_Filings/Voacolo2/17-cv-05667-0001.pdf
Judge: Rudolph Contreras
On appeal https://www.courtlistener.com/docket/6354770/voacolo-v-fannie-mae/
Judge: Brian R. Martinotti
CASE LOST ON: Voacolo’s failure to oppose the motion
https://gselinks.com/Court_Filings/Voacolo2/17-cv-05667-0020.pdf
48) Saxton v. Federal Housing Finance Agency (N.D. Iowa 2015)
(15-0047) (1:15-cv-00047)(17-1727)
CLAIM: Derivative & Direct, APA 3th amendment, Damages
District Court, N.D. Iowa
Judge: Linda R. Reade
https://www.courtlistener.com/docket/5391361/saxton-v-federal-housing-finance-agency/
On appeal before judge: Benton, Kelly, and Stras
CASE LOST ON: HERA (A troublesome verdict for the government “12 U.S.C. § 4617(b)(2)(J)(ii)
(emphasis added). That is no typo” ” Congress, intentionally or otherwise, may have created a MONSTER by handing an agency breathtakingly broad powers and insulating the exercise of those powers from judicial review”) (the 5th circuit en banc decision conflicts this ruling)
12 U.S.C. § 4617(b)(2)(J)(ii) take any action authorized by this section, which the Agency determines is in the best interests of the regulated entity or the Agency(FHFA).
https://cases.justia.com/federal/appellate-courts/ca8/17-1727/17-1727-2018-08-23.pdf?ts=1535038225)
49) Jacobs v. Federal Housing Finance Agency (D. Del. 2015)
(1:15-cv-00708)(15-708)(17-3794)
CLAIM: Derivative & Direct, 3th amendment, Damages
District Court, D. Delaware
Judge: Gregory Moneta Sleet
https://www.courtlistener.com/docket/4220900/jacobs-v-federal-housing-finance-agency/
https://www.courtlistener.com/docket/7297926/david-jacobs-v-federal-housing-finance-agency/
On appeal Before judge: Hardiman, Krause, and Bibas
CASE LOST ON: HERA
http://www.glenbradford.com/wp-content/uploads/2018/11/17-3794-0033.pdf
50) Continental Western Insurance Company v. FHFA (District Court, S.D. Iowa, 2014)
(14-42)( 4:14-cv-00042)
CLAIM: Derivative & Direct, APA 3th amendment, Damages
Judge: Robert W. Pratt
District Court, S.D. Iowa
https://www.courtlistener.com/docket/4247079/continental-western-insurance-company-v-the-federal-housing-finance-agency/
CASE LOST ON: HERA
https://www.courtlistener.com/recap/gov.uscourts.iasd.51533.68.0.pdf
51) Christopher Roberts v. FHFA (7th Cir. 2018)
(16-2107)(1:16-cv-02107)(17-1880)
CLAIM: Derivative, 3th amendment, Treasury’s securities declared invalid
Judge: Edmond E. Chang
District Court, N.D. Illinois
https://www.courtlistener.com/docket/5642392/roberts-v-the-federal-housing-finance-agency/
On appeal before judge Wood, Bauer and Easterbrook
CASE LOST ON: HERA disempowers courts and existing stockholders, directors, and officers https://www.courtlistener.com/opinion/4495195/christopher-roberts-v-fhfa/
(the 5th circuit en banc decision conflicts this ruling)
52) Rafter v. Department Of The Treasury 14-1404 (1:14-cv-01404)
District Court, District of Columbia
Judge: Royce C. Lamberth
https://www.courtlistener.com/docket/4212962/rafter-v-department-of-the-treasury/
https://www.valueplays.net/2015/01/21/lambreth-rules-pershing-v-treasury/
CASE LOST ON: Voluntary Dismissal one business day before Defendants dispositive motions
https://www.courtlistener.com/recap/gov.uscourts.dcd.167678.20.0.pdf
53) Pagliara v. Federal National Mortgage Association (FNMA) (1:16-cv-00193)
District Court, D. Delaware
Judge: Gregory Moneta Sleet
https://www.courtlistener.com/docket/4499522/pagliara-v-federal-national-mortgage-association/
CASE LOST ON: Failure to state a claim upon which relief can be granted
http://courts.delaware.gov/Opinions/Download.aspx?id=257440
54) Pagliara v. Federal Home Loan Mortgage Corporation (FMCC) (1:16-cv-00337)
District Court, E.D. Virginia
Judge: James Chris Cacheris
CASE LOST ON: The Court has little confidence Pagliara seeks these records for valuation purposes
https://www.courtlistener.com/docket/4536190/pagliara-v-federal-home-loan-mortgage-corporation/
55) In re: Federal Home Loan Mortgage Corporation Derivative Litigation (1:08-cv-00773-LMB-TCB)
District Court, E.D. Virginia
Judge: Leonie M. Brinkema
The Class:
1:08-cv-773, Adams Family Trust v. Syron
1:08-cv-849, Louisiana Municipal Police Employees Retirement System v. Syron
1:08-cv-1247, Bassman v. Syron
https://www.courtlistener.com/docket/4832137/in-re-federal-home-loan-mortgage-corporation-derivative-litigation/
https://www.docketbird.com/court-documents/Federal-Housing-Finance-Agency-v-Hsbc-North-America-Holdings-Inc-et-al/Exhibit/nysd-1:2011-cv-06189-00152-037
CASE LOST ON: HERA, the sweeping language of HERA, which not only transfers "all rights, titles, powers, and privileges" of stockholders to the FHFA, but also bars a court from "restraining or affect(ing) the exercise of powers or functions of the (FHFA) as a conservator or a receiver
Sisti v. Federal Housing Finance Agency
Case number: 17-005 (90-1762)(17-042)
Honorable: John James McConnell, Jr
District Court, D. Rhode Island
Claim: FHFA, Fannie Mae, and Freddie Mac are government entities
https://www.courtlistener.com/docket/6900150/sisti-v-federal-housing-finance-agency/
March 24, 2020 Stipulation ~Until - Set Scheduling Order Deadlines
The Parties report to the Court that they are currently re-engaged in negotiations aimed at resolving the action. In order to afford the Parties with sufficient time to complete these discussions and discovery (if necessary), the Parties jointly request the Court extend the scheduling order deadlines by three (3) months to the following:
Factual Discovery to close by 6/30/2020;
Plaintiff's Expert Disclosures shall be made by 7/30/2020;
Defendants' Expert Disclosures shall be made by 8/28/2020;
Expert Discovery to close by 9/30/2020; and
Dispositive Motions due by 10/30/2020.
https://www.courtlistener.com/recap/gov.uscourts.rid.41482/gov.uscourts.rid.41482.53.0.pdf
When decided FHFA, FNMA and FMCC are government entities for matters of constitutional claims of due process and will confirm or not the paragraph nobody can take action while in conservatorship.
https://ecf.rid.uscourts.gov/cgi-bin/show_public_doc?2017cv0005-39
Seila law v. Consumer Financial Protection bureau (CFPB)
Case number: 19-7 (17-56324)
Court: Supreme Court of the United States
Argued March 3, 2020
Decided June 29, 2020
(1) “for-cause” removal protection is UNCONSTITUTIONAL
(2) 12 U.S.C. §5491(c)(3) can be severed from the Dodd-Frank Act
https://www.supremecourt.gov/opinions/19pdf/19-7_n6io.pdf
https://www.treasury.gov/press-center/daily-guidance/Pages/08172020.aspx
Monday, August 17, 2020
Secretary Steven T. Mnuchin
Participant
Federal Housing Finance Agency
Virtual Board Meeting
Washington, DC
Closed Press
per robert on yahoo :
Agree the supreme court will either confirm the NWS is illegal or Collins will be settled, but either way the NWS is already illegal per 5th circuit ruling and settling will not honor non-plaintiffs, so because the 5th circuit said it is illegal, a way must be found to moot new lawsuits in advance and compensate non-plaintiffs for FHFA’s bad behavior that is proven, as all shareholders have standing in perpetually because the 5th circuit already ruled the NWS it to be illegal
(in Count I in Collins (17-20364), they alleged the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(C), (D), affords relief because FHFA exceeded its statutory conservator authority under 12 U.S.C. § 4617(b)(2)(D).
(D)Powers as conservator The Agency may, as conservator, take such action as may be—
(i)necessary to put the regulated entity in a sound and solvent condition; and
(ii)appropriate to carry on the business of the regulated entity and preserve and conserve the assets and property of the regulated entity.)
In Short the NWS violates “to put in sound and solvent condition”
Then in count IV, they allege FHFA violates Article II, §§ 1 and 3 of the Constitution because, AMONG OTHER THINGS, it is headed by a single Director removable only for cause.
(12 U.S.C. § 4512(b)(2) The Director shall be appointed for a term of 5 years, unless removed before the end of such term FOR CAUSE by the President)
Then the (“independent” / “for cause”) agency will change to an (“executive” / “at will”) agency, this has multiple implications, but among these are:
1) executive agencies always have direct fiduciary duty towards shareholders as it is part of the government that cannot act out of self-interest
2) the deal FHFA made with Treasury is self-dealing, because it enriches Treasury in perpetually
3) Hera needs to be modified in a way that it does not violate the executive status for instance:
44 U.S.C. § 3502 (5) Term “independent agency” means the BOARD OF GOVERNORS of the FHFA
12 U.S.C. § 4511(a) Establishment
12 U.S.C. § 4512(b)(2) Term
12 U.S.C. § 4516(f)(2) Not Government funds
12 U.S.C. § 4617(a) HERA empowered FHFA to appoint itself as the conservator
12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
12 U.S.C. § 4617(b)(2)(J) Take any action in the best interests of the regulated entity or the FHFA (succession clause)
4) All the lost cases so far can be revisited as the reason why they were dismissed is deleted from HERA(4617(f))
5) The SPSPA will become a voidable contract by design as the 3th amendment needs to be stricken the contract is modified because it contains an illegal act, so out of fiduciary duty towards fannie and freddie the FHFA will have to void the contract in full, the law says this
“A contract may be deemed void should the terms require one or both parties to participate in an illegal act.” https://www.investopedia.com/terms/v/voidable-contract.asp
but treasury also claim this themselves in 6.7 & 6.12 of the SPSPA but them only for themselve
6) The illegal SPSPA now contains only regulations that an executive agency cannot and could not have made, for instance you cannot downsize the portfolio while the government owns Ginnie itself, so it would shift market share to Ginnie (and what already happened by the way from $427.6 billion in 2007 to $2.1 trillion in 2019 ) the actions they have taken in the SPSPA totally breached every rule in the book, and does square with the idea FnF need to downsize because of their safety and soundness but instead it is secretly giving away market share to Ginnie
7) Another executive agency HUD, operates Ginnie Mae, but executive agency FHFA, forced the privately owned companies Fannie and Freddie to develop the CSS/CSP with a cost of $2B on which the executive agency HUD can sell Ginnie’s UMBS’s
8) All assessments FHFA made during their lifetime will need to come back to the companies as privately owned companies do not pay executive agencies
Agree the problems FHFA has are severe and most of the lawsuits will NOT go away if the NWS is halted by FHFA, the ongoing lawsuits and troublesome spoiled attitude the government has toward the already illegal ruled NWS is VERY damaging for them, they want to win something that cannot be won, so now they try buy as much time as possible but it will not change a thing, which again will not complement anything, the FHFA is a conservator that can only act in the best interest of the companies, if they like it or not, they can ONLY act in the best interest of the company as that is their sole obligation, put in sound and solvent condition and conserve and preserve and that is exactly what they did NOT do, so I agree to settle dozens of cases is monumental, but when SCOTUS Confirm the 5th circuit ruling it is the end of the FHFA, it can no longer plausible act as “world class regulator” and it will go into the history books it breached every rule, but it also means the end of the SPSPA as it then had become voidable, so the FHFA could wait until there is a resolution in Collins mid next year or it could settle in the oncoming 2-3 months, after the elections plaintiffs will not settle and await SCOTUS as that reward will be way much more than the blank check FHFA will need to give to settle
1) So for reputation purpose it needs to settle
2) But because some people within the administration are not(cannot be) replaced by this administration, it keeps the old narrative ongoing, but somehow they miss the actual total-loss that is in front of them
3) It could be on purpose as the current administration promised it will never happen again in the future, and to achieve that SCOTUS needs to rule, so it is damaging for the government but not specifically for this administration so it destroys FHFA instead
4) In order to let it be plausible for “the street” it cannot settle
But in any event the government is the one who pays, as it acted outside their statute (proven by the 5th circuit which is almost impossible to overrule)
Updated Summary of the “PRAYER FOR RELIEF” in Fannie and Freddie lawsuits
Below are the full prayers for relief by plaintiffs, the Remedy and Direct & Derivative claims in the federal court:
Remedy:
1) Keep the SPSPA in place and not declare Rescission or Completion
2) Amend the 3th amendment (NWS)
3) Convert Pref to Common
4) Retain Earnings to Re-Capitalize
5) Keep the SPSPA as secondary form of regulation
6) Issue a SPO to Re-Capitalize
7) Execute the 79.9% warrant
8) Do nothing
9) Consent decree
(above is not possible according to the demanded relief below, 1) is not inline with the current administrations view to get out of conservatorship, 2) the contract is then voidable and FHFA would breach it fiduciary duty towards FnF, 3) what relief is given to common, 4) not possible according to the 5th circuit ruling the 3th is illegal and by that he contract is voidable because it violated 12 U.S.C. § 4617(b)(2)(D), 5) The FHFA only received temporary powers it is not infinite, if FnF are profitable the FHFA needs to release or it would breach it fiduciary duty, 6) the FHFA made a deal with treasury to confiscate all profits in perpetually and the 5th circuit found is acted outside their statute , so ones the funds are returned it needs to be seen what the damage is the FHFA caused, 7) the warrant is according to Sweeney one step away, if this one step is taking FHFA heads into trouble, 8) the courts will determine not the government 9) A consent decree is an agreement or settlement that resolves a dispute between two parties without admission of guilt, so the 5th circuit ruling needs to be reversed by SCOTUS in order to enter into such a consent decree
Direct claims in SCOTUS/Atlas and Lamberth’s court:
1) Treasury acted arbitrarily and capriciously …………………….… Common & Preferred
2) FHFA structure violates the separation of powers …………………….… Common & Preferred
3) return to FnF all dividend payments made to the Net Worth Sweep .. Common & Preferred
4) FHFA is unconstitutional when insulated from congressional and judicial review …… Common & Preferred
5) FHFA’s conservatorship powers violate the non-delegation doctrine … Common & Preferred
6) acting director Edward DeMarco’s tenure was unconstitutionally long .Common & Preferred
7) breaches of contract …………………….… Common & Preferred
8) breaches of the implied covenant of good faith and fair dealing …… Common & Preferred
9) breaches of fiduciary duties …………………….… Common & Preferred
10) violations of Delaware and Virginia law governing dividends …… Common & Preferred
11) FHFA may no longer operate as an independent agency ….… Common & Preferred
12) striking down the provisions HERA 12 U.S.C. §§ 4511(a), 4512(b)(2), and 4617(a)(7) …… Common & Preferred
13) Freddie breached the terms of the Certificates of Designation ……………. Preferred
14) Freddie breached the implied covenant of good faith and fair dealing ……………. Preferred
15) breach of Plaintiff's contractual rights for dividends, with interest thereon from the respective missed dividend payment dates ……………. Preferred
16) compensatory damages in favor of Plaintiff for Aiding and Abetting the Federal Government in avoiding payment on the Junior Preferred dividends, with interest ……………. Preferred
17) breach of fiduciary duty by FHFA, Fannie, and Freddie ……………. Preferred
18) Awarding Plaintiffs damages and injunctive relief resulting from the restructuring of dividends ……………. Preferred
Derivative Claims in Sweeney’s Court:
19) FHFA illegally exacted Plaintiffs’ property, and has breached the express and implied terms of Plaintiffs’ contracts defendant has taken Plaintiffs’ property without just compensation …………… Common
20) and awarding to Plaintiffs and the Classes the just compensation and/or damages sustained by them as a result of the violations set forth above …………… Common
21) ordering restitution and reformation as appropriate to ensure full compensation to Fannie Mae and the Fannie Common Class for damages suffered from the Third Amendment …………… Common
22) Awarding Plaintiffs prejudgment interest on any damages or just compensation …………… Common
23) Third Amendment is held to have been entered into in violation of HERA or the Constitution …………… Common
24) Fannie Mae is entitled to reformation of the underlying PSPA to invalidate and excise the Third Amendment. …………… Common
25) Awarding Plaintiffs pre-judgment and post-judgment interest …………… Common
26) Awarding rescissory damages, based upon the breach of fiduciary duty that occurred ……………………………. Common & Preferred
27) Awarding Plaintiffs damages for the Government’s illegal exaction of their stock ……………………………. Common & Preferred
28) Awarding Fannie and Freddie damages for the Government’s illegal exaction of their net worth ………….. Common & Preferred
29) Awarding Fannie and Freddie damages for the Government’s illegal exaction of their net worth ………….. Common & Preferred
30) awarding Plaintiffs damages suffered in the amount of $41 billion ………….. Common & Preferred
In order of appearance plaintiffs allege below mentioned prayers for relief in the misconduct FHFA / Treasury used to siphon of all profits of FnF in perpetually
16-3113 (17-20364) Collins v. Lew …………………….… Common & Preferred
PRAYER FOR RELIEF
a. Declaring that the Net Worth Sweep, and its adoption, are not in accordance with and violate HERA within the meaning of 5 U.S.C. § 706(2)(C), that Treasury acted arbitrarily and capriciously within the meaning of 5 U.S.C. § 706(2)(A) by executing the Net Worth Sweep, and that FHFA’s structure violates the separation of powers; (=5 U.S. Code §?706 (2) hold unlawful and set aside agency action, findings, and conclusions found to be—(A)arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;(C)in excess of statutory jurisdiction, authority, or limitations, or short of statutory right)
b. Enjoining Treasury and its officers, employees, and agents to return to Fannie and Freddie all dividend payments made pursuant to the Net Worth Sweep or, alternatively, recharacterizing such payments as a pay down of the liquidation preference and a corresponding redemption of Treasury’s Government Stock rather than mere dividends;
c. Vacating and setting aside the Net Worth Sweep, including its provision sweeping all of the Companies’ net worth to Treasury every quarter;
d. Enjoining FHFA and its officers, employees, and agents from implementing, applying, or taking any action whatsoever pursuant to the Net Worth Sweep;
e. Enjoining Treasury and its officers, employees, and agents from implementing, applying, or taking any action whatsoever pursuant to the Net Worth Sweep;
https://www.courtlistener.com/recap/gov.uscourts.txsd.1391317/gov.uscourts.txsd.1391317.1.0.pdf
18-2506 (17-2185) Bhatti vs. FHFA …………… Common & Preferred
PRAYER FOR RELIEF
1. Vacating and setting aside the third amendment to the PSPAs, including its
provision sweeping all of the Companies’ net worth to Treasury every quarter;
2. Enjoining Defendants and their officers, employees, and agents from
implementing, applying, or taking any action pursuant to the third amendment to the
PSPAs, including its provision sweeping all of the Companies’ net worth to Treasury
every quarter;
3. Enjoining Treasury and its officers, employees, and agents to return to
Fannie and Freddie all dividend payments made pursuant to the Net Worth Sweep or,
alternatively, recharacterizing such payments as a pay down of the liquidation preference
and a corresponding redemption of Treasury’s Government Stock rather than mere
dividends;
4. Declaring that FHFA’s structure violates the separation of powers, that
FHFA may no longer operate as an independent agency, and striking down the provisions
of HERA that purport to make FHFA independent from the President and unaccountable
to any of the three Branches of the federal government, including 12 U.S.C. §§ 4511(a),
4512(b)(2), 4617(a)(7), and 4617(f);
5. Awarding Plaintiffs their reasonable costs, including attorneys’ fees,
incurred in bringing this action; and
6. Granting such other and further relief as this Court deems just and proper.https://gselinks.com/Court_Filings/Bhatti/17-cv-02185-0027.pdf
“the non-delegation doctrine stands for the general proposition that Congress cannot delegate the power to legislate to anyone else, specifically the executive branch. The doctrine is derived from Article I of the Constitution, which says that, “All legislative powers herein granted shall be vested in a Congress of the United States. . . .”
13-1288 Miscellaneous Class Action … Common & Preferred
PRAYER FOR RELIEF
1) Awarding Plaintiffs and the Classes the amount of damages they sustained
as a result of Defendants’ breaches of contract, breaches of the implied
covenant of good faith and fair dealing, breaches of fiduciary duties,
and violations of Delaware and Virginia law governing dividends
https://www.courtlistener.com/recap/gov.uscourts.dcd.163155/gov.uscourts.dcd.163155.71.0.pdf
17-497 Rop v. Federal Housing Finance agency ……. Common & Preferred
PRAYER FOR RELIEF
a. Vacating and setting aside the third amendment to the PSPAs, including
its provision sweeping all of the Companies’ net worth to Treasury every quarter;
b. Enjoining Defendants and their officers, employees, and agents from
implementing, applying, or taking any action whatsoever pursuant to the third
amendment to the PSPAs, including its provision sweeping all of the Companies’ net
worth to Treasury every quarter;
c. Enjoining Treasury and its officers, employees, and agents to return to
Fannie and Freddie all dividend payments made pursuant to the Net Worth Sweep or,
alternatively, recharacterizing such payments as a pay down of the liquidation preference
and a corresponding redemption of Treasury’s Government Stock rather than mere
dividends;
d. Declaring that FHFA’s structure violates the separation of powers, that
FHFA may no longer operate as an independent agency, and striking down the provisions
of HERA that purport to make FHFA independent from the President and unaccountable
to any of the three Branches of the federal government, including 12 U.S.C. §§ 4511(a),
4512(b)(2), and 4617(a)(7)
https://gselinks.com/Court_Filings/Rop/17-cv-00497-0001.pdf
18-3478 Wazee Street Opportunities Fund IV LP v. United States …………… Common
PRAYER FOR RELIEF
1) Vacating and setting aside the third amendment to the PSPAs, including its
provision sweeping all of the Companies' net worth to Treasury every quarter;
2) Enjoining Defendants and their officers, employees, and agents from implementing, applying, or taking any action pursuant to the third amendment to the PSPAs, including its provision sweeping all of the Companies' net worth to Treasury every quarter;
3) Enjoining Treasury and its officers, employees, and agents to return to
Fannie and Freddie all dividend payments made pursuant to the Net Worth
Sweep or, alternatively, recharacterizing such payments as a pay down of
the liquidation preference and a corresponding redemption of Treasury's
Government Stock rather than mere dividends;
4) Declaring that FHFA's structure violates the separation of powers, that
FHFA may no longer operate as an independent agency, and striking down
the provisions of HERA that purport to make FHFA independent from the
President and unaccountable to any of the three Branches of the federal
government, including 12 U.S.C. §§ 4511(a), 4512(b)(2), 4617(a)(7), and
4617(f);
http://www.glenbradford.com/wp-content/uploads/2018/08/18-cv-03478-0001.pdf
19-7062 Joshua J. Angel v. Freddie Mac ……………. Preferred
PRAYER FOR RELIEF
A. Declaring that Defendants breached the terms of the Certificates of Designation
governing Fannie Mae’s and Freddie Mac’s Junior Preferred stocks;
B. Declaring that Defendants breached the implied covenant of good faith and fair
dealing inherent in the Certificates of Designation governing the Fannie Mae, and Freddie Mac Junior Preferred stock;
C. Awarding compensatory damages in favor of Plaintiff and against the Defendants. for breach of Plaintiff's contractual rights for dividends, with interest thereon from the respective missed dividend payment dates.
D. Awarding in compensatory damages in favor of Plaintiff and against the Defendants for breaches of the Company’s Certificates of Designation and the implied covenant of good faith and fair dealing, including interest thereon from the respective missed dividend payment dates;
E. Awarding compensatory damages in favor of Plaintiff for Aiding and Abetting the
Federal Government in avoiding payment on its implicit guaranty of Junior Preferred dividends, with interest thereon from the respective missed dividend payment dates.
https://www.courtlistener.com/recap/gov.uscourts.dcd.196956/gov.uscourts.dcd.196956.1.0.pdf
13-1439 Arrowood Indemnity Company v. Fannie Mae …… Preferred
PRAYER FOR RELIEF
a. Declaring that the Net Worth Sweep, and its adoption, are not in
accordance with and violate HERA within the meaning of 5 U.S.C. § 706(2)(C), and that
Treasury acted arbitrarily and capriciously within the meaning of 5 U.S.C. § 706(2)(A)
by executing the Net Worth Sweep;
b. Enjoining Treasury and its officers, employees, and agents to return to
Fannie and Freddie all dividend payments made pursuant to the Net Worth Sweep or,
alternatively, recharacterizing such payments as a pay down of the liquidation preference
and a corresponding redemption of Treasury’s Government Stock rather than mere
dividends;
c. Vacating and setting aside the Net Worth Sweep, including its provision
sweeping all of the Companies’ net worth to Treasury every quarter;
d. Enjoining FHFA and its officers, employees, and agents from
implementing, applying, or taking any action whatsoever pursuant to the Net Worth
Sweep
e. Enjoining Treasury and its officers, employees, and agents from
implementing, applying, or taking any action whatsoever pursuant to the Net Worth
Sweep;
f. Enjoining FHFA and its officers, employees, and agents from acting at the
instruction of Treasury or any other agency of the government and from re-interpreting
the duties of FHFA as conservator under HERA;
g. Awarding Plaintiffs damages resulting from the breach of fiduciary duty
by FHFA, Fannie, and Freddie;
h. Awarding Plaintiffs damages resulting from the breach of contract and
breach of the implied covenant of good faith and fair dealing by FHFA, Fannie, and
Freddie;
i. Awarding Plaintiffs damages and injunctive relief resulting from the
restructuring of dividends on Treasury’s senior preferred stock in violation of Delaware
and Virginia law;
https://gselinks.com/Court_Filings/Arrowood/13-cv-01439-0083.pdf
13-1053 Fairholme Fund, Inc. v. FHFA …… Preferred
PRAYER FOR RELIEF
a. Declaring that the Net Worth Sweep, and its adoption, are not in
accordance with and violate HERA within the meaning of 5 U.S.C. § 706(2)(C), and that
Treasury acted arbitrarily and capriciously within the meaning of 5 U.S.C. § 706(2)(A)
by executing the Net Worth Sweep;
b. Enjoining Treasury and its officers, employees, and agents to return to
Fannie and Freddie all dividend payments made pursuant to the Net Worth Sweep or,
alternatively, recharacterizing such payments as a pay down of the liquidation preference
and a corresponding redemption of Treasury’s Government Stock rather than mere
dividends;
c. Vacating and setting aside the Net Worth Sweep, including its provision
sweeping all of the Companies’ net worth to Treasury every quarter;
d. Enjoining FHFA and its officers, employees, and agents from
implementing, applying, or taking any action whatsoever pursuant to the Net Worth Sweep;
e. Enjoining Treasury and its officers, employees, and agents from
implementing, applying, or taking any action whatsoever pursuant to the Net Worth
Sweep;
f. Enjoining FHFA and its officers, employees, and agents from acting at the
instruction of Treasury or any other agency of the government and from re-interpreting
the duties of FHFA as conservator under HERA;
g. Awarding Plaintiffs damages resulting from the breach of fiduciary duty
by FHFA, Fannie, and Freddie;
h. Awarding Plaintiffs damages resulting from the breach of contract and
breach of the implied covenant of good faith and fair dealing by FHFA, Fannie, and
Freddie;
i. Awarding Plaintiffs damages and injunctive relief resulting from the
restructuring of dividends on Treasury’s senior preferred stock in violation of Delaware
and Virginia law;
https://www.courtlistener.com/recap/gov.uscourts.dcd.160910/gov.uscourts.dcd.160910.74.0.pdf
----------------------------------------------------
Cases in Sweeney’s court (Derivative)
----------------------------------------------------
18-1124C Wazee Street Opportunities Fund IV LP v. United States …………… Common
PRAYER FOR RELIEF
1. Certifying that this action is a proper class action under Rule 23(a) and
(b)(3) of the Federal Rules of Civil Procedure on behalf of the Classes
defined herein;
2. Finding that the Defendant has taken Plaintiffs’ property without just
compensation, has illegally exacted Plaintiffs’ property, and has breached
the express and implied terms of Plaintiffs’ contracts;
3. Determining and awarding to Plaintiffs and the Classes the just
compensation and/or damages sustained by them as a result of the
violations set forth above;
4. On Count IX, ordering restitution and reformation as appropriate to
ensure full compensation to Fannie Mae and the Fannie Common Class
for damages suffered from the Third Amendment;
5. Awarding Plaintiffs prejudgment interest on any damages or just
compensation to which Plaintiffs are entitled;
6. Awarding Plaintiffs their reasonable costs and expenses incurred in this
action, including counsel fees and expert fees
COUNT IX DERIVATIVE CLAIM ON BEHALF OF FANNIE MAE
199. appropriating and illegally exacting the property of Fannie Mae shareholders, the Third Amendment also appropriated and illegally exacted the property of Fannie Mae.
200. Moreover, if the Third Amendment is held to have been entered into in violation of HERA or the Constitution, then it is unlawful and void.
201. As a party to an unlawful and void agreement, Fannie Mae is entitled to seek a return of all amounts transferred to Treasury pursuant to the Third Amendment.
202. In addition, Fannie Mae is entitled to reformation of the underlying PSPA to invalidate and excise the Third Amendment.
203. Fannie Mae has suffered injury as a direct and proximate result of the unlawful Third Amendment, including monetary damage.
204. Fannie Mae is controlled by FHFA, which was a party to, and as an agency of the Government benefitted from, the illegal and unconstitutional actions challenged here. FHFA is therefore not disinterested with regard to Plaintiffs’ claims, and thus it would be
futile to demand that FHFA bring these claims on behalf of Fannie Mae. Additionally,
Plaintiffs’ alternative derivative claim is not a collusive action intended to confer jurisdiction on this Court that it would otherwise lack and they were shareholders at the time of the transaction complained of. Plaintiffs and the Fannie Common Class are therefore entitled to bring these claims on a derivative basis on Fannie’s behalf, to the extent the claims are held to be derivative rather than direct.
http://www.glenbradford.com/wp-content/uploads/2018/08/18-cv-03478-0001.pdf
18-1150 Highfields Capital v. United States ……………………………. Common & Preferred
PRAYER FOR RELIEF
A. Finding that the United States has taken or illegally exacted Plaintiffs’ private
property in violation of the Takings or Due Process Clauses of the Constitution;
B. Awarding Plaintiffs just compensation under the Fifth Amendment for the United
States’ taking of its property;
C. Determining and awarding to Plaintiffs the damages sustained by them as a result
of the violations set forth above;
D. Awarding rescissory damages, based upon the breach of fiduciary duty that occurred;
E. Awarding Plaintiffs pre-judgment and post-judgment interest
http://gselinks.com/wp-content/uploads/2018/08/18-01150-0001-Complaint-Filed-8-8-18.pdf
13-465C FAIRHOLME FUNDS, INC. v. United States ………….. Common & Preferred
PRAYER FOR RELIEF
Excluding the “SEALED” second amended complaint prayer of relief
A. Awarding Plaintiffs just compensation under the Fifth Amendment for the Government’s taking of their property;
B. Awarding Fannie and Freddie just compensation under the Fifth Amendment for the Government’s taking of their property;
C. Awarding Plaintiffs damages for the Government’s illegal exaction of their stock;
D. Awarding Fannie and Freddie damages for the Government’s illegal exaction of their net worth;
E. Awarding Plaintiffs damages for the Government’s breach of fiduciary duty;
F. Awarding Fannie and Freddie damages for the Government’s breach of fiduciary duty;
G. Awarding Plaintiffs damages for the Government’s breach of implied-in-fact contract;
H. Awarding Fannie and Freddie damages for the Government’s breach of implied-in-fact contract;
I. Awarding Plaintiffs pre-judgment and post-judgment interest
https://gselinks.com/Court_Filings/Fairholme/13-465-0404.pdf
18-281C OWL CREEK ASIA I L.P...........……………………….Preferred
PRAYER FOR RELIEF
A. Finding that the United States has taken or illegally exacted Owl Creek’s private
property in violation of the Takings or Due Process clauses of the Constitution;
B. Awarding Owl Creek just compensation under the Fifth Amendment for the
United States’ taking of its property;
C. Determining and awarding to Owl Creek the damages sustained by it as a result of
the violations set forth above;
D. Awarding rescissory damages, based upon the breach of fiduciary duty that
occurred;
E. Awarding to Owl Creek the costs and disbursements of this action, including
reasonable attorneys’ and experts’ fees, costs and expenses; and
F. Granting such other and further relief as the Court deems just and proper.
13-385C WASHINGTON FEDERAL ………………………………… Common & Preferred
PRAYER FOR RELIEF
A. Determining that this action may be maintained as a class action;
B. Certifying Classes of, (A) for Fannie Mae (1) all persons or entities who held shares
of Fannie Mae common stock on or before September 5, 2008, and (2) all persons or entities who
held shares of Fannie Mae preferred stock on or before September 5, 2008; and, (B) for Freddie
Mac (1) all persons or entities who held shares of Freddie Mac common stock on or before
September 5, 2008, and (2) all persons or entities who held shares of Freddie Mac preferred stock
on or before September 5, 2008.
C. Finding that Plaintiffs have met the requirements of a class representative and may
maintain this action as representatives of the Classes;
D. Finding that the Defendant has taken and/or illegally exacted Plaintiffs’ and the
Classes private property in violation of the Due Process and Takings Clauses of the United States
Constitution;
E. Determining and awarding Plaintiffs and the Classes damages suffered by them by
virtue of the Defendant’s taking and/or illegal exaction in the amount of $41 billion, or some other
amount to be determined at trial;
F. Prejudgment and post-judgment interest, together with any and all further costs,
disbursements and reasonable attorneys’ and experts’ fees;
https://www.courtlistener.com/recap/gov.uscourts.uscfc.28070/gov.uscourts.uscfc.28070.70.0_1.pdf
13-672C SHIPMON …………………………………………………………… Common
PRAYER FOR RELIEF
A. Finding that the United States has unlawfully taken the private property of
Fannie Mae for public use without just compensation in violation of the
Takings Clause of the Fifth Amendment to the U.S. Constitution;
B. Determining and awarding Fannie Mae just compensation for the
Government's taking of its property;
C. Awarding Plaintiff the costs and disbursements of the action, including
reasonable attorneys’ fees, experts’ fees, costs, and other expenses; and
D. Granting such other and further relief as the Court deems just and proper.
https://www.courtlistener.com/recap/gov.uscourts.cofc.28831.1.0.pdf
13-608C BRYNDON FISHER FNMA .........……………………………… Common
CLAIMS FOR RELIEF
Unlawful Taking Without Just Compensation
Under the Fifth Amendment to U.S. Constitution
102. Plaintiffs incorporate by reference and reallege each and every allegation
of the preceding paragraphs, as though fully set forth herein.
103. The Fifth Amendment to the United States Constitution provides that no
person shall "be deprived of life liberty, or property, without due process of law; nor
shall private property be taken for public use, without just compensation."
104. By imposing the Net Worth Sweep, which in Treasury's own words was
designed to take "every dollar of earnings [Fannie Mae] generates ... to benefit
taxpayers," the Government took all reasonable value of the Company for public use.
105. When the Government takes private property for a public use or a public
purpose, the Fifth Amendment requires the payment of "just compensation."
106. The Government did not pay just compensation to Fannie Mae for its
taking of the entire net worth of the Company. As a result, Fannie Mae was injured and
is entitled to just compensation in a sum equal to the amounts taken by the Government
through its unlawful imposition of the Net Worth Sweep.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, on behalf of Fannie Mae, demand judgment against the
United States of America as follows:
A. Finding that the United States has unlawfully taken the private property of
Fannie Mae for public use without just compensation in violation of the
Takings Clause of the Fifth Amendment to the U.S. Constitution;
B. Determining and awarding Fannie Mae just compensation for the
Government's taking of its property;
C. Awarding Plaintiffs the costs and disbursements of the action, including
reasonable attorneys' fees, experts' fees, costs, and other expenses; and
D. Granting such other and further relief as the Court deems just and proper.
https://www.courtlistener.com/recap/gov.uscourts.cofc.28753.1.0.pdf
14-152C BRUCE REID FMCC .........……………………………………… Common
CLAIMS FOR RELIEF
Unlawful Taking Without Just Compensation
Under the Fifth Amendment to U.S. Constitution
115. Plaintiffs incorporate by reference and reallege each and every allegation
of the preceding paragraphs, as though fully set forth herein.
116. The Fifth Amendment to the United States Constitution provides that no
person shall “be deprived of life liberty, or property, without due process of law; nor
shall private property be taken for public use, without just compensation.”
117. By imposing the Third Amendment, which in Treasury’s own words was
designed to take “every dollar of earnings [Freddie Mac] generates ... to benefit
taxpayers,” the Government took all reasonable value of the Company for public use.
118. When the Government takes private property for a public use or a public
purpose, the Fifth Amendment requires the payment of “just compensation.”
119, The Government did not pay—and under the Third Amendment will not
pay—just compensation to Freddie Mac for its taking of the entire net worth of the
Company. As a result, Freddie Mac has been injured and is entitled to just compensation
in a sum equal to the amounts taken by the Government through its unconstitutionalimposition of the Third Amendment.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, on behalf of Freddie Mac, demand judgment against
the United States of America as follows:
A. Finding that the United States has unlawfully taken the private property of
Freddie Mac for public use without just compensation in violation of the
Takings Clause of the Fifth Amendment to the U.S. Constitution;
B. Determining and awarding Freddie Mac just compensation for the
Government’s taking of its property;
C. Awarding Plaintiffs the costs and disbursements of this action, including
reasonable attorneys’ fees, experts’ fees, costs, and other expenses; and
D. Granting such other and further relief as the Court deems just and proper.
https://www.courtlistener.com/recap/gov.uscourts.uscfc.29350/gov.uscourts.uscfc.29350.1.0.pdf
14-740C LOUISE RAFTER .........………………………………….. Common
CLAIM I – Just Compensation Under the Fifth Amendment for the Taking of Private
Property for Public Use (Derivative Claim on Behalf of Fannie Mae by Plaintiff Rafter and
the Rattien Plaintiffs)
CLAIM II – Just Compensation Under the Fifth Amendment for the Taking of Private
Property for Public Use (Direct Claims by All Plaintiffs) CLAIM III – Illegal Exaction (Derivative Claim on Behalf of Fannie Mae by Plaintiff Rafter and the Rattien Plaintiffs) CLAIM IV – Breach of Contract: Reformation of Contract to Undo Unlawful Amendment
to Contract and Restitution of Funds (Derivative Claim on Behalf of Fannie Mae by Plaintiff
Rafter and the Rattien Plaintiffs)
CLAIM V – Breach of Contract: Fannie Mae’s Charter, By-Laws and the Delaware General Corporations Law (Direct Claim by All Plaintiffs)
CLAIM VI – Breach of Contract: Covenant of Good Faith and Fair Dealing Implied in Fannie
Mae’s Charter (Direct Claim by All Plaintiffs)
CLAIM VII – Breach of Contract: Covenant of Good Faith and Fair Dealing Implied in Freddie Mac’s Charter (Direct Claim by Plaintiff Pershing Square)
PRAYER FOR RELIEF
a. On Claim I, awarding Fannie Mae just compensation under the Fifth Amendment
for the Government’s taking of its property, in amount to be determined at trial;
b. On Claim II, awarding Plaintiffs just compensation under the Fifth Amendment for
the Government’s taking of their property, in an amount to be determined at trial;
c. On Claim III, awarding Fannie Mae damages for the Government’s illegal exaction
of its money, in amount to be determined at trial;
d. On Claims IV, awarding Fannie Mae damages, reformation, disgorgement,
equitable restitution or other appropriate relief for the United States’ illegal amendment to and breach of contract;
e. On Claims V, VI and VII, awarding Plaintiffs damages, disgorgement, restitution
or other appropriate relief for the United States’ breach of contract, in amount to be determined at trial;
f. Awarding Plaintiffs the costs and disbursements of this action, including reasonable
attorneys’ and experts’ fees, costs and expenses; and
g. Granting such other, further and different relief as this Court deems just and proper.
https://gselinks.com/Court_Filings/Rafter/14-740-0027.pdf
13-466C JOSEPH CACCIAPALLE … …….. …… …… …… ………Preferred
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for relief and judgment, as follows:
1. Certifying that this action is a proper class action under Rule 23 of the Rules of the United States Court of Federal Claims on behalf of the Classes defined herein;
2. Finding that the Defendant has taken Plaintiffs’ property without just compensation, has illegally exacted Plaintiffs’ property, and has breached the express and implied terms of Plaintiffs’ contracts;
3. Determining and awarding to Plaintiffs the just compensation and/or damages sustained by them as a result of the violations set forth above;
4. Awarding Plaintiffs prejudgment interest on any damages or just compensation to which Plaintiffs are entitled;
5. Awarding Plaintiffs their reasonable costs and expenses incurred in this action, including counsel fees and expert fees; and
6. Granting such other and further relief as the Court may deem just and proper.
https://gselinks.com/Court_Filings/Cacciapalle/13-466-0067.pdf
13-496C AMERICAN EUROPEAN INSURANCE …….. ……. Preferred
PRAYER FOR RELIEF
A. Certifying this action as a class action and Plaintiff as Class representatives:
B. Awarding Plaintiff and the Class just compensation for the Government’s taking
of their property;
C. Awarding Plaintiff the costs and disbursements of the action, including reasonable
attorneys’ fees, experts’ fees, costs, and other expenses; and
D. Granting such other and further relief as the Court deems just and proper.
https://www.courtlistener.com/recap/gov.uscourts.cofc.28421.1.0.pdf
Excluded prayers for relief:
FRANCIS J. DENNIS (deceased)…. …… ……. ………Case No. 13-542C Preferred
ARROWOOD INDEMNITY COMPANY .........…Case No. 13-698C Preferred
OWL CREEK ASIA I L.P........... …… …… …… ……….Case No. 18-281C Preferred
AKANTHOS OPPORTUNITY MASTER FUND ...Case No. 18-369C Preferred
APPALOOSA INVESTMENT ......... …… …… ……….Case No. 18-370C Preferred
CSS LLC …… …… …… …… …… …… …… …… …… ……….Case No. 18-371C Preferred
MASON CAPITAL L.P........... …… …… …… …… ……..Case No. 18-529C Preferred
683 CAPITAL PARTNERS …… …… …… …… …… …….Case No. 18-711C Preferred
PATT ….. …… …… …… …… …… …… …… …… …… ……….Case No. 18-712C Preferred
The facts that DO matter
The FHFA received consent from the BOD, the FHFA did NOT HAVE legal power to put Fannie and Freddie in conservatorship as they were not significant undercapitalized per § 4613 https://www.law.cornell.edu/uscode/text/12/4613, so they had to do it with voluntary consent, however if a company voluntary agrees to conservatorship FHFA does not have the power that is given § 4615 and § 4616 https://www.law.cornell.edu/uscode/text/12/4615
https://www.law.cornell.edu/uscode/text/12/4616 or any other power for that matter, it can only act on the powers(consent) it received from the BOD, nothing more, nothing less, Fannie and Freddie were NOT put into mandatory conservatorship but out of free will, so all the mandatory or wishful thinking Treasury/FHFA might have had, if the Consent lacks from the BOD it cannot enter into such an agreement, if it is written in a contract or they said it a thousand times, if consent is missing it is not allowed per the constitution, and that is why the government so desperately wants to hide this consent, so no matter what codes the government uses out of HERA as defense, if the consent is missing there is no basis
so if HERA says in 12 USC 4617(b)(6) the BOD is not liable, it is based on an agreement with the BOD that HERA is applicable to conservatorship and if the BOD gave consent to HERA it is breaching its duty of candor as HERA states it can act out of FHFA self-interest and to that the BOD could never agree as it would give away the belonging of the shareholders that it is supposed to protect
Once conservatorship started it was the obligation for FHFA to put Fannie and Freddie in sound and solvent condition, but they were already solvent, so they forced $2.4Trillion 3th party MBS on the books of FNF in 2009, so they became insolvent, that is a somewhat different approach then is expected from a world class regulator who is supposed to preserve and conserve and put in sound a solvent condition (control F the amount without $ sign and it will bring you to the page)
-2009 Fannie’s book $769,252 - 3th party MBS $2,432,789
-2010 Fannie’s book $3,099,250 - 3th party MBS $21,323
-2009 https://www.fanniemae.com/resources/file/ir/pdf/quarterly-annual-results/2009/form10k_022610.pdf
-2010 https://www.fanniemae.com/resources/file/ir/pdf/quarterly-annual-results/2010/10k_2010.pdf
The FHFA only has the powers it received from congress, it does NOT have the power to do as it wishes, Fannie and Freddie were not severely undercapitalized per § 4613, so OFHEO/FHFA had no LEGAL reason to put Fannie and Freddie into conservatorship, so it is relying on U.s codes with no basis that allowed the FHFA to use these codes in any way, the legal basis to use the U.S codes is missing
The warrant FHFA agreed on with treasury was strange as the company was solvent at the time conservatorship started sept 6, 2008, but only insolvent companies receive warrants, it is NOT possible to install warrants into a company that is solvent executed wishful thinking maybe, but legal no, that way is could confiscate all companies in the U.S. without need, if legal was only as simple as that
The HERA statute contains a lot of “NON-conservator” rules, for instance a conservator cannot act out of self-interest and cannot forbids judicial powers on its actions, although it states this in HERA it is not the way the constitution is written, so either HERA is wrong or the constitution, you choose yourself
The NWS is illegal we all know that, the in perpetually confiscating of funds by treasury will sooner later come to a halt, and the funds distributed under this illegal act will need to be returned in full, with interest, no doubt about that, but because the contract contains an illegal rule the contract also becomes a voidable contract and because the FHFA can only act what is in the best interest of the shareholders or the company will need to void it because the 3th amendment is illegal, so even though no lawsuit seeks to end the SPSPA it still needs to be void, cool right? you as stockholder must be having a drink on that one
https://www.investopedia.com/terms/v/voidable-contract.asp
a junior-to-common conversion is never going to happen I explained it in earlier posts, if the junior to common would convert the FHFA acknowledges wrongdoings, because the pref dividends are on pause in perpetually, then if the FHFA decides this needs to be undone unwould or prefs need some kind of remedy for the illegal pause moment and let them convert to common then what remedy would common holders receive for the same error, more common shares? To settle the lawsuits a pref and common both want remedy,
the road to convert prefs is the road to nowhere, Washington federal was the one to receive the missed dividends back, if the 3th amendment is called illegal per SCOTUS in Collins question(2):
-
By valid action(doubtfull at least) at a duly called meeting of the Board of Directors on September 6, 2008 the consent was established in an implied-in-fact contact (that is sealed under court law)(BOD meeting minutes of sept 6, 2008),
https://www.sec.gov/Archives/edgar/data/310522/000129993308004619/exhibit1.htm
now whatever this contract contains the BOD duties cannot be breached as it was voluntary because the companies were solvent, and only could go into conservatorship by voluntary consent of the BOD, otherwise it would not be legal, then on Sept 7, 2008 ONE DAY LATER the Senior Preferred Stock Purchase Agreements (SPSPAs), was executed https://www.fhfa.gov/Conservatorship/Pages/Senior-Preferred-Stock-Purchase-Agreements.aspx but was this SPSPA in consent with the consent it received one day earlier from the BOD? NOBODY knows, and that is the problem, as when the BOD agreed to give away 79.9%(or whatever it takes) it would breach its duty of candor and if it did not give this consent the FHFA breaches their fiduciary duty as conservator of the conservatee, although HERA does allow this it is a no go for a conservator to do this to the conservatee that is common sense, so 12 U.S.C. § 4617(b)(2)(J)(ii) needs to go https://www.law.cornell.edu/uscode/text/12/4617
-Sept 6, 2008 FHFA received consent from the BOD by implied-in-fact-contract to conservatorship(facts unknown)
-Sept 7, 2008 SPSPA executed with a 79.9% warrant
Either way one of the 2 made a huge mistake the BOD or the FHFA(spoiler alert it was the FHFA)
Half the warrant is not a possibility the warrant belongs to Treasury and Treasury alone will receive 100% of the warrant, but the BOD did not give consent to FHFA to do whatever it takes, there are boundaries on consent allowed per statute of the BOD, if we rewind to the moment the companies where put into conservatorship the BOD agreed to conservatorship(acting in the best interest of the shareholders or FnF), then days later they installed the SPSPA with some very troublesome demands for shareholders(79.9% warrant) this is possible per AIG if FnF were bankrupt, but they were NOT (the devil is in the detail) then because FHFA agreed to the 79.9% warrant the FHFA breaches their fiduciary duty toward Fannie and Freddie and if allowed the BOD would breach their duty of candor, then if somehow treasury would split the warrant there is still no resolution if it is lawful for the FHFA to act outside conservator statute but within HERA statute (because HERA allows the FHFA can act out of self-interest which is illegal pur sang for a conservator)
The warrant was obtained unlawful per conservator statute, but lawful within HERA, lucky enough we have several lawsuits who challenge the NWS, then when the 3th amendment is illegal, the SPSPA contract will change to a voidable contract, and because the FHFA only can act in the best interest of the shareholders or the company the FHFA will have to void the SPSPA in full, because the court determined the 3th amendment is illegal, then the SPSPA has an illegal rule that makes the contract voidable, and because a conservator can only act in the best interest of a conservatee, the FHFA will need to void it completely by statute or it again will act outside its statute
Then to come back to the dilution, I see a lot of wishful thinking and possibilities one might have out of self-interest but as long a there is no resolution in the court I don’t see any dilution happening that is legal, if years later a ruling would come out and it is determined the FHFA cannot act out of self-interest(logical) the whole thing needs to be unwound/ crawled back and dozens of lawsuits need to be revisited, I don’t see it as a possibility that makes any legal sense for the government, especially now the current administration determined they want Fannie and Freddie out of conservatorship, the proof is in the pudding
The capital or best called lack of capital is due to FHFA, they agreed to the terms with Treasury, if these terms were not present the companies would have been very very profitable, so the political actions need to take a step aside and make room for corporate lawful actions they underestimated from the beginning
Well there are only 3 options:
1) FHFA will void the warrant voluntary
2) The court will determine the warrant void
3) FHFA will execute the warrant
1) Will be the most logical, the consent FHFA received from the old BOD (board of directors) cannot be to put shareholders in jeopardy while the company is solvent, because it would breach the BOD duty of candor, also they did not pay or give Fannie and Freddie any additional funds for this (79.9%) taking of property, so it breaches FHFA’s fiduciary duty is has towards the conservatee, FHFA agreed to the 79.9% warrant what is not in the best interest of the company shareholders while consent was voluntary given by the BOD that can only act what is in the best interest of the shareholders or the company, then this consent they received was on a implied-in-fact-contract which is not more than mutual consent in thoughts, so this consent is NOT enforceable, as both FHFA and Fannie and Freddie must make public the consent they gave and what it received, so voluntary voiding the warrant makes the most sense
2) It is unlikely the court will void the warrant, too much hassle, using AIG as precedent the crux of the problem is the court determined only derivative claims can be made against the warrant, but FHFA agreed to the warrant itself, so it not only breaches FHFA fiduciary duty towards Fannie and Freddie but in its statute also forbids the courts to rule on it, while the FHFA should as proper conservator made the right decision for the company and can never EVER give away stuff for free, but HERA says it can act in the best interest of itself, a vicious circle that the courts probably want to avoid
3) It is unlikely the FHFA will execute the warrant unless there is a court that determined is can do so, the warrant was obtained thru consent, but a conservator could never EVER agree to such thing as a conservator should ONLY conserve and preserve, now that it established is Seila FHFA is an executive agency it also is now self-dealing between Treasury and FHFA, which is illegal, then if for some reason they think it still is wise, the consent again comes into play and the BOD will have to testify publicly they agreed to the consent to give away the company, because if you give away a company it will not be as easy “because I said so” and again that would breach the BOD duty of candor, then if you claim following happened:
The warrant cannot be executed as Fannie and Freddie were solvent at the time of takeover, the AIG case which is president here and enables the government to take over 79.9% of the company is based on a bankrupt company, not on a voluntary agreement of a solvent company, the fiduciary duty and duty of candor forbid this
AIG The win: https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2011cv0779-443-0 (page 67)
“Based upon the foregoing, the Court concludes that the Credit Agreement Shareholder Class shall prevail on liability due to the Government’s illegal exaction”
AIG The appeal: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-5103.Opinion.5-5-2017.1.PDF (page3)
“We conclude that Starr and the shareholders represented by Starr lack standing to pursue the equity acquisition
claims directly, as those claims belong exclusively to AIG”
AIG The petition to SCOTUS was denied : http://www.supremecourt.gov/DocketPDF/17/17-540/35194/20180212162644556_17-540%20STARR.pdf
Question presented (page 2)
“Whether the court of appeals correctly held that petitioner, a shareholder of American International Group
(AIG), lacked standing to challenge the terms of the government’s rescue loan to AIG after the corporation
itself declined to sue”
(page 35)
the decisions of a corporation—including the decision to initiate litigation— should be made by the [corporation’s] board of directors,”……….. Nothing in Lexmark or in other precedents of this Court suggests that such a result would be proper.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.”
But the discussion in AIG is not the same as in Fannie or Freddie, AIG was bankrupt and had no other options left and would have been bankrupt anyway without further assistants, in Fannie and Freddie the board voluntary agreed to be re-organized at the time they were solvent, only after conservatorship started(with an implied-in-fact contract) the FHFA made them insolvent by writing down which eventually needed to be reversed in 2012 with NWS as counteraction
Will call you next week when I return from vacation
JOSEPH CACCIAPALLE OPINION AND ORDER VI. CONCLUSION
For the reasons stated above, the court dismisses all of plaintiffs’ claims. The court lacks
jurisdiction to entertain plaintiffs’ judicial takings claim and their fiduciary duty claim. Further,
plaintiffs lack standing to bring their contract claims due to the absence of privity with the
United States, and lack standing to bring their nominally direct takings, illegal-exaction, and
fiduciary duty claims because the nature of these claims is derivative, not direct. 36 The court
therefore GRANTS defendant’s motion to dismiss. 37 The clerk is directed to enter judgment in
this consolidated case accordingly. No costs.
IT IS SO ORDERED.
s/ Margaret M. Sweeney
https://www.courtlistener.com/opinion/4764410/cacciapalle-v-united-states/
Thanks for the continued support Guido2, lotto 65, mrfence
Fannie Mae & Freddie Mac conservator Litigation, FNMA, FMCC updated July 24, 2020
1) 19-422 Patrick J Collins v. Mnuchin .… Common & Preferred, Derivative
2) 19-563 Mnuchin v. Patrick J Collins ……. Relates to all cases
COURT: SUPREME COURT of the United States
Judges: Roberts, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh
https://www.scotusblog.com/case-files/cases/collins-v-mnuchin/
https://www.scotusblog.com/case-files/cases/mnuchin-v-collins/
Above 2 cases are consolidated, the related 3 cases are :
- 17-497 Rop v. Federal Housing Finance agency ……. Common & Preferred, Derivative
- 18-2506 Atif F. Bhatti vs. FHFA ………………………… Common & Preferred, Derivative
- 18-3478 Wazee Street Opportunities v. USA …… Common, Class action, Derivative
Collins Claim:
(1) Whether FHFA’s structure violates the separation of powers; and
(2) Whether the courts must set aside a final agency action that FHFA took when it was unconstitutionally structured and strike down the statutory provisions that make FHFA independent.
Collins identified the FHFA breached following statutory provisions by its actions:
a) 5 U.S.C. § 706(2)(C) hold unlawful and set aside agency action, findings, and conclusions found to be—in excess of statutory jurisdiction, authority, or limitations, or short of statutory right
b) 5 U.S.C. § 706(2)(A) hold unlawful and set aside agency action, findings, and conclusions found to be— arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law
And found following U.S. Codes have issues because of the actions FHFA have taken
c) 44 U.S.C. § 3502 (5) Term “independent agency” means the Board of Governors of the FHFA
d) 12 U.S.C. § 4511(a) Establishment
e) 12 U.S.C. § 4512(b)(2) Term (5th circuit found it violates the separation of powers)
f) 12 U.S.C. § 4516(f)(2) Not Government funds
g) 12 U.S.C. § 4617(a) HERA empowered FHFA to appoint itself as the conservator
h) 12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
i) 12 U.S.C. § 4617(b)(2)(A)(i)(not J) Incidental powers (succession clause)
http://www.supremecourt.gov/DocketPDF/19/19-422/116983/20190925131502103_Collins%20Petition--PDFA.pdf
Mnuchin claims:
(1) Whether the statute’s anti-injunction clause, which precludes courts from taking any action that would “restrain or affect the exercise of powers or functions of the Agency as a conservator,” 12 U.S.C. 4617(f), precludes a federal court from setting aside the Third Amendment.
(2) Whether the statute’s succession clause—under which FHFA, as conservator, inherits the shareholders’ rights to bring derivative actions on behalf of the enterprises—precludes the shareholders from challenging the Third Amendment.
According to the Government it has following U.S. Codes that allowed them to implement the NWS
a) 12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
b) 12 U.S.C. § 4617(b)(2)(A)(i) Incidental powers (succession clause)
c) 12 U.S.C. § 4617(b)(2)(B) Operate the regulated entity
d) 12 U.S.C. § 4617(b)(2)(D) put in sound and solvent condition; and carry on the business
e) 12 U.S.C. § 4617 Authority over critically undercapitalized regulated entities
July 9, 2020 The U.S. Supreme Court granted the Collins Plaintiffs’ and the government’s petitions to review the Fifth Circuit’s decision that state, APA claims are barred by 12 U.S.C. § 4617(f), and REMAND declaring the “for cause” 12 U.S.C. § 4512(b)(2) violates the Constitution’s separation-of-powers principles.
3) (13-1025) (1:13-cv-01025-RCL), 14-5243)
Perry Capital LLC v. Jacob Lew …… Common & Preferred, Derivative
CLAIM: Derivative APA, 3th amendment
District Court, District of Columbia
Judge: Royce C. Lamberth
https://www.courtlistener.com/docket/4212073/perry-capital-llc-v-lew/
https://www.courtlistener.com/docket/3054444/perry-capital-llc-v-jacob-lew/
Court of Appeals for the D.C. Circuit
On appeal before Judge: Brown, Millett, Ginsburg
Consolidated with:
1:13-cv-01053, 14-5254(Fairholme)
1:13-cv-01439, 14-5260 (Arrowood),
1:13-cv-01288, 14-5262 (In re: Fannie Mae/Freddie Mac Senior)
Feb 21, 2017 following claims are remanded to the district court for further proceedings.
a) breach of contract and breach of the implied covenant of good faith and fair dealing regarding liquidation preferences
b) and the claim for breach of the implied covenant with respect to dividend rights, which claims we remand (to Lamberth) for further proceedings consistent with this opinion
c) it also found We hold that the stockholders’ statutory claims are barred by the Recovery Act’s strict limitation on judicial review. See 12 U.S.C. § 4617(f).
d) claims against FHFA and the Companies, some are barred because FHFA succeeded to all rights, powers, and privileges of the stockholders under the Recovery Act, id. § 4617(b)(2)(A)
https://www.govinfo.gov/content/pkg/USCOURTS-caDC-14-05243/pdf/USCOURTS-caDC-14-05243-1.pdf
July 1, 2020 complete fact discovery by January 22, 2021, trial date is set May 16, 2022
4) 13-1053 (14-5254) (1:13-cv-01053)
Fairholme Fund, Inc. v. FHFA……Preferred, Direct & Derivative
Honorable: Royce C. Lamberth
Claim: 3th amendment, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing
District Court for the District of Columbia
https://www.courtlistener.com/docket/4212077/fairholme-funds-inc-v-federal-housing-finance-agency/
July 12, 2019 Request For Production of documents (RFP) Treasury should produce (page 39-46)
https://gselinks.com/wp-content/uploads/2019/07/13-cv-01053-103.pdf
Nov 18, 2019 RFPs 1-8, 10-14, 15(a)-(d), 16-26, and 29-30. Granted, Treasury should produce these documents
https://www.courtlistener.com/recap/gov.uscourts.dcd.160910/gov.uscourts.dcd.160910.112.0.pdf
July 1, 2020 complete fact discovery by January 22, 2021, trial date is set May 16, 2022
5) 13-1288 (1:13-mc-01288)
In re Fannie Mae/Freddie Mac Senior Preferred Stock Purchase Agreement
Class Action Litigations …. Common & Preferred, Class Action, Direct & Derivative, Trial by Jury
Honorable: Royce C. Lamberth
District Court for the District of Columbia
Direct claim, breaches of contract, breaches of the implied
covenant of good faith and fair dealing, breaches of fiduciary duties,
and violations of Delaware and Virginia law governing dividends
If the Direct claims are denied it also claims these Derivative: breaches of fiduciary duty, compensatory damages and disgorgement, breached the terms of the certificates of designation and the implied covenant of good faith and fair dealing, appropriate equitable and injunctive relief to remedy breaches of contract, breaches of the implied covenant of good faith and fair dealing, breaches of fiduciary duty, and violations of Delaware and Virginia Corporate law, including rescission of the Third Amendment. https://www.courtlistener.com/recap/gov.uscourts.dcd.163155/gov.uscourts.dcd.163155.71.0.pdf
https://www.courtlistener.com/docket/4212341/in-re-fannie-maefreddie-mac-senior-preferred-stock-purchase-agreement/
The Class:
6) N. Bradford Isbell ....... Common
7) Michelle M. Miller ...... Common
8) Charles Rattley ………… Common
9) Timothy J. Cassell ...... Common
10) 111 John Realty Corp… Preferred
11) United Equities Commodities Com ….. Preferred
12) 1:13-cv-01149 Joseph Cacciapalle ..... Preferred
13) 1:13-cv-01421 Marneu Holdings, Co .. Preferred
14) 1:13-cv-01169 American European Insurance Co ... Preferred
15) 1:13-cv-01443 Barry P. Borodkin ....... Preferred
16) 1:13-cv-01094 Mary Meiya Liao ....... Preferred
July 1, 2020 complete fact discovery by January 22, 2021, trial date is set May 16, 2022
17) 13-1439 (1:13-cv-01439)
Arrowood Indemnity Company v. Fannie Mae……Preferred, Direct & Derivative
Honorable: Royce C. Lamberth
Claim: 3th amendment, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing
District Court for the District of Columbia
https://www.courtlist ener.com/docket/6995674/arrowood-indemnity-company-v-federal-national-mortgage-association/
July 1, 2020 complete fact discovery by January 22, 2021, trial date is set May 16, 2022
18) 16-3113 (4:16-cv-03113)( 17-20364)
Patrick J Collins v. Lew …………………….…Common & Preferred, Derivative
Honorable: Judge Nancy F Atlas
District Court, S.D. Texas
Claim: “for cause” separation of powers §?4512(b)(2)
1) are not in accordance with and violate HERA within the meaning of 5 U.S.C. § 706(2)(C)
2) that Treasury acted arbitrarily and capriciously within the meaning of 5 U.S.C. § 706(2)(A)
3) by executing the Net Worth Sweep, and that FHFA’s structure violates the separation of powers
https://www.courtlistener.com/docket/4533994/collins-v-lew/
Court of Appeals for the Fifth Circuit:
Before Judge Stewart, Haynes and Willett
https://www.courtlistener.com/docket/6179579/patrick-collins-v-steven-mnuchin-secretary/
July 16, 2018 Conclusion 5th circuit:
We AFFIRM the district court’s order granting the Agencies’ motions to dismiss the Shareholders’ APA claims because such claims are barred by 12 U.S.C. § 4617(f).(no court may take any action)
We REVERSE the district court’s order granting the Agencies’ motion for summary judgment regarding the Shareholders’ claim that the FHFA is unconstitutionally structured in violation of Article II and the Constitution’s separation of powers, and we REMAND to the district court with instructions to enter judgment declaring the “for cause” limitation on removal of the FHFA’s Director found in 12 U.S.C. § 4512(b)(2) violates the Constitution’s separation-of-powers principles.
The 5th circuit remanded this back to Judge Nancy F Atlas in District Court, S.D. Texas
http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV0.pdf
https://www.courtlistener.com/pdf/2018/07/16/patrick_collins_v._steven_mnuchin_secretar.pdf
Sept 25, 2019 Petition filed in SCOTUS
19) 17-497 (1:17-cv-00497)
Rop v. Federal Housing Finance agency…….Common & Preferred, Derivative
Honorable: Paul L. Maloney
District Court, W.D. Michigan
Claim: voiding 3th amendment & “for cause” and striking down HERA’s:
12 U.S.C. § 4511(a) Establishment
12 U.S.C. § 4512(b)(2) Term (5th circuit found it violates the separation of powers)
12 U.S.C. § 4617(a)(7) Agency not subject to any other Federal agency
https://www.courtlistener.com/docket/13521280/rop-v-federal-housing-finance-agency/
Sept 27, 2019 Notice of supplemental authority concerning Collins v. Mnuchin
http://www.glenbradford.com/wp-content/uploads/2019/09/17-cv-00497-0064.pdf
July 14, 2020 FHFA advises count I and Count II in Collins are identical to the Rop lawsuit
Count I Rop: Violation of the President’s Constitutional Removal Authority Against FHFA as Both Regulator and Conservator and Treasury
Count II Rop: Violation of the Separation of Powers Against FHFA as Both Regulator and Conservator and Treasury
20) 18-2506 (17-2185) (0:17-cv-02185)
Atif F. Bhatti vs. FHFA……………Common & Preferred, Derivative
Honorable: Patrick Joseph Schiltz
District Court, D. Minnesota
Claim: 3th amendment & “for cause” striking down Hera’s provisions:
12 U.S.C. § 4511(a) Establishment
12 U.S.C. § 4512(b)(2) Term (5th circuit found it violates the separation of powers)
12 U.S.C. § 4617(a)(7) Agency not subject to any other Federal agency
12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
https://www.courtlistener.com/docket/7379258/bhatti-v-federal-housing-finance-agency-the/
October 15, 2019 Oral arguments On appeal in the 8th circuit, The court strives to issue the opinion within 90 days after oral Argument
July 14, 2020 Bhatti advices the court it can no longer be credibly argued that FHFA’s structure is
constitutional.
21) 18-3478 (2:18-cv-03478)(2:18-cv-03478-NIQA)
Wazee Street Opportunities v. United States………Common, Class action, Derivative, Jury Demand
Honorable: Nitza I Quinones Alejandro
District Court, E.D. Pennsylvania
Claim: 3th amendment & “for cause” striking down Hera’s provisions:
12 U.S.C. § 4511(a) Establishment
12 U.S.C. § 4512(b)(2) Term (5th circuit found it violates the separation of powers)
12 U.S.C. § 4617(a)(7) Agency not subject to any other Federal agency
12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
https://www.courtlistener.com/docket/7681282/wazee-street-opportunities-fund-iv-lp-v-the-federal-housing-finance-agency/
Oct 3, 2019 Waiting on Collins, document 38 Supplemental authority filed by Defendant ….. in the matter of Collins v. Mnuchin, No. 17-20364, now 19-422 / 19-563)
July 15, 2020 FHFA advices Counts I and II Wazee are identical to the separation of powers in Collins
Counts I Wazee: Violation Of The President's Constitutional Removal Authority Against FHFA, As Regulator And Conservator, And Treasury
Counts II Wazee: Violation Of The Separation Of Powers Against FHFA, As Regulator And Conservator, And Treasury
http://www.glenbradford.com/wp-content/uploads/2020/07/18-cv-03478-0042.pdf
https://gselinks.com/wp-content/uploads/2018/08/18-cv-03478-0001-Complaint-8-20-18.pdf
July 20, 2020 judge Alejandro advices it keeps on staying after 9 months ~Until - Set/Clear Flags AND Suspense Order
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Cases in the U.S. Court of Federal Claims (Sweeney)
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22) 20-1912 (20-121)(20-122)(2020-121)(2020-122)(13-465C)(1:13-cv-00465) (17-1122)(17-104)
Fairholme Funds, Inc. v. United States………..Common & Preferred, Direct & Derivative
Honorable: Margaret M. Sweeney
United States Court of Federal Claims
https://www.courtlistener.com/docket/4198608/fairholme-funds-inc-v-united-states/
Claim: **SEALED** 413 AMENDED COMPLAINT (Entered: 03/08/2018)
Redacted version without coercion attacks available at:
https://www.docketbird.com/court-documents/Fairholme-Funds-Inc-et-al-v-USA/REDACTED-DOCUMENT-filed-by-ACADIA-INSURANCE-COMPANY-ADMIRAL-INDEMNITY-COMPANY-ADMIRAL-INSURANCE-COMPANY-ANDREW-T-BARRETT-BERKLEY-INSURANCE-COMPANY-BERKLEY-REGIONAL-INSURANCE-COMPANY-CAROLINA-CASUALTY-INSURANCE-COMPANY-CONTINENTAL-WESTERN-INSURANCE-CO/cofc-1:2013-cv-00465-00422
March 9, 2020 the interlocutory appeal was granted the
CFC identified six “controlling questions of law” raised by its order, the first three of
which pertain to the CFC’s decision to dismiss Petitioners’ direct claims:
(1) Whether the court lacks subject-matter jurisdiction over plaintiffs’ direct
claims for breach of fiduciary duty and breach of implied-in-fact contracts.
(2) Whether plaintiffs who purchased stock in Fannie and Freddie after the
PSPA amendments lack standing to pursue their direct claims.
(3) Whether plaintiffs lack standing to pursue their self-styled direct claims
because those claims are substantively derivative in nature.
The last three controlling questions identified by the CFC related to its decision
to deny the motion to dismiss Petitioners’ derivative claims:
(4) Whether plaintiffs have standing to assert derivative claims notwithstanding HERA’s succession clause. (Fairholme & Fisher)
(5) Whether the [FHFA-as-conservator’s] actions are attributable to the United States such that the court possesses subject-matter jurisdiction to entertain plaintiffs’ derivative takings and illegal exaction claims. (Fairholme & Fisher)
(6) Whether plaintiffs’ allegations that the FHFA entered into an implied-in-fact contract with the Enterprises to operate the conservatorships for shareholder benefit fail as a matter of law.
http://www.glenbradford.com/wp-content/uploads/2020/03/20-121-0002.pdf
June 18, 2020 IT IS ORDERED THAT:
(1) The petitions are granted. This case is transferred to the regular docket. The appeals will be consolidated. Fairholme’s appeal will be designated as the lead appeal, and the government’s appeal will be designated as a cross-appeal. Fairholme’s opening brief is due within 60 days of the date of filing of this order (Aug 18, 2020)
(2) Owl Creek’s motion is granted to the extent that the amicus brief is accepted for filing. Any request for fur-ther relief from the court should be made after docketing.
The following List Of Fannie Mae and Freddie Mac Shareholder Suits are Pending In The Court Of Federal Claims awaiting a decision in the Fairholmes interlocutory appeal, with below each group their stand on the interlocutory appeal, and further replies
23) 13-466C Joseph Cacciapalle ………..………… Preferred, Class Action, Direct*
https://www.courtlistener.com/docket/4198610/cacciapalle-v-united-states/
June 26, 2020 The court lacks jurisdiction to entertain plaintiffs’ judicial takings claim and their fiduciary duty claim. Further, plaintiffs lack standing to bring their contract claims due to the absence of privity (relation between two parties that is recognized by law) with the United States, and lack standing to bring their nominally direct takings, illegal-exaction, and fiduciary duty claims because the nature of these claims is derivative, not direct. The court therefore GRANTS defendant’s motion to dismiss
July 17, 2020 hereby appeals to the United States Court of Appeals for the Federal Circuit from the Opinion and Order [ECF No. 105] and Judgment [ECF No. 106]
24) 13-496C American European Insurance.…. Preferred, Class Action, Direct
https://www.courtlistener.com/docket/4198611/american-european-insurance-company-v-united-states/
25) 13-542C Francis J. Dennis ………………….…. Preferred
March 27, 2020 above 3 Plaintiff’s think none of their counts should be dismissed
26) 13-385C Washington Federal v. United States . Common & Preferred, Class Action, Direct*
https://www.courtlistener.com/docket/4198605/washington-federal-v-united-states/
April 2, 2020 Plaintiff argues None of the claims in Fairholme apply to their case
April 16, 2020 the government thinks:
A) Fannie Mae And Freddie Mac Shareholders Lack Standing To Assert Substantively-Derivative Claims As Direct Claims
B) The Court Lacks Jurisdiction To Review The Merits Of The Enterprises’ Placement In Conservatorship
C) The Washington Federal Plaintiffs May Not Pursue Derivative Claims
July 9, 2020 The court must dismiss plaintiffs’ claims for lack of standing, If plaintiffs had asserted derivative claims in their amended complaint, the “conflict of interest” holding in First Hartford would have aided plaintiffs in their quest to establish standing. But they did not do so
opinion and order:
https://www.courtlistener.com/recap/gov.uscourts.uscfc.28070/gov.uscourts.cofc.28070.100.0.pdf
(first amended complaint:
https://www.courtlistener.com/recap/gov.uscourts.uscfc.28070/gov.uscourts.uscfc.28070.70.0_1.pdf)
27) 13-608C Bryndon Fisher (FNMA) .........….. Common Derivative*
https://www.courtlistener.com/docket/4198614/fisher-v-united-states/
June 11, 2020 interlocutory appeal process Granted on following
(1) Whether plaintiffs have standing to assert derivative claims notwithstanding HERA’s succession clause. (Question 4 in Fairholme)
(2) Whether the FHFA-C’s actions are attributable to the United States such that the court possesses subject-matter jurisdiction to entertain plaintiffs’ derivative takings and illegal exaction claims. (Question 5 in Fairholme)
28) 14-152C Bruce Reid (FMCC) …………………… Common Derivative*
https://www.courtlistener.com/docket/7737030/reid-v-united-states/
May 18, 2020 Fisher/Reid file motion to certify interlocutory appeal
June 4, 2020 Fairholme plaintiffs’ amicus brief in support of neither party
June 25, 2020 Plaintiffs delivered their petition to the Federal Circuit asking to pursue interlocutory appeal
29) 13-672C Erick Shipmon……..…………………… Common Derivative
https://www.courtlistener.com/docket/4198615/shipmon-v-united-states/
March 27, 2020 above 3 Plaintiff’s think their claim is substantially the same as Fairholme’s
April 7, 2020 TRANSCRIPT of proceedings held on March 5, 2020 before Chief Judge Margaret M. Sweeney. Total No. of Pages: 1-77. Release of Transcript Restriction set for 7/6/2020.
30) 13-698C Arrowood Indemnity Company . Preferred Direct*
April 6, 2020 Plaintiff’s think none of the Fairholme counts apply to their case
May 15, 2020 the court dismisses plaintiffs’ claims because it lacks jurisdiction to entertain their fiduciary duty and implied-in-fact-contract claims, and plaintiffs lack standing to pursue any of their claims. The court therefore GRANTS defendant’s motion to dismiss.
May 15, 2020 waiting on appeal
31) 14-740C Louise Rafter .........…………………. Common Direct & Derivative*
https://gselinks.com/Court_Filings/Rafter/14-740-0027.pdf
March 31, 2020 plaintiff continue to stay until 21 days following resolution of Fairholme
32) 18-281C Owl Creek Asia I L.P...........………. Preferred, Direct *
33) 18-369C Akanthos Opportunity Master Fund .. Preferred, Direct *
June 8, 2020 the court DISMISSES plaintiff’s complaint because the court lacks jurisdiction to entertain its fiduciary duty and implied-in-fact-contract claims, and plaintiff lacks standing to pursue any of its claims. https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2018cv0369-60-0
34) 18-370C Appaloosa Investment .........……. Preferred, Direct *
35) 18-371C CSS LLC ……………………………………. Preferred, Direct *
36) 18-529C Mason Capital L.P...........………….. Preferred, Direct *
March 26, 2020 above 5 plaintiffs don’t want to give up the direct claims and doubt the counts in Fairholme properly represent their counts, and point out the law was breached
June 8, 2020 again a very damaging ruling for the government but still the case is dismissed as:
(FHFA can) “take any action authorized by [12 U.S.C. § 4617(b)),
which (it) determines is in the best interest of the (Enterprise) or the (FHFA)(Itself) .”
http://www.glenbradford.com/wp-content/uploads/2020/06/18-00281-0064.pdf
an appeal can be expected within 60 days
37) 18-1124C Wazee Street……………….………… Common, Class Action, Direct & Derivative
38) 18-1150C Highfields Capital………………….. Common & Preferred, Direct
https://www.pacermonitor.com/public/case/25303845/HIGHFIELDS_CAPITAL_I_LP_et_al_v_USA Related To: Fairholme, Arrowood, Cacciapalle, 13-469, Dennis, Wazee Street, Fisher, Shipmon, Reid, Rafter, Owl Creek, Appaloosa, Akanthos, Css, Mason, 683 Cap. Partners, Patt
39) 18-711C 683 Capital Partners………..……….. Common, Preferred, Direct
40) 18-712C Joseph S. Patt………………………..… Preferred, Direct
41) 18-1226C Perry Capital LLC……………………. Common & Preferred, Direct & Derivative
42) 18-1155C CRS Master Fund LP…..…………… Preferred, Direct
Above 6 Plaintiffs are staying
43) 18-1240C Quinn Opportunities Master LP … Preferred, Direct
May 19, 2020 - Status unknown
44) 20-737C Joshua J. Angel v United States Treasury ….. Preferred, Direct, Class action
June 8, 2020 complaint filed, prayer for relief: Award $16 billion in compensatory damages to the Class against Treasury; C, Award prejudgment and post-judgment interest on those compensatory damages
* Jones Days plaintiffs
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Cases below are dismissed (without ruling on merit)
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45) 19-7062 (1:18-cv-01142) (18-1142)
Joshua J. Angel v. BOD of FNMA,FMCC & FHFA-C ….….Preferred, Direct
Previously assigned to: Honorable: Royce C. Lamberth
https://www.courtlistener.com/docket/6880882/angel-v-federal-home-loan-mortgage-corporation/
Claim: Breach of quarterly BOD duties, breach of contract, breached the implied covenant of good faith and fair dealing, breach of contractual rights for dividends, Breach of implicit guaranty on Junior Preferred dividends
District Court for the District of Columbia
https://www.courtlistener.com/docket/26534/joshua-angel-v-federal-home-loan-mortgage-co/
On appeal Judges Henderson, Griffith and Wilkins decided Mr. Angel’s appeal without oral argument
They decided april 24, 2020: “We affirm. The district court properly dismissed Angel’s initial complaint as time-barred.” “ ORDERED and ADJUDGED that the decision of the district court be AFFIRMED”
CASE LOST ON: STATUTE OF LIMITATIONS
http://www.glenbradford.com/wp-content/uploads/2020/04/19-7062-1839674.pdf
46) Arnetia Robinson v. Fed. Housing Fin. Agency (6th Cir. 2017)
(15-109, 7:15-cv-00109, 7:15-cv-109, 16-6680 )
CLAIM: Derivative, APA 3th amendment
District Court, E.D. Kentucky
Judge: Karen K. Caldwell
https://www.courtlistener.com/docket/4510286/robinson-v-federal-housing-finance-agency/ ??
On appeal before judge: Batchelder, Gibbons, and Cook
https://www.courtlistener.com/opinion/4445969/arnetia-robinson-v-fed-housing-fin-agency/
CASE LOST ON: HERA (“Congress is the proper governmental body to address poor legislative decisions” )
https://www.courtlistener.com/opinion/4445969/arnetia-robinson-v-fed-housing-fin-agency/
47) David J. Voacolo V. Federal National Mortgage Association (D.N.J. 2017)
(1:16-cv-01324)(16-1324)(17-5667)
https://www.courtlistener.com/docket/4214876/voacolo-v-federal-national-mortgage-association-fannie-mae/
District Court, D. New Jersey,
CLAIM: Derivative & Direct, APA 3th amendment, Damages (shares would have value of $35.- as of Aug-2017) https://gselinks.com/Court_Filings/Voacolo2/17-cv-05667-0001.pdf
Judge: Rudolph Contreras
On appeal https://www.courtlistener.com/docket/6354770/voacolo-v-fannie-mae/
Judge: Brian R. Martinotti
CASE LOST ON: Voacolo’s failure to oppose the motion
https://gselinks.com/Court_Filings/Voacolo2/17-cv-05667-0020.pdf
48) Saxton v. Federal Housing Finance Agency (N.D. Iowa 2015)
(15-0047) (1:15-cv-00047)(17-1727)
CLAIM: Derivative & Direct, APA 3th amendment, Damages
District Court, N.D. Iowa
Judge: Linda R. Reade
https://www.courtlistener.com/docket/5391361/saxton-v-federal-housing-finance-agency/
On appeal before judge: Benton, Kelly, and Stras
CASE LOST ON: HERA (A troublesome verdict for the government “12 U.S.C. § 4617(b)(2)(J)(ii)
(emphasis added). That is no typo” ” Congress, intentionally or otherwise, may have created a MONSTER by handing an agency breathtakingly broad powers and insulating the exercise of those powers from judicial review”)
12 U.S.C. § 4617(b)(2)(J)(ii) take any action authorized by this section, which the Agency determines is in the best interests of the regulated entity or the Agency(FHFA).
https://cases.justia.com/federal/appellate-courts/ca8/17-1727/17-1727-2018-08-23.pdf?ts=1535038225)
49) Jacobs v. Federal Housing Finance Agency (D. Del. 2015)
(1:15-cv-00708)(15-708)(17-3794)
CLAIM: Derivative & Direct, 3th amendment, Damages
District Court, D. Delaware
Judge: Gregory Moneta Sleet
https://www.courtlistener.com/docket/4220900/jacobs-v-federal-housing-finance-agency/
https://www.courtlistener.com/docket/7297926/david-jacobs-v-federal-housing-finance-agency/
On appeal Before judge: Hardiman, Krause, and Bibas
CASE LOST ON: HERA
http://www.glenbradford.com/wp-content/uploads/2018/11/17-3794-0033.pdf
50) Continental Western Insurance Company v. FHFA (District Court, S.D. Iowa, 2014)
(14-42)( 4:14-cv-00042)
CLAIM: Derivative & Direct, APA 3th amendment, Damages
Judge: Robert W. Pratt
District Court, S.D. Iowa
https://www.courtlistener.com/docket/4247079/continental-western-insurance-company-v-the-federal-housing-finance-agency/
CASE LOST ON: HERA
https://www.courtlistener.com/recap/gov.uscourts.iasd.51533.68.0.pdf
51) Christopher Roberts v. FHFA (7th Cir. 2018)
(16-2107)(1:16-cv-02107)(17-1880)
CLAIM: Derivative, 3th amendment, Treasury’s securities declared invalid
Judge: Edmond E. Chang
District Court, N.D. Illinois
https://www.courtlistener.com/docket/5642392/roberts-v-the-federal-housing-finance-agency/
On appeal before judge Wood, Bauer and Easterbrook
CASE LOST ON: HERA disempowers courts and existing stockholders, directors, and officers https://www.courtlistener.com/opinion/4495195/christopher-roberts-v-fhfa/
52) Rafter v. Department Of The Treasury 14-1404 (1:14-cv-01404)
District Court, District of Columbia
Judge: Royce C. Lamberth
https://www.courtlistener.com/docket/4212962/rafter-v-department-of-the-treasury/
https://www.valueplays.net/2015/01/21/lambreth-rules-pershing-v-treasury/
CASE LOST ON: Voluntary Dismissal one business day before Defendants dispositive motions
https://www.courtlistener.com/recap/gov.uscourts.dcd.167678.20.0.pdf
53) Pagliara v. Federal National Mortgage Association (FNMA) (1:16-cv-00193)
District Court, D. Delaware
Judge: Gregory Moneta Sleet
https://www.courtlistener.com/docket/4499522/pagliara-v-federal-national-mortgage-association/
CASE LOST ON: Failure to state a claim upon which relief can be granted
http://courts.delaware.gov/Opinions/Download.aspx?id=257440
54) Pagliara v. Federal Home Loan Mortgage Corporation (FMCC) (1:16-cv-00337)
District Court, E.D. Virginia
Judge: James Chris Cacheris
CASE LOST ON: The Court has little confidence Pagliara seeks these records for valuation purposes
https://www.courtlistener.com/docket/4536190/pagliara-v-federal-home-loan-mortgage-corporation/
55) In re: Federal Home Loan Mortgage Corporation Derivative Litigation (1:08-cv-00773-LMB-TCB)
Judge: Leonie M. Brinkema
The Class:
1:08-cv-773, Adams Family Trust v. Syron
1:08-cv-849, Louisiana Municipal Police Employees Retirement System v. Syron
1:08-cv-1247, Bassman v. Syron
https://www.courtlistener.com/docket/4832137/in-re-federal-home-loan-mortgage-corporation-derivative-litigation/
https://www.docketbird.com/court-documents/Federal-Housing-Finance-Agency-v-Hsbc-North-America-Holdings-Inc-et-al/Exhibit/nysd-1:2011-cv-06189-00152-037
CASE LOST ON: HERA, the sweeping language of HERA, which not only transfers "all rights, titles, powers, and privileges" of stockholders to the FHFA, but also bars a court from "restraining or affect(ing) the exercise of powers or functions of the (FHFA) as a conservator or a receiver
Sisti v. Federal Housing Finance Agency
Case number: 17-005 (90-1762)(17-042)
Honorable: John James McConnell, Jr
District Court, D. Rhode Island
Claim: FHFA, Fannie Mae, and Freddie Mac are government entities
https://www.courtlistener.com/docket/6900150/sisti-v-federal-housing-finance-agency/
March 24, 2020 Stipulation ~Until - Set Scheduling Order Deadlines The Parties report to the Court that they are currently re-engaged in negotiations aimed at resolving the action. In order to afford the Parties with sufficient time to complete these discussions and discovery (if necessary), the Parties jointly request the Court extend the scheduling order deadlines by three (3) months to the following:
Factual Discovery to close by 6/30/2020;
Plaintiff's Expert Disclosures shall be made by 7/30/2020;
Defendants' Expert Disclosures shall be made by 8/28/2020;
Expert Discovery to close by 9/30/2020; and
Dispositive Motions due by 10/30/2020.
https://www.courtlistener.com/recap/gov.uscourts.rid.41482/gov.uscourts.rid.41482.53.0.pdf
When decided FHFA, FNMA and FMCC are government entities for matters of constitutional claims of due process and will confirm or not the paragraph nobody can take action while in conservatorship.
https://ecf.rid.uscourts.gov/cgi-bin/show_public_doc?2017cv0005-39
Seila law v. Consumer Financial Protection bureau (CFPB)
Case number: 19-7 (17-56324)
Court: Supreme Court of the United States
Argued March 3, 2020—Decided June 29, 2020
(1) “for-cause” removal protection is unconstitutional
(2) 12 U.S.C. §5491(c)(3) can be severed from the Dodd-Frank Act
https://www.supremecourt.gov/opinions/19pdf/19-7_n6io.pdf
Yes the court (Sweeney) confirmed the claim is basically the same as the Fairholme direct claim, so it will be appealed, but the WF is also one of the most difficult and complicated lawsuits the FHFA faces, and simply cannot be won by defendants, although they may not get the 41B refund it will set aside the conservatorship in full, WF is a master piece
Take for instance :
221. HERA did not authorize the Government to assert a conservatorship over either
Fannie Mae or Freddie Mac at the time the conservatorships were imposed over them.
https://www.courtlistener.com/recap/gov.uscourts.uscfc.28070/gov.uscourts.uscfc.28070.70.0_1.pdf
indeed FHFA has no authority over well capitalized companies, it does over severely undercapitalized (4617(a)(3)(J), and it does by consent 4617(a)(3)(I) however it cannot get consent if the company was not undercapitalized in any way, and therefore to prevent abuse, it is not allowed, but in this case they did abuse this power and therefore needs to be straightened out it is illegal for the government to do as it pleases
The FHFA fails to admit Fannie and Freddie are private shareholder owned companies, somehow they think they have a saying in in who owns the company, while they do have a lot of things they can demand, they can only be the owner of the companies if they buy back the shares that are issued
The win in Washington Federal v. United States lawsuit
Sweeney in the latest ruling dismissed the Washington federal case, however she found WF claims of a taking / illegal exacted are basically the same as Fairholme direct claims, and in D. WF clearly asks Finding Defendants HAS taken and/or exacted plaintiff’s property,
Then on appeal D. is a win but E. cannot be granted
Amended Prayer for Relief:
D. Finding that the Defendant has taken and/or illegally exacted Plaintiffs’ and the
Classes private property in violation of the Due Process and Takings Clauses of the United States
Constitution;
E. Determining and awarding Plaintiffs and the Classes damages suffered by them by
virtue of the Defendant’s taking and/or illegal exaction in the amount of $41 billion, or some other
amount to be determined at trial;
https://www.courtlistener.com/recap/gov.uscourts.uscfc.28070/gov.uscourts.uscfc.28070.70.0_1.pdf
(page13) B. Plaintiffs’ claims actually belong to the Enterprises.
Having determined that plaintiffs’ allegations, for the purposes of the standing inquiry, do NOT materially differ from those advanced in support of the direct takings and illegal-exaction claims in Fairholme, http://www.glenbradford.com/wp-content/uploads/2020/07/13-385-0100.pdf
Washington Federal v. United States II
By dismissing the WF case with all the redacted documents it would be very hard to not unseal them ones dismissed, the people have a right to know what happened, as when it is dismissed, who cares? they have nothing to hide right?
https://www.law.cornell.edu/uscode/text/5/552
now the proposed dismissal is send to the government for redactions, but if dismissed they have more trouble ahead, Sweeney is forcing them to take a stand
Agree Undoubtfully you cannot act contrary to statute, this would make a mess of the laws in place
Washington Federal v. United States
It is already established in Seila the “for cause “is unconstitutional, then the FHFA is no longer an independent agency as it is at will of the president, but this also means 4617(f) must be stricken as it forbids judicial review and the separation of powers does not allow a roadblock between judicial power and the power of the president, so 4617(f) is unconstitutional according to the separation of powers
12 U.S.C. §4617(b)(2)(A)(i) succeed to all rights, titles, powers, and privileges(succession clause) in full :
(2)General powers
(A)Successor to regulated entity The Agency shall, as conservator or receiver, and by operation of law, immediately succeed to—
(i) all rights, titles, powers, and privileges of the regulated entity, and of any stockholder, officer, or director of such regulated entity with respect to the regulated entity and the assets of the regulated entity
But then if it precludes shareholders for bringing a lawsuit, who must file the lawsuit against the unlawful NWS? Who is in control here and who controls? right the FHFA, so if it is precluded, the FHFA failed to bring a lawsuit, but even worse it agreed to the unlawful NWS in the first place, but is has fiduciary duty toward the conservatee and that makes the FHFA accountable for the NWS action, while a conservator statute is only to preserve and conserve and not giving away stuff for free, so it acted outside their statute and that is why we have the separation of powers in the first place to prevent abuse, the FHFA director(s) did something that is not allowed by law, but we both agree on that
The fiduciary duty is direct and indirect, the FHFA has a fiduciary duty towards Fannie and Freddie always, as Fannie and Freddie are the conservatee, however the FHFA also does have fiduciary duty towards shareholders, as the FHFA only has an implied-in-fact-contract, that the BOD only could have agreed to as the shareholder outcome would be positive, otherwise the FHFA would not have established any contract with Fannie and Freddie
The 6.7 and 6.12 of the SPSPA are discussed before in post 593743 but it will come back time and time again, a conservator should act in the best interest of the companies and obviously but arguable they did not and were self-dealing without any consideration to the shareholders, the NWS was clearly outside this framework and doesn’t need a lot of imagination to understand that is not something a conservator can do to the conservatee https://www.law.cornell.edu/wex/conservatee
However by law as conservatee you can challenge the actions taking by your conservator, but the FHFA stepped in the shoes of Fannie and Freddie and also per the law it forbids Fannie and Freddie to take any action, but the FHFA did not challenge it, and that is a lack too, so to say it is a nothingburger does not really give thought to the scope of conservatorship, dividing the loot before it is established what the correct remedy is to end the conservatorship is not wise or logical, I understand most of us want this to be over, and figure a way out of this mess by stating to convert or heavy dilution mantras , but if we face the facts NOTHING so far that the FHFA has done contributes to the consent they probably received from the BOD (and keeps on hiding) or is logical as being a conservator, so all guesses are logical from a human point of view, but the shareholders first must see the facts on consent given to proceed to any resolution, the FHFA ONLY could have received consent from the BOD if the shareholders would survive (meaning not to be diluted by prefs on cost of the common or get away with a theft of shareholders ownership because they need to raise capital that FHFA thru a self-dealing contract confiscated and are allowed to per HERA and not per the law as conservator
The questions asked by Collins are of such an order that the facts surrounding the actions taken must be uncovered before the court can determine a remedy, so do they have a legal contract (implied-in-fact) and is the SPSPA a contract that logically will flow out of this implied-in-fact contact and is the NWS therefore logical and most importantly legal, spoiler alert, none of them are, then if SCOTUS comes to understand this, it rules in favor of plaintiffs, at least I see no other option as otherwise too much needs to be uncovered, self-dealing by 2 executive agencies that acted contrary to their statute is not something to be proud of as conservator and as “world class regulator” you will have a lot of explaining to do in the future, let alone it will achieve their mission in the future
The petition Collins filed in SCOTUS on sept 25, 2019
http://www.supremecourt.gov/DocketPDF/19/19-422/116983/20190925131502103_Collins%20Petition--PDFA.pdf
Identified these FHFA actions violate following statutory provisions:
Relief because of:
5 U.S.C. § 706(2)(C) hold unlawful and set aside agency action, findings, and conclusions found to be—in excess of statutory jurisdiction, authority, or limitations, or short of statutory right
5 U.S.C. § 706(2)(A) hold unlawful and set aside agency action, findings, and conclusions found to
be— arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law
Violated:
44 U.S.C. § 3502 (5) Term “independent agency” means the Board of Governors of the FHFA
12 U.S.C. § 4511(a) Establishment
12 U.S.C. § 4512(b)(2) Term
12 U.S.C. § 4516(f)(2) Not Government funds
12 U.S.C. § 4617(a) HERA empowered FHFA to appoint itself as the conservator
12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
12 U.S.C. § 4617(b)(2)(A)(i)(not J) Incidental powers (succession clause)
It sure is, the intension FHFA and Treasury both express is hopefull as one day the FHFA must be starting to realize it must act in the best interest of Fannie and Freddie as that is their SOLE job,
put in “sound and solvent condition”
30 minutes would not be enough, but I’m sure whatever point they want to make, will be in front of them and ventilated
No I don't, but I hope failure to state a claim
Washington Federal v. United States
On july 9, 2020 judge Sweeney entered a Sealed Opinion/Order AND Order on Motion to Dismiss - Rule 12(b)(1) and (6)
https://www.courtlistener.com/docket/4198605/washington-federal-v-united-states/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc
This case gets better by the day, can’t wait to see the UN-redacted documents ,
smart move from Judge Sweeney
13-385C Washington Federal v. United States . Common & Preferred, Class Action, Direct*
https://www.courtlistener.com/docket/4198605/washington-federal-v-united-states/
April 2, 2020 Plaintiff argues None of the claims in Fairholme apply to their case
April 16, 2020 the government thinks:
a) Fannie Mae And Freddie Mac Shareholders Lack Standing To Assert Substantively-Derivative Claims As Direct Claims
b) The Court Lacks Jurisdiction To Review The Merits Of The Enterprises’ Placement In Conservatorship
c) The Washington Federal Plaintiffs May Not Pursue Derivative Claims
Collins Mnuchin SCOTUS Lawsuits
1) 19-422 Patrick J Collins v. Mnuchin .… Common & Preferred, Derivative
2) 19-563 Mnuchin v. Patrick J Collins ……. Relates to all cases
COURT: SUPREME COURT of the United States
Judges: Roberts, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh,
Above 2 cases are consolidated
https://www.scotusblog.com/case-files/cases/collins-v-mnuchin/
https://www.scotusblog.com/case-files/cases/mnuchin-v-collins/
Collins Claim:
1) Whether FHFA’s structure violates the separation of powers; and
2) Whether the courts must set aside a final agency action that FHFA took when it was unconstitutionally structured and strike down the statutory provisions that make FHFA independent.
Collins identified the FHFA actions violate following statutory provisions:
5 U.S.C. § 706(2)(C) hold unlawful and set aside agency action, findings, and conclusions found to be—in excess of statutory jurisdiction, authority, or limitations, or short of statutory right
5 U.S.C. § 706(2)(A) hold unlawful and set aside agency action, findings, and conclusions found to be— arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law
44 U.S.C. § 3502 (5) Term “independent agency” means the Board of Governors of the FHFA
12 U.S.C. § 4511(a) Establishment
12 U.S.C. § 4512(b)(2) Term
12 U.S.C. § 4516(f)(2) Not Government funds
12 U.S.C. § 4617(a) HERA empowered FHFA to appoint itself as the conservator
12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
12 U.S.C. § 4617(b)(2)(A)(i)(not J) Incidental powers (succession clause)
Mnuchin claims:
1) Whether the statute’s anti-injunction clause, which precludes courts from taking any action that would “restrain or affect the exercise of powers or functions of the Agency as a conservator, 12 U.S.C. 4617(f) precludes a federal court from setting aside the Third Amendment.
2) Whether the statute’s succession—under which FHFA, as conservator, inherits the shareholders’ rights to bring derivative actions on behalf of the enterprises—precludes the shareholders from challenging the Third Amendment.
1) 12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause) is troublesome for the government as now both Treasury and FHFA are executive agencies who both have fiduciary duty towards Fannie and Freddie
PSPA 6.12. Non-Severability. Each of the provisions of this Agreement is integrated with and integral to the whole and shall not be severable from the remainder of the Agreement. In the event that any provision of this Agreement, the Senior Preferred Stock or the Warrant is determined to be illegal or unenforceable, then Purchaser may, in its sole discretion, by written notice to Conservator and Seller, declare this Agreement null and void, whereupon all transfers hereunder (including the issuance of the Senior Preferred Stock and the Warrant and any funding of the Commitment) shall be rescinded and unwound and all obligations of the parties (other than to effectuate such rescission and unwind) shall immediately and automatically terminate. https://www.investopedia.com/terms/v/voidable-contract.asp
2) 12 U.S.C. § 4617(b)(2)(A)(i) Incidental powers (succession clause) if 2 is correct why did the FHFA neglected to bring a lawsuits against Treasuries NWS? And would a contract that contains the NWS be Void ab initio (Void from the beginning) or considered self-dealing by 2 executive agencies
Yes it does matter, that is why the government is now in the process of settling the Sisti case, if Sisti is ruled upon, Sweeney can no longer act on the belief the “FHFA-C is not the government” and FHFA/ FHFA-C discussions fail or at least it doesn’t help in final resolution, the government on the other hand hopes this goes quietly down the road and nobody makes a thing about it
But to come back to the election I don’t think it makes a difference who wins, this process we are currently on cannot be stopped even if you want, if the courts find something the government has to react and even though it might not be their wish they still has to comply regardless of the intensions, as I understood from MC interview recently Mark still has a hard time defending the rules, so obviously after 4 years there are still a lot of people who are willing to act contrary to the constitution, It is not idea of elected people, no matter what side, you still have to follow the rule of law, but is says a lot about the dishonest behavior of the elected, so mark still has to convince the rules are the rules while he could be working on solving the problem, so al lot of energy is lost on defending, so mark has the same problem as plaintiff have, only what I do not understand that he is not stopping the fight with plaintiff (unless we are already in settlement and everybody needs to proceed as normal)
Sisti v. Federal Housing Finance Agency
Case number: 17-005 (90-1762)(17-042)
Honorable: John James McConnell, Jr
District Court, D. Rhode Island
Claim: FHFA, Fannie Mae, and Freddie Mac are government entities
https://www.courtlistener.com/docket/6900150/sisti-v-federal-housing-finance-agency/
March 24, 2020 Stipulation ~Until - Set Scheduling Order Deadlines
The Parties report to the Court that they are currently re-engaged in negotiations aimed at resolving the action.
I'm hopeful...
yes I did see the Amicus Brief by Blackwells
I also think everybody is on the same page only a matter of time now to construct an ending in this matter
Shortcut for Monday 19-422 Patrick J Collins v. Mnuchin SCOTUS
Issues under fire by plaintiffs in the 4 lawsuits that challenge the “for cause” removal already determined unconstitutional by SCOTUS in the Seila case
1) 5 U.S.C. § 706(2)(C) Scope of review (the reviewing court shall decide all relevant questions of law)
2) 12 U.S.C. § 4511(a) Establishment (independent Agency)
3) 12 U.S.C. § 4512(b)(2)TERM (for cause) (already unconstitutional)
4) 12 U.S.C. § 4516(f)(2) Not Government Funds ( assessments/outside appropriations act)
5) 12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)
6) 12 U.S.C. §4617(b)(2)(A)(i) succeed to all rights, titles, powers, and privileges(succession clause)
Some of the other issues that are inconsistent with each other or violate in other ways with 1-6:
A) 12 U.S.C. § 4617(b)(2)(D). (put in sound and solvent condition / preserve and conserve)
B) 5 U.S.C. § 706(2)(C), (D)hold unlawful and set aside agency action, that are arbitrary, capricious, an abuse of discretion, or not in accordance with law; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right
C) 12 U.S.C. § 4617(a) the Director may appoint the Agency as conservator
D) 12 U.S.C. § 4617(b)(2) appointed conservator for the purpose of reorganizing, rehabilitating
E) 12 U.S.C. § 4617(b)(2)(J) Incidental powers, conservator can exercise all powers and authorities specifically granted to conservators under this section and out of self-interest
F) 28 U.S.C. § 1331 The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
G) 44 U.S.C. § 3502(5) the term “independent regulatory agency” means the Board of Governors of the Federal Housing Finance Agency (FHFA)