The appointment to conservatorship problems is two-fold, the implied-in-fact contract holds the details surrounding the conservatorship and are sealed, so resolution/remedy will depend on what the meeting minutes/implied-in-fact state, the 2 options are:
1) The FHFA came in and coerced the BOD into conservatorship upon which they received the power in HERA and the BOD breach (by coercion) their fiduciary duty (this was Sweeney’s point acting like the MOB)
2) The FHFA came in said HERA gave them power under 12 U.S. Code § 4617(a)(2) / (3)(G) to start conservatorship and the BOD had to agree and did not breach their duty as they did not have any other option left, but the financials surrounding this event must be disclosed
Now the problem becomes a cluster of breaches
1) The BOD might have breached their fiduciary duty
2) The FHFA coerced the conservatorship
3) The financials that show “likely to incur loses” are sealed, and proven wrong, as only due DTA write down they incurred losses not because of solvency issues that would grant conservatorship
4) The FHFA in the implied-in-fact contract must state it will act in the best interest of the “people” and thus violates conservator statute “preserve and conserve”
5) The FHFA by entering into the implied-in-fact contract effectively took property, but if it pays damages they cannot re-sell the shares
6) The FHFA power granted by Congress is unconstitutional as the actions cannot be questioned by 12 U.S. Code § 4617(f) Limitation on court action
7) The provisions of HERA breach each other as the actions of the “at-will” director who has executive power, cannot be questioned 12 U.S. Code § 4617(f) legislative power
8) The Independence of FHFA is in question as the president has removal power and a single director operating this structure (independent/single) violates the constitution
9) The FHFA is independent and does not act in the best interest of the conservatee by common law, this precedent will have consequences for FHFA, new precedents, new agencies, and the constitution
10) The FHFA continues with the 3rd amendment while the companies are immensely profitable
11) The Conservatorship did not end because the FHFA allowed to siphon the profits of the companies, and the companies are not adequately capitalized because of the FHFA conservatorship
12) The FHFA sealed all the surroundings of the conservatorship and hoped to get away with it, but sooner or later they will become public and that (because of the misbehavior) will reveal the intent of the government
13) The FHFA entered into an implied-in-fact contract and a day later into the PSPA, the conditions however are a substitute for regulation, so it looks like the FHFA and Treasury set up a plan to enter, not because the companies needed money
14) The FHFA has Judicial power to appoint itself as conservator, it abused this power to accomplish their intent to restructure, absent meaningful need by the companies that they needed cash
15) The FHFA instructed Fannie and Freddie to create CSS and the CSP and the UMBS at an initial cost of $2B and an annual cost of $100M to later give away the company and give full rights to Fannie and Freddie instead, but more importantly, it instructed the companies to spent money on something that never is going to be used by PLMBS absent legislation
16) The FHFA breached the non-delegation doctrine that prevents derivative claims
17) The FHFA breached the private non-delegation doctrine for private interests
18) so did they eventually have the power to enter into conservatorship
These are only some of the problems the FHFA faces, the courts so far upheld this unconstitutional behavior, but the cracks become visible as the mess the FHFA made is ultimately a product of their own illegal behavior and not sustainable
