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Tuesday, September 13, 2022 2:55:35 AM
So, you don't even bother to go to the source, FHFA, and post the piece of paper with that mandate, which I'm sure that the FHFA would say that it's based on the law in force.
Don't worry! I will do it for you! There is a key regulation of the FHFA with the Final Rule "Conservatorships and Receiverships", effective July 20, 2011, that had the only purpose to clarify and be more transparent about the conservatorship. It simply copy/pasted what is written in the law and condified it in the Code of Federal Regulations. Crazy, right? In truth, it did it to sneak at the end the CFR1237.12 that added up another exception to the Restriction on Capital Distributions: if applied toward their recapitalization (in an escrow account obviously)
I quote these excerpts taken from the background section in this Final Rule, where the FHFA talks extensively about the dividend payments while in conservatorship:
Payment of dividends to shareholders during conservatorship.
Some commenters suggested that the rule should address the payment of dividends to shareholders during conservatorship. While FHFA as conservator may restrict dividends for safety and soundness reasons under the Safety and Soundness Act and the Bank Act, a regulated entity may generally pay dividends to shareholders only when it is adequately capitalized. It is unlikely that a regulated entity in conservatorship would be permitted to pay dividends while it is unable to meet its capital requirements.
It continues with:
the fact that the Safety and Soundness Act and HERA grant FHFA broad authority as Conservator to manage the conservatorship estate, including the authority to restrict capital distributions that would cause a regulated entity to become undercapitalized. As one of the primary objectives of conservatorship of a regulated entity would be restoring that regulated entity to a sound and solvent condition, allowing capital distributions to deplete the entity's conservatorship assets would be inconsistent with the agency's statutory goals, as they would result in removing capital at a time when the Conservator is charged with rehabilitating the regulated entity. Under the Safety and Soundness Act and HERA, FHFA has a statutory charge to work to restore a regulated entity in conservatorship to a sound and solvent condition, and to take any action authorized by this section, which FHFA determines to be in the best interests of the regulated entity or FHFA. This express statutory grant of authority grants FHFA as Conservator authority to address capital distribution and other claims against the conservatorship estate in the manner that it deems appropriate.
Adding another excerpt from the law:
§?1229.13
Definitions.
For purposes of this subpart:
Capital distribution means—
(1) Any dividend or other distribution in cash or in kind made with respect to any shares of, or other ownership interest in, an Enterprise,
So, the dividend payments are restricted by law and there is no such thing as "broad authority" of FHFA, as it has to comply with the statutes.
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