Robert and FFF, thank you both for your service. Robert for all your reporting and updates, and FFF for being a Plaintiff in a prior case. I believe the root cause of our dilemma is a failed legal strategy by the original Perry, Fairholme and other merged Plaintiffs. Congress codified what is sometimes referred to as “The presumption of correctness” into HERA when they barred Judicial relief in connection to the FHFA’s actions as a Conservator. This is similar to trying to appeal a local property tax revaluation. In many states the Court presumes the tax assessor is correct and so ignores most of the taxpayer appeal. Chevron accomplishes the same thing with federal agencies. But HERA is worse as it codifies and tells the Court that they have no say.
Perry, Fairholm and all the other Plaintiffs made the fatal error to not challenge the SPSPA using what I believe are violations of the Charter Act and the Safety and Soundness Act that would nullify the SPSPA outright. Further arguments could be made that the 200 billion commitment where not authorized by The Appropriations act as they werent used to purchase obligations or securities but rather used as a tax payer debt obligation of the GSEs with a rate that also violates the Charter. Potential violations of the CFO act leading to 14th amendment violations could have been argued as well as MQD issues. But none of that was brought before a court.
The Plaintiffs attempted to get around the HERA sand trap by arguing the NWS was ultra vires by way of the APA’s arbitrary and capricious language, or Delaware corporate Law etc etc. All failed except the Common Law implied good faith and fair dealings implicit to contracts that Congress can’t legislate away. So here we are cheering on the last scraps of a failed legal strategy that will do nothing but take cash from the beleaguered GSEs and make some Attorneys more money.
I believe that the 2nd, 3rd, and 4th amendments to the SPSPA have created new distinct injuries to the GSEs and shareholders such that under the continuing claims doctrine, the Statute of limitations on the original Charter Act and Safety and Soundness act violations instituted by the SPSPA are still ripe. Would you be willing to help me with this?
