Fannie Mae-No Politics (FNMA)

[FOFreddie]

Hi Robert,

I think it is interesting that the Mr. Market has treated the 5th Circuit Panel Decision which was released on Oct 12th as a non- event or perhaps supportive. Perhaps Mr. Market is just waiting for the En Banc.

What I thought was interesting was the fact that the Panel opened the way for a future Constitutional Challenge which can not be barred by the anti-injunction provisions of HERA and it disagreed with the Bhatti District Court decision based on its interpretation of the SCOTUS Collins decision. I am thinking there could be a MQD Challenge regarding
the affordable housing initiatives such as those mentioned in the Haggerty Letter to the FHFA or a Takings Challenge by Common if the cramdown occurs?

Here is an excerpt on Page 14:

This analysis is buttressed by the nature of the majority opinion in
Collins. The plaintiffs brought both statutory and constitutional challenges
to the third amendment. See id. at 1775. The majority dedicated nearly four
pages to explaining why § 4617(f) barred plaintiffs’ statutory challenge to the
third amendment. See id. at 1776–79. Yet the opinion did not mention
§ 4617(f) when discussing whether plaintiffs could show that the unconsti
tutional removal restriction caused them harm. See id. at 1787–89. If
§ 4617(f) barred consideration of constitutional claims, one would expect the
opinion would have noted that. It would be strange for Collins to leave open
the possibility of retrospective relief based on an unconstitutional removal
restriction, give examples of when such relief would be available, and remand
the case for resolution of that issue if the entire question was outside our
ability to review.
Therefore, § 4617(f) does not bar count I of the amended complaint
seeking relief directly under the Constitution, and we may finally proceed to
the merits of plaintiffs’ contention that HERA’s unconstitutional removal
provision caused compensable harm.

https://www.glenbradford.com/2023/10/collins-v-fhfa-3/