One thing is that the FHFA suspended the Capital Classifications in 2008 and the capital requirements aren't binding, which is typical of conservatorship, pursuant to the "may" in the FHFA-C's Power: "may put FnF in a sound and solvent condition" and also the FHFA-C's Incidental Power: "Any action authorized by this section, in the best interests of FnF or the FHFA". That is, it's necessary so that the conservator has some leeway to administer the conservatorship, at the time when the companies and the economy are bleeding and still do and in need to fix their operations, organization,...15 years later, that's why the FHFA director still needs the powers and rights from FnF and ours. In other words, this way, the conservator isn't tied up.
And a different thing is that: 1- The capital requirements must be published because they are statutory (FHEFSSA). This is why FnF have posted the Minimum (Leverage) Capital requirement on their Earnings reports every quarter since day one. The Risk-Based Capital requirement was missing because HERA struck the entire section in the FHEFSSA with the formulaic, with the mandate to the director to come out with a new one. Not "binding" but they are good to know. Freddie Mac:
2- You seem to suggest that, because there are no capital requirements, FnF aren't required to build capital. Then, you can take all their capital generated away. Even without thresholds (requirements), they have to build capital. This is the typical "playing with the words" by the Fanniegate attorneys we are used to. We need to know the thresholds to track the capital shortfall, evaluate their soundness and solvency and to uphold the FHFA-C's power (which means to restore the capital levels: recapitalization), and I've already mentioned that "may" is imperative once the capital has been generated and not a choice, in the legal dictionary. That is, the statutory capital levels are financial indicators of the financial condition in a financial company.
3- The suspension of Capital Classifications doesn't mean that the statutory section "Capital Classifications" was suspended or repealed, which is another take by the Fanniegate attorneys, where all the definitions regarding capital are set forth, so we learn that the Minimum (Leverage) capital requirement is met with Core Capital and added in the Capital Rule, the CET1 Capital and Tier1 capital; that the Risk-Based Capital requiement is met with Total Capital; that there is a Critical Capital level called "irrelevant" by the FHFA because it triggers a conservatorship during a conservatorship, but it forgot that it needs to be published regardless, currently illegally absent from the ERCF. They aren't met with the capital metric "Capital Reserve". The plotters don't like the rules, this is why the Mnuchin Treasury Department recommended Congress to repeal these FHEFSSA definitions in its 2019 UST Plan at the request of a Presidential Memorandum, which attempted to substitute the real 2011 UST 3-option Privatized Housing Finance System for the release, at the request of the Dodd-Frank law and a Report to Congress.
4- The key for the suspension of Capital Classifications that didn't bother to anyone in the first place: somehow the plotters think that, pretending that it was the FHEFSSA section Capital Classifications what was suspended too, commented before, the Restriction on Capital Distributions (U.S.Code §4614(e)) was repealed too, because, HERA, surprisingly, inserted it at the end of the section, whereas the same provision is a stand alone section: Prompt Corrective Action in the banks' FDI Act. HERA:
5- Likewise, the fact that it took 12 years for the FHFA director to come up with the changes in the capital requirements of the FHEFSSA (18-Month Implementation section, missing), that it was authorized/mandated to carry out in an amendment inserted by HERA (Capital Rule effective February 16, 2021), doesn't mean that FnF don't have to build capital for their financial rehabilitation in the meantime. That is, the typical Transition Period to build capital given by any Federal Agency when there are changes, and the Equity holders have suffered Regulatory Risk (Basel framework for capital requirements, in light of the 2011 UST Plan). It has just made it a "Back-end Capital Rule". Besides Conservator Risk, not only for the Separate Account plan (Legal, except the 7 Securities Law violations in the process), but also for the extended period beyond what would have been reasonable thresholds for the release (Undercapitalized: C.C. or Tier 1 Captial > 2.5% of ATA. Mandatory release in the prior FHEFSSA; or the resumption of dividend payments afterwards), but "in the best interests of the FHFA" (membership cleansing) it has been extended to CET1 > 2.5% of ATA, so FnF can redeem the JPS (AT1 Capital) and still meet the ERCF with Tier 1 Captial > 2.5% of ATA. Wait! Because it was extended one quarter more to 4Q2023, so that the laggard Fannie Mae meets the threshold for the resumption of dividend payments (25% of the Prescribed Capital Buffer. Table 8: Payout ratio) after the redemption of JPS, and under the Separate Account plan.
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