FNMA and FMCC preferreds. In search of the elusive 10 bagger.

[merkhet]

another amateur Q: Why can't FHFA be the government in one court but not the Gov't in another court? Hume said FHFA needs it that way for him to lose - is that not a possibility?

 

a govt agency can be the govt for purposes of one statute, and not for another statute. here, fhfa apparently believes it must be consistent before both federal court and court of claims that it is not the govt. presumably, fhfa thought at beginning of this case that its largest exposure was in court of claims for a taking, hence the no govt position. but by taking that position, it opens fhfa up to suit in federal court.  the federal courts have held that fhfa as conservator "steps into the shoes" of the GSEs, and the GSEs are clearly private parties, so i believe fhfa took the "right" position, and wasnt just trying to be strategic.  which is why fairholme is seeking to prove that fhfa is subject to direction of treasury in court of claims, and therefore both fhfa and treas can be sued there

 

+1

[doughishere]

Looks like we'll get to peak behind the curtain a little more with some more unsealed documents by this Friday.

 

Nothing?

[muscleman]

this is way surprising:  https://www.dropbox.com/s/nhj8j25a8ot90m8/perry%20fdic%20amicus.pdf?dl=0

 

fdic just filed an amicus with perry appeals court saying that while fhfa claims it is not the US govt, fdic wants appeals court to know that fdic considers itself US govt

 

this should have relevance in faitholme's case before court of federal claims

 

Can the FDIC influence the court in that the FHFA has sovereign immunity in spite of FHFA itself not claiming it?

 

pretty weird, right?

 

no, if a party isn't claiming something, an amicus can't do it on the party's behalf.

 

it looks like amateur hour to the judges though...

 

 

Reading FDIC's statement again, I think FDIC says that the parties claimed that FDIC is not the government but FDIC itself believes it is the government.

I don't see anywhere in that brief where FDIC asserts that FHFA is the government.

 

"FDIC does not support the parties’ assertions in the supplemental briefs that the FDIC as conservator or receiver is not the United Statesor not entitled to sovereign immunity."

 

"FDIC expresses no view on whether FHFA as a conservator is the United States for purposes of sovereign immunity or the FTCA"

 

So it sounds like FDIC disagrees with FHFA's brief here, which quoted "(FDIC acting as receiver “is not the United States”);"

and

" (dismissing claim because the FDIC as conservator “was not acting as the United States”)."

http://www.cornerofberkshireandfairfax.ca/forum/general-discussion/fnma-and-fmcc-preferreds-in-search-of-the-elusive-10-bagger/msg269617/#msg269617

 

 

Am I right?

Why does FDIC track so closely about this case and why do they even care?

 

[Luke 532]

From Peter Chapman today...

Attached to this e-mail message are unsealed and redacted copies of:

 

    -- Fairholme's Motion filed on July 29, 2015, asking the D.C. Circuit to take judicial notice of various discovery documents; and

 

    -- Fairholme's Reply in support of that request filed on Aug. 31, 2015.

 

I've posted copies of the two volumes of discovery documents at

 

    -- http://bankrupt.com/misc/14-5243-1565601-1.pdf and

 

    -- http://bankrupt.com/misc/14-5243-1565601-2.pdf

[Guest cherzeca]

this is way surprising:  https://www.dropbox.com/s/nhj8j25a8ot90m8/perry%20fdic%20amicus.pdf?dl=0

 

fdic just filed an amicus with perry appeals court saying that while fhfa claims it is not the US govt, fdic wants appeals court to know that fdic considers itself US govt

 

this should have relevance in faitholme's case before court of federal claims

 

Can the FDIC influence the court in that the FHFA has sovereign immunity in spite of FHFA itself not claiming it?

 

pretty weird, right?

 

no, if a party isn't claiming something, an amicus can't do it on the party's behalf.

 

it looks like amateur hour to the judges though...

 

 

Reading FDIC's statement again, I think FDIC says that the parties claimed that FDIC is not the government but FDIC itself believes it is the government.

I don't see anywhere in that brief where FDIC asserts that FHFA is the government.

 

"FDIC does not support the parties’ assertions in the supplemental briefs that the FDIC as conservator or receiver is not the United Statesor not entitled to sovereign immunity."

 

"FDIC expresses no view on whether FHFA as a conservator is the United States for purposes of sovereign immunity or the FTCA"

 

So it sounds like FDIC disagrees with FHFA's brief here, which quoted "(FDIC acting as receiver “is not the United States”);"

and

" (dismissing claim because the FDIC as conservator “was not acting as the United States”)."

http://www.cornerofberkshireandfairfax.ca/forum/general-discussion/fnma-and-fmcc-preferreds-in-search-of-the-elusive-10-bagger/msg269617/#msg269617

 

 

Am I right?

Why does FDIC track so closely about this case and why do they even care?

 

it seems clear that fdic is only trying to make clear that it considers itself the govt for purposes of its governing act.  the interesting part is that HERA was modeled so closely on the FDIA so that fhfa should be treated much as fdic (one would think).  i think the judges will not think the brief affects their analysis of the case

[Luke 532]

From Peter Chapman today...

Attached to this e-mail message are unsealed and redacted copies of:

 

    -- Fairholme's Motion filed on July 29, 2015, asking the D.C. Circuit to take judicial notice of various discovery documents; and

 

    -- Fairholme's Reply in support of that request filed on Aug. 31, 2015.

 

I've posted copies of the two volumes of discovery documents at

 

    -- http://bankrupt.com/misc/14-5243-1565601-1.pdf and

 

    -- http://bankrupt.com/misc/14-5243-1565601-2.pdf

 

Chapman (and 2 attachments)...

 

One factoid in Fairholme's papers unsealed this week that's new to me is:

 

Fairholme's Motion (Doc. 1565601), at page 13, says:

 

    "Treasury’s administrative record fails to reveal that Treasury was in possession of newer projections indicating that the Net Worth Sweep was

not necessary to prevent the Companies from running through the available Treasury funding commitment."

 

Fairholme's Reply (Doc. 1572909), at page 10, says:

 

    "n adopting the Net Worth Sweep, Defendants relied on financial projections based on 11 month old data, and those projections were by then known to be inaccurate and unreliable."

14-5243-1572909.pdf

14-5243-1565601.pdf

[doughishere]

this is way surprising:  https://www.dropbox.com/s/nhj8j25a8ot90m8/perry%20fdic%20amicus.pdf?dl=0

 

fdic just filed an amicus with perry appeals court saying that while fhfa claims it is not the US govt, fdic wants appeals court to know that fdic considers itself US govt

 

this should have relevance in faitholme's case before court of federal claims

 

Can the FDIC influence the court in that the FHFA has sovereign immunity in spite of FHFA itself not claiming it?

 

pretty weird, right?

 

no, if a party isn't claiming something, an amicus can't do it on the party's behalf.

 

it looks like amateur hour to the judges though...

 

 

Reading FDIC's statement again, I think FDIC says that the parties claimed that FDIC is not the government but FDIC itself believes it is the government.

I don't see anywhere in that brief where FDIC asserts that FHFA is the government.

 

"FDIC does not support the parties’ assertions in the supplemental briefs that the FDIC as conservator or receiver is not the United Statesor not entitled to sovereign immunity."

 

"FDIC expresses no view on whether FHFA as a conservator is the United States for purposes of sovereign immunity or the FTCA"

 

So it sounds like FDIC disagrees with FHFA's brief here, which quoted "(FDIC acting as receiver “is not the United States”);"

and

" (dismissing claim because the FDIC as conservator “was not acting as the United States”)."

http://www.cornerofberkshireandfairfax.ca/forum/general-discussion/fnma-and-fmcc-preferreds-in-search-of-the-elusive-10-bagger/msg269617/#msg269617

 

 

Am I right?

Why does FDIC track so closely about this case and why do they even care?

 

it seems clear that fdic is only trying to make clear that it considers itself the govt for purposes of its governing act.  the interesting part is that HERA was modeled so closely on the FDIA so that fhfa should be treated much as fdic (one would think).  i think the judges will not think the brief affects their analysis of the case

 

All documents should be in for them to make their case, no?  Any speculation on how long?

[TonyG]

Have we seen that presentation in the second set of documents by David Benson the "Strategic Planning Session?"

[merkhet]

In case we were all wondering about why FDIC submitted that weird amicus... here's the response by Class Plaintiffs.

2016-07-23_Class_Plaintiffs_Brief_in_Response_to_FDIC.pdf

2016-07-23_Class_Plaintiffs_Motion_for_Leave_to_Respond_to_FDIC.pdf

[muscleman]

why is FDIC allowed to file the amicus brief without filing a motion to leave first？ I remember a while ago professor John Yoo had to file a motion along with the brief, and his motion got rejected by Sweeney.

[Guest cherzeca]

why is FDIC allowed to file the amicus brief without filing a motion to leave first？ I remember a while ago professor John Yoo had to file a motion along with the brief, and his motion got rejected by Sweeney.

 

fdic states in brief that it can file amicus on its own motion.  news to me

[merkhet]

why is FDIC allowed to file the amicus brief without filing a motion to leave first？ I remember a while ago professor John Yoo had to file a motion along with the brief, and his motion got rejected by Sweeney.

 

fdic states in brief that it can file amicus on its own motion.  news to me

 

They are relying on FRAP 29(a), which, plaintiffs indicate has been misapplied.

[Guest cherzeca]

my initial reaction to the fdic amicus was that fdic simply felt it needed to protect itself and its sov imm position for its own future litigation. 

 

but the more i think about the fdic argument, and that fhfa did not assert sov imm but did not disavow it, the more i think that fdic/fhfa were trying to play the appeals court, by having it be convinced by fdic's amicus, which would not put fhfa in an inconsistent position in federal court of claims.  hume did a masterful job calling a spade a spade, and then eviscerating fdic's lead precedent as inapplicable to current situation.

 

i have thought that the whole question from the court as to fhfa and sov imm was quite strange.  it was clear on the appellate briefing (and the briefing and decision below) and oral argument that fhfa was not asserting sov imm, so why did a judge (and i think it was judge millet) re-ask the question?  it almost seems like a set up for this amicus ploy.  bleak thought, i know, but it provides an explanation where none was otherwise forthcoming.

[Guest cherzeca]

"All documents should be in for them to make their case, no?  Any speculation on how long?"

 

this is a very complex case, with at least three major claims (treasury has no authority to purchase, fhfa failed as C, and there was breach of contract/fiduciary duty; you can even add fhfa subject to direction of treasury), and a host of arguments presented by these claims.  it would not surprise me if this case is decided as late as october.

 

in addition to mere complexity, you can add the notion that august is soon upon us, and things judicial move very slowly then, and i expect there to be at least some effort (and therefore time) devoted to trying to get a unanimous court on at least one of the claims.  i would expect each judge to write an opinion, or an individual concurrence or dissent.

 

and while i personally think only millet was interested in the last set of questions, the briefing just received by court needs to be digested and, for at least one judge, weighed.

[rros]

...the more i think that fdic/fhfa were trying to play the appeals court...

 

and re: amicus ploy

 

The worrisome -and I admit conspirative- thought is if it is the same appeals court offering defendant ideas as to how to "legally" circumvent the law: FHFA being and not being the government simultaneously, winning in all courts. We already had the appeals court bringing up 4623 and sovereign immunity on their own. So, who is being played?

[muscleman]

"All documents should be in for them to make their case, no?  Any speculation on how long?"

 

this is a very complex case, with at least three major claims (treasury has no authority to purchase, fhfa failed as C, and there was breach of contract/fiduciary duty; you can even add fhfa subject to direction of treasury), and a host of arguments presented by these claims.  it would not surprise me if this case is decided as late as october.

 

in addition to mere complexity, you can add the notion that august is soon upon us, and things judicial move very slowly then, and i expect there to be at least some effort (and therefore time) devoted to trying to get a unanimous court on at least one of the claims.  i would expect each judge to write an opinion, or an individual concurrence or dissent.

 

and while i personally think only millet was interested in the last set of questions, the briefing just received by court needs to be digested and, for at least one judge, weighed.

 

Even for Sweeney, it has been taking so long and still not yet ruled on the motion to release the documents. Not to say three judges in the appeals court.

I am sure it is Millet pushing hard on these questions and doing a favor for Obama.

 

 

 

[merkhet]

Courts are allowed to bring things up sua sponte (on their own motion) particularly when it comes to whether they have the power to adjudicate a case. Both §4623(d) and/or the question of waivers of sovereign immunity fall into this category. I'm not sure conspiracy is a rabbit hole worth going down.

 

Moreover, if I were the appeals court, I don't think I'd look favorably upon the song and dance number that FHFA and FDIC just put on.

[muscleman]

Courts are allowed to bring things up sua sponte (on their own motion) particularly when it comes to whether they have the power to adjudicate a case. Both §4623(d) and/or the question of waivers of sovereign immunity fall into this category. I'm not sure conspiracy is a rabbit hole worth going down.

 

Moreover, if I were the appeals court, I don't think I'd look favorably upon the song and dance number that FHFA and FDIC just put on.

 

I definitely hope there is no conspiracy.

 

A potential OT topic:

I am concerned with the DNC emails leaked here. It is better than watching House of Cards!

 

https://wikileaks.org/dnc-emails/emailid/13830

https://wikileaks.org/dnc-emails/emailid/12803

https://wikileaks.org/dnc-emails/emailid/5852

 

 

 

[Guest cherzeca]

...the more i think that fdic/fhfa were trying to play the appeals court...

 

and re: amicus ploy

 

The worrisome -and I admit conspirative- thought is if it is the same appeals court offering defendant ideas as to how to "legally" circumvent the law: FHFA being and not being the government simultaneously, winning in all courts. We already had the appeals court bringing up 4623 and sovereign immunity on their own. So, who is being played?

 

agree with merkhet on his response, but would go one step further.  i do believe that ginsburg and brown assume that if they rule against govt, the next step would be for govt to ask for en banc hearing.  so bringing up (and discarding) all possible jurisdictional escape hatches is not only proper, but also wise given that the entire appeals court will have to at least look at whether it should look at this case again...and when it looks to see if an en banc hearing is appropriate, a very big reason not to give the case a second look en banc is that it will see that the merits panel itself bent over backwards in trying to see if all of the govt's possible arguments have been raised and answered.  plus, to extent that ginsburg and brown are in a majority ruling against govt, doing so will insulate them from any criticism that they are rogue "constitution in exile" judges.

[rros]

...the more i think that fdic/fhfa were trying to play the appeals court...

 

and re: amicus ploy

 

The worrisome -and I admit conspirative- thought is if it is the same appeals court offering defendant ideas as to how to "legally" circumvent the law: FHFA being and not being the government simultaneously, winning in all courts. We already had the appeals court bringing up 4623 and sovereign immunity on their own. So, who is being played?

 

agree with merkhet on his response, but would go one step further.  i do believe that ginsburg and brown assume that if they rule against govt, the next step would be for govt to ask for en banc hearing.  so bringing up (and discarding) all possible jurisdictional escape hatches is not only proper, but also wise given that the entire appeals court will have to at least look at whether it should look at this case again...and when it looks to see if an en banc hearing is appropriate, a very big reason not to give the case a second look en banc is that it will see that the merits panel itself bent over backwards in trying to see if all of the govt's possible arguments have been raised and answered.  plus, to extent that ginsburg and brown are in a majority ruling against govt, doing so will insulate them from any criticism that they are rogue "constitution in exile" judges.

 

All this makes sense.

 

As well as Merkeht's measured response from the legal side.

 

But we would be naive not to see that the DOJ team has been less than bright fighting this case in the last few years yet suddenly smarting up to be able to come up with a "FDIC-FHFA maneuver". I can't give them credit for that and I am in need to fill up that hole.

[Grenville]

"All documents should be in for them to make their case, no?  Any speculation on how long?"

 

this is a very complex case, with at least three major claims (treasury has no authority to purchase, fhfa failed as C, and there was breach of contract/fiduciary duty; you can even add fhfa subject to direction of treasury), and a host of arguments presented by these claims.  it would not surprise me if this case is decided as late as october.

 

in addition to mere complexity, you can add the notion that august is soon upon us, and things judicial move very slowly then, and i expect there to be at least some effort (and therefore time) devoted to trying to get a unanimous court on at least one of the claims.  i would expect each judge to write an opinion, or an individual concurrence or dissent.

 

and while i personally think only millet was interested in the last set of questions, the briefing just received by court needs to be digested and, for at least one judge, weighed.

 

Even for Sweeney, it has been taking so long and still not yet ruled on the motion to release the documents. Not to say three judges in the appeals court.

I am sure it is Millet pushing hard on these questions and doing a favor for Obama.

 

Appreciate all the discussion on this thread. My growing worry is that no judge wants to be the first to rule against the government in the GSE cases. The sums of money involved are large as well… I hope the delay and additional questions are just to be thorough. Judge Thapur decision to remove himself was quite a surprise given his vocalness to rule quickly. I understand the conflict of holding shares, but it seems like a stretch to suddenly realize you own them and then just recuse yourself.

 

Hopefully I'm wrong and we get some decisions in some of these cases instead of either delays or additional topics to brief.

[doughishere]

Question for the Legal Eagles,

 

Can there be an injunction put on the money from being transferred to the treasury? Why has there not been one or at least and attempt to get one?

[Guest cherzeca]

Question for the Legal Eagles,

 

Can there be an injunction put on the money from being transferred to the treasury? Why has there not been one or at least and attempt to get one?

 

Ps looking for injunctive relief.  looking to vacate NWS. money is out door. best to hope for is to recoup it back

 

@grenville  judges are weenies by and large. no doubt.  you dont see heroes often wearing robes.  we're just trying to find one judge who isnt a hump w/o a backbone.  my money goes on brown/ginsburg

[doughishere]

Question for the Legal Eagles,

 

Can there be an injunction put on the money from being transferred to the treasury? Why has there not been one or at least and attempt to get one?

 

Ps looking for injunctive relief.  looking to vacate NWS. money is out door. best to hope for is to recoup it back

 

@grenville  judges are weenies by and large. no doubt.  you dont see heroes often wearing robes.  we're just trying to find one judge who isnt a hump w/o a backbone.  my money goes on brown/ginsburg

 

 

Duh.....thanks Cherz.

[Eye4Valu]

Question for the Legal Eagles,

 

Can there be an injunction put on the money from being transferred to the treasury? Why has there not been one or at least and attempt to get one?

 

Ps looking for injunctive relief.  looking to vacate NWS. money is out door. best to hope for is to recoup it back

 

@grenville  judges are weenies by and large. no doubt.  you dont see heroes often wearing robes.  we're just trying to find one judge who isnt a hump w/o a backbone.  my money goes on brown/ginsburg

 

I don't think Sweeney is spineless either.