Tuesday, July 9, 2013

Originally Appeared in The Washington Post

Investors are placing more pressure on the government to release its hold on Fannie Mae and Freddie Mac as the mortgage finance giants return to profitability.

In the latest effort, hedge fund Perry Capital filed a lawsuit in federal court late Sunday to stop the government from seizing most of the profits at the finance firms.

The lawsuit, filed in U.S. District Court in Washington, alleges the Treasury Department and the Federal Housing Finance Agency (FHFA), which oversees the government-owned mortgage companies, violated a 2008 law that placed Fannie and Freddie into conservatorship to prevent bankruptcy.

Congress originally authorized Treasury to collect 10?percent dividend payments from Fannie and Freddie every quarter as a condition of the government’s $188?billion bailout of them. Treasury amended the terms of the agreement last year to make Fannie and Freddie give the government most of their profits, a move known as the “sweep amendment.”

The lawsuit alleges that the dividend sweep was tantamount to a purchase of new securities, which Treasury did not have the authority to make. It also says the FHFA has failed to conserve the assets of Fannie and Freddie by allowing Treasury to take most of their profits. Perry Capital is not seeking damages but is asking the court to strike down the Treasury amendment, a decision that would benefit its investors.

“This lawsuit seeks to uphold the rule of law,” Theodore Olson, a partner at Gibson, Dunn & Crutcher, which is representing Perry Capital, said in a statement. “If the government wanted to assume the powers of receivership, it could have chosen that course. Instead it chose conservatorship, and with the ‘sweep amendment,’ it overreached.”

Perry Capital alleges that the new arrangement has caused irreparable harm to all private investors, who are being shortchanged as Fannie and Freddie have returned to profitability. The hedge fund says the government “maneuvered to ensure that Treasury would be the sole beneficiary of the companies’ improved financial position,” according to the lawsuit.

Treasury and the FHFA declined to comment on the lawsuit.

Treasury has received $132?billion in dividend payments on the government’s nearly 80?percent stake in Fannie and Freddie. Shareholders say Treasury’s new terms prevent the companies from building capital that would help them redeem any of the shares the government has taken.

Perry Capital, which would not disclose its exact stake in Fannie and Freddie, began investing in the mortgage companies in 2010. It said it believed the beleaguered companies were positioned to return to profitability. In the aftermath of the financial crisis, Fannie, Freddie and other government-backed agencies have insured nearly 90?percent of new mortgages.

Investors, including Perry Capital and Paulson & Co., have urged Congress to quash plans to close Fannie and Freddie, which they say should be allowed to go private. But the overwhelming momentum in Washington is behind abolishing the troubled mortgage insurers.

A few weeks ago, Sens. Bob Corker (R-Tenn.) and Mark R. Warner (D-Va.) introduced legislation to replace the mortgage giants with a new government agency that would shift more of the risks of lending to the private sector. The lawmakers want to make the government the last line of defense in the event of another housing crash.

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