On July 9, 2013, Fairholme Funds, Inc., a mutual fund that held preferred stock issued by the Federal National Mortgage Association, commonly known as “Fannie Mae,” and the Federal Home Loan Mortgage Corporation, commonly known as “Freddie Mac,” filed suit against the U.S. government in the U.S. Court of Federal Claims, seeking “just compensation” under the Fifth Amendment for their property when the Obama administration, in the so-called “Net Worth Sweep” of 2012, confiscated all Fannie and Freddie profits.
In 2008, when the economy went into recession over the collapse of the subprime mortgage market, Congress passed the Housing and Economic Recovery Act, HERA, to save Fannie and Freddie by a federal bailout that placed the two Government Sponsored Entities, GSEs, into government conservatorship, with the U.S. Treasury recapitalizing Fannie and Freddie by issuing to the GSEs $187.5 billion in senior preferred stock with a 10% dividend designed to repay the U.S. Treasury over time.
But in 2012, when Fannie and Freddie became profitable, as the mortgage market returned with rigorous credit underwriting and a zero-interest rate environment maintained by the Federal Reserve, the Obama administration initiated a “Net Worth Sweep,” designed to confiscate 100% of the profits generated by Fannie and Freddie.
The result was that private shareholders like Fairholme Funds were paid nothing on their Fannie and Freddie stock.
In August 2012, the Obama administration engineered an amendment to the Senior Preferred Stock Purchase Agreements creating a variable dividend that allowed the U.S. Treasury to grab all Fannie and Freddie profits, regardless how large Fannie and Freddie’s earnings might be.
In 2016, U.S. District Judge Rosemary Collyer, in the case U.S. House of Representatives v. Burwell, ruled the Department of Health and Human Services could not use taxpayer dollars to pay Obamacare insurance subsidies Congress refused to fund.
To solve this problem, the Obama administration defied the District Court by diverting profits confiscated from Fannie and Freddie to pay the Obamacare insurance subsidies Congress had refused to fund.
To block the progress of the Fairholme lawsuit, the Obama administration asserted executive privilege, seeking to withhold some 77,945 documents from the public view, including some 12,251 documents the government wanted completely withheld (even from the federal court).
The plaintiffs in the lawsuit asserted the government’s purpose in seeking to keep the documents secret was to conceal the government’s motives in seizing from private and institutional shareholders their stock dividends in Fannie and Freddie the government wanted to seize. Read more here