If the rumor du jour is correct, and the Treasury is going to announce plans to inject $15 billion into Fannie and Freddie before trading starts on Monday, the idea of a conservatorship for the GSEs may be off the table. Nevertheless. Adam Levitin of Credit Slips discusses the legal aspects, and this knowledge is likely to prove useful at some point. The most interesting part, which is consistent with my impression, is that existing law is very thin.
From Credit Slips:
That rich legal fabric of law, institutions, and personnel, and hence market confidence [of Chapter 11 proceedings], is missing from a potential Fannie/Freddie conservatorship. There only thing to guide a GSE conservatorship (beyond general conservatorship law and principles, which may or may not be applicable) is a fairly barebones section of the US Code, 12 U.S.C. section 4620. It gives the conservator (which could be pretty much anyone, including a government agency) some avoiding powers (although more limited than a trustee in bankruptcy), prevents the operation of ipso facto clauses against the GSE in conservatorship, and creates a possibility (but not a requirement) of a 45 day stay of actions against the GSE. The 45 day stay is the real key because it provides a window for a workout to occur. But is it sufficient?
The 45 day stay contrasts to the bankruptcy automatic stay, which continues until the end of the case unless lifted for cause. The 45 day stay appears to be modeled upon the stay for FDIC conservatorships, 12 U.S.C. 1821(d)(12). But the FDIC is in the business of doing bank conservatorships and receiverships–it is experienced and set up for handling failed banks. OFHEO, Fannie and Freddie’s regulator, is not, and the FDIC is not really set up to handle a failed GSE. 45 days is a good stretch of time for the FDIC to resolve a failed bank, in part because the FDIC can strongarm other banks into taking on assets and investments of the failed bank. But 45 days might not be enough time for a Fannie or Freddie workout. There no OFHEO conservatorship team or experience in handling failed GSEs. And the conservatorship provisions do not permit DIP management (see 12 U.S.C. 4619(a)(4)(B)(i)). And the scale of Fannie and Freddie is alone an obstacle. To be sure, the Treasury Department would likely bring significant pressure to bear on parties to a workout, but that might not be sufficient (remember the Master Liquidity Enhancement Fund debacle last fall?).
It seems to me that if a Fannie/Freddie conservatorship were to be viable, the stay would have to be extended. On the other hand, if Fannie or Freddie went into conservatorship and couldn’t reorganize within 45 days, it might be as good as dead. Regardless, a major problem with the GSE conservatorship option is that it doesn’t have the infrastructure to work like a Chapter 11 reorganization. Although that arguably gives the conservator a freer hand, it also reduces market confidence in the ability of a conservatorship to set a faltering GSE back upright. And without faith in the ability of a GSE to reorganize, the reorganization is unlikely to succeed.
I never would have though Fannie’s or Freddie’s problems could be resolved in 45 days, But Levitin raises a key point: how much uncertainty of timing and process would the market tolerate? With nerves as frayed as they are, probably not much.
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I think the 45 day business is a bit confused and misleading. If a GSE is placed into conservatorship, and the board of the GSE does not agree with the appointment , its board or shareholders have a window of 20 days in which to contest the appointment of the conservator. (For failed banks, there is an automatic stay of 30 days before the appointment of a receiver or conservator can be contested.) The conservator of a GSE can obtain a 45 day stay of any action . FDIC as Receiver or Conservator has no special powers to automatically stay litigation against it (as Receiver or Conservator). And it doesn’t have to finish its job in 45 days, either (no idea where that one came from).
In practice, with FDIC, shareholders do file suit to challenge the chartering authority’s determination of insolvency, but these cases drag on for years, and I know of no case where a court has intervened in the operation of a bank receivership (or where the shareholders have prevailed against the determination of insolvency).
So, yeah, the shareholders of a GSE could file suit, but it would take forever and be a tough climb; meanwhile, the courts are unlikely to inject themselves into the conservator’s operations.
As a final note, the capital ratios that compel the appointment of a conservator for a GSE are clearly stated in the law, and that would make a suit unviable unless somebody at OFHEO fat fingers a spreadsheet. And of course nobody at OFHEO is making that calculation, anyway.
What amuses me is that fannie and freddie are going to split 15 billion. Wasn’t it countrywide that onlyh bought about 90 to 120 days with 10 billion?
This is a very tiny band-aid for a very large and growing wound.
If one GSE goes into Conservatorship the other will follow. Then more than 90% of mortgages originated in the US would reside in the hands of the gov’t. Socialized Mortgage Debt.