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Taxpayers Could Foot Bill For Fannie Mae Fraud Settlement


Originally published at Forbes.com. Updated 5/21/2013.

Years after the government accused Fannie Mae of accounting fraud, are taxpayers being forced to pay the price?

Last week, Fannie Mae and its former auditor agreed to pay $153 million to settle a lawsuit in which a group of Ohio pension funds alleged that they were defrauded by Fannie Mae’s long-ago conduct.

But Fannie Mae, the giant housing finance company, was taken over by the government at the height of the financial crisis in 2008 and remains a ward of the state. It has received billions of dollars of taxpayer support.

Is Fannie Mae’s half of the $153 million settlement the latest insult and injury to taxpayers?

The Project On Government Oversight (POGO) asked the company and its regulator, the Federal Housing Finance Agency (FHFA), who bears the cost of the settlement. They would not answer. (A Fannie Mae spokesperson referred POGO to the regulator, which declined to comment.)

But based on an examination of publicly available records, it appears that taxpayers could be left holding the bag, at least temporarily.

The regulator was clearly aware of the risk. In 2011, it published a rule explaining the general pitfalls for taxpayers if Fannie Mae were required to pay litigation claims while it was under what is called federal conservatorship. The rule said, in part, that Fannie Mae’s “payment of securities litigation claims will be held in abeyance during a conservatorship, except as otherwise ordered by the [FHFA] Director.”

In other words, without special dispensation, the rule would have prevented alleged victims of Fannie Mae’s accounting from collecting damages while the company remained a ward of the federal government.

The Ohio pension funds cried foul. They challenged the rule in federal court, arguing it was “designed to single out securities fraud victims and restrict their ability to recover their losses.”

In response, FHFA argued that the rule was necessary to protect taxpayers. “Because Fannie Mae and Freddie Mac currently depend for their very existence on hundreds of billions of dollars of taxpayer funds…Plaintiffs’ position would essentially effect a massive wealth transfer from the taxpayers of the United States to compensate Plaintiffs for investment losses,” FHFA wrote in a 2012 motion.

But that may be precisely what’s happened. It appears the regulator has exercised its legal authority to green light the payment.

Last week’s proposed settlement, filed in federal court, says that Fannie Mae is “paying its portion of the Settlement Fund with the express approval of its conservator, FHFA.”

Fannie Mae and its former auditor, KPMG, did not admit any wrongdoing. The settlement must still be approved be a federal court.

“We are satisfied with the outcome and pleased to put the matter behind us,” a Fannie Mae official said in a statement provided to POGO.

“KPMG determined that it was in the firm’s best interest to put this matter behind us and avoid the significant additional cost, and the distraction and inherent uncertainty, of protracted litigation,” a KPMG spokesperson told Bloomberg for a story reporting the settlement.

The class action litigation began in 2004. The Ohio pension funds—representing more teachers, police officers, and other public service employees—alleged that, from at least 2001 through 2004, Fannie Mae “engaged in one of the largest financial frauds in U.S. corporate history,” according to their complaint. “Over thirty of Fannie Mae’s accounting policies and practices—nearly every major accounting standard applicable to its mortgage-financing business—violated [Generally Accepted Accounting Principles],” resulting in millions of dollars in losses for the pension funds, the plaintiffs alleged.

Fannie Mae has also been in hot water with federal regulators. “By deliberately and intentionally manipulating accounting to hit earnings targets, senior management maximized the bonuses and other executive compensation they received, at the expense of shareholders,” Fannie Mae’s regulator at the time said in a 2006 report. Fannie Mae paid $400 million to settle with the regulator and the Securities and Exchange Commission. In late 2006, Fannie Mae disclosed in a regulatory filing that it had overstated earnings by $6.3 billion.

Fannie Mae could have set aside funds to pay for any liability in the class action litigation before it was seized by the government. The company and its regulator would not tell POGO whether Fannie Mae established such a reserve. But even if it did, that wouldn’t spare taxpayers the consequences, according to a former regulator who is now removed from the situation and spoke on condition of anonymity.

As of this year, “every dollar of earnings” generated by Fannie Mae “is used to benefit taxpayers,” according to the Treasury Department. So money that’s used to pay a settlement is money that can’t be taken out of reserve and used to pay back the government.

Neither Fannie Mae nor the regulatory agency would say whether insurance will cover any of Fannie Mae’s tab. If so, that would seem at odds with the agency’s warning that a legal settlement would amount to a “massive wealth transfer” from the taxpayers to the pension funds. (The quote was noted in a January 2012 article by Law360 discussing a legal disagreement between the pension funds and the regulator.)

Fannie Mae has returned to profitability, buoyed by a recovering housing market. Last week, it announced a one-time paper gain of $50.6 billion from writing up the value of tax benefits it had previously written down. This extraordinary development will help it pay a dividend of $59.4 billion to the U.S. Treasury by the end of June, but that doesn’t mean it will be able to repeat the feat in future quarters. (As Washington Post columnist Steven Pearlstein explained: “Remember, we’re talking here about an accounting adjustment, not an actual surge in cash flow.”)

As of March 31, the company had received $116.1 billion from the Treasury, according to its latest quarterly report.

Compared to those numbers, Fannie Mae’s half of the $153 million settlement is just a drop in the bucket. It’s also a fraction of what the Ohio pension funds claimed they were owed. Estimates cited by the plaintiffs said that Fannie Mae’s damages could range from $2.2 billion to $8.6 billion, according to the company’s latest annual report.

Nonetheless, the possibility that taxpayers are being forced to pay for Fannie Mae’s legal troubles, on top of already paying billions of dollars to rescue the company, is emblematic of Fannie Mae’s toxic legacy.

At the very least, Fannie Mae and its regulator should explain how taxpayers will be affected by the settlement. It’s remarkable that a company that owes its survival to a taxpayer bailout—and the regulator responsible for overseeing it—won’t answer basic questions about what’s at stake for taxpayers. We hope the judge calls on the parties to provide more sunlight.

Image by FutureAtlas.com

By: Michael Smallberg
Investigator, POGO

Michael Smallberg, Investigator Michael Smallberg is an investigator for the Project On Government Oversight. Michael's investigations center on oversight of the financial sector.

Topics: Financial Sector

Related Content: Bailout, Financial Oversight

Authors: Michael Smallberg

Submitted by POGO at: May 21, 2013
grover5, thank you for pointing out the confusion in that sentence. The pension funds represent a class of people that includes approximately 30 million Americans, but not all of them are in Ohio. We have removed the 30 million figure to clarify that point.
Submitted by grover5 at: May 21, 2013
30 million teachers in Ohio receive a settlement of 153 million...that's a little over $3 each isn't it? Are we sure that wasn't 30 thousand teachers on Ohio?
Submitted by mactheknife at: May 19, 2013
someone please show this to Elizabeth "the tigar of the Senate"
Submitted by Coggs at: May 18, 2013
Freddy Mac and Fanny Mae front massive substandard construction practices. As a home inspector for HUD I was aware of the massive fraud made possible by government neglect. Contractors with very few exceptions knowingly build substandard housing and sell it to the public without a care. The banks with knowledge mortgage homes that they openly admit they would never mortgage if they had to hold on to the paper. We live on the Castle Mountain Fault. It is predicted to rupture in the near future with a 6.9 to 7.3 magnitude in the near future. According to all the rearch done on seismic engineering the owners of the houses with in ten miles of the fault will suffer substantial preventable damage to their homes. These substandard homes are the collateral for government backed loans. Houses built without seismic engineering are one tenth to one/one hundredth as strong as they should be. I wonder what calamity will occur when HUD Freddy Mack and Fanny Mea are taken out of the mortgage business. Will bankers mortgage the home they know are substandard on a fault line? My guess is no they will not.
Submitted by postprandial75 at: May 18, 2013
Thank You, Michael Smallberg!
Submitted by M-L at: May 18, 2013
Does this not prove that the government and our ruling plutocracy are purposely living off the hard labor of the American people? how blind can you be?
Submitted by lindablue at: May 18, 2013
This is insane.
Submitted by barbarabrandt at: May 18, 2013
Countrywide Bank provided FHA loans and I received one. I have mixed feelings here. The scam that has been uncovered by the FBI applies to what I went though but I am not sure how many other Senior Citizens had this experience. We were screwed big time. I was not told about Fannie Mae's role in my loan. The pages for each subject were behind the Countrywide pages. However, the FHA inspection did not make sense. I finally saw that document and asked the broker about it. I will not detail his lies. However, the investigation I have read about underwriting, brokers and appraisers tells me that somewhere in this mess, Fannie Mae either did not care or they did not look. You can say Fannie Mae got screwed but the facts as I see them are that Fannie Mae knowingly or unknowingly did not protect American tax payers or people being told that they qualified for an FHA loan, use your equity to fix your house because you will not get a set aside because Fannie Mae has different standards for HECM mortgages, etc. I do not see that broker, the employer (just found out this year) named Bank of America, or the appraiser being targeted by the State I live in. I do see that Fannie Mae allowed these low life individuals to target old houses, old people like me, people who had limited resources, people that needed their homes for security, etc., to misrepresent HECM loans, to forget to mention that their $225K home would require a second lien of over $300 for Fannie Mae!!! What does that mean? If I sell my house tomorrow to pay back the banks what do I pay back? Also, no mention that Fannie Mae has a different interest rate then that bank. Yes, confusion is in the world of HECMS but they are being shoved down the throat of Senior Citizens on the Interent. Such a great idea! But the reality is if you use your equity, your interest rate is not the same as your loan and there are at least two loans and if your principal is at a lower rate than an equity loan and Fannie Mae is increasing your fees and your interest rate separately from the bank, you have no way of understanding any of this if you ask the bank. In the end, after about 5 years, you will have nothing and you will begin to see a negative principal! I know of one women who even if she gives her home to the bank today, she will owe $13K. She had no idea how that happened. So how can Congress implement such a scheme? How can the DOJ ignore what is going to happen to hundreds of thousands of people in the last part of their lives because of this artful snake oil crowd? The CFPB seems castrated on this subject. My State AG wants me to make a brief statement on what the bank has done to fix my complaint. So, it is Fannie Mae who is blind to their own policies with banks? Is it the underwriters who know what they are doing is wrong but they do it anyway? It is the women who had the courage to bring this to the attention of the FBI? And has it been fixed? If we do not stop these loans and this misconduct and lack of accountability by banks and underwriters, brokers and appraisers, we can't fix it and the Americans that take loans in good faith, the tax payers who allow these loans, will never get justice.

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