Judge Sweeney Rules on Jurisdictional Discovery

Following today’s status conference in the Court of Federal Claims, Judge Sweeney issued a ruling on the issue of jurisdictional discovery.

Jurisdictional discovery to proceed as expected and the production of documents to commence (to occur in phases as detailed below).

Documents will be subject to a protective order.

Some interesting and notable comments from Judge Sweeney as part of this ruling:

"With respect to defendant’s claim that the court lacks the authority to affect the exercise of the FHFA’s powers or functions, the court agrees with the case law of the United States Court of Appeals for the Ninth Circuit, which states that the “FHFA cannot evade judicial review. . . simply by invoking its authority as conservator."

"Indeed, "Congress did not intend that the nature of the FHFA’s actions would be determined based upon the FHFA’s self-declarations . . . ." Leon County, 700 F.3d at 1278."

"Here, defendant has not provided a privilege log explaining why documents identified as responsive to plaintiffs’ discovery requests would be protected. Indeed, defendant admits that even it has not reviewed some of them, and yet claims that the documents are privileged."

"Without more detail regarding the content of the documents, or the opportunity to review them, the court cannot make a finding that they fall under the privilege."

"However, even as it is difficult to evaluate the likelihood of the fallout from disclosure that defendant describes, out of an abundance of caution, the court will exercise care in attempting to avoid the dire consequences that defendant claims will occur. Accordingly, as outlined in the June 19, 2014 hearing, the court has fashioned a solution to balance the parties’ competing needs, and to comply with the dictates of the deliberative process privilege."

"Jurisdictional discovery in this matter will proceed in phases. In the first phase, defendant shall respond to discovery requests regarding information from: April 1, 2008, up to and including December 31, 2008; and from June 1, 2011, up to and including August 17, 2012. Defendants shall prepare a detailed privilege log for all documents from these respective time periods that it asserts are privileged. In addition, defendant shall respond to discovery requests for non-privileged information from August 18, 2012, up to and including September 30, 2012, regarding topics other than the future profitability of the enterprises or whether and when the conservatorships might end. Subsequently, plaintiffs shall inform the court as to whether they believe that discovery for documents created after these time periods are necessary."

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A Perspective on the Johnson-Crapo Proposal

Fannie and Freddie on Steroids

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http://www.livefreeblog.com/fannie_and_freddie_on_steroids

By John Berlau - National Review
Hardly a reform, Johnson-Crapo expands government intervention in the mortgage industry.

A corollary to Shakespeare’s adage “A rose by any other name would smell as sweet” is that “garbage by any other name would smell as awful.”

The latter seems apropos to the “reform” of the government-sponsored housing enterprises, Fannie Mae and Freddie Mac, introduced by senators Tim Johnson, (D., S.D), and Mike Crapo, (R., Idaho) — the top Democrat and Republican on the Senate Banking Committee — and set to be marked up on Tuesday. A new letter signed by 26 conservative and free-market groups — including the Competitive Enterprise Institute, Club for Growth, FreedomWorks, Americans for Tax Reform, National Taxpayers Union, and the American Family Association — argues that Johnson-Crapo “does not constitute real reform, but an expansion of the type of government intervention that fueled the housing crisis in the first place.”

While the media often characterizes this plan as “ending” Fannie and Freddie, most of the two government-sponsored enterprises’ functions would simply be transferred to a new giant government entity, the Federal Mortgage Insurance Corporation — or what we might call Feddie Mic. Not only would the government’s role in subsidizing and micromanaging housing not be reduced, in many ways it would be substantially increased.
Further, the legislation would create an explicit taxpayer guarantee of the government-sponsored enterprises’ $5.6 trillion in debt, and housing “trust funds” would be created anew within Feddie Mic. These trust funds, a brainchild of former representative Barney Frank (D., Mass.), are potential slush funds for politically motivated “housing advocates” such as the now-defunct ACORN.

Worst of all, and sending the worst possible signal to the potential private-sector investors who are needed for a private housing market to thrive, Fannie and Freddie’s shareholders would be wiped out permanently under the bill’s Section 604.

Fannie was created as a government agency in 1938 and spun off as a government-sponsored enterprise (GSE) in 1968. Freddie was created as a sister GSE two years later. Even though they had private shareholders, they always retained government privileges: They were exempt from state and local taxes, and, importantly, each had a $2 billion line of credit with the U.S. Treasury.

Back in 2000, the Competitive Enterprise Institute’s founder, Fred Smith, predicted in his testimony before Congress that “as long as the [government] pipeline is there, it’s very expandable. . . . It could be $200 billion tomorrow.”

Many dismissed Smith’s prediction at the time, but it turns out he underestimated the ultimate tab to taxpayers for the bailout orchestrated by the Bush administration, which put the GSEs under conservatorship at the height of the financial crisis in 2008. While the Obama administration estimates the cost at $188 billion, the Congressional Budget Office’s “fair value” accounting puts it at $317 billion.

But the real cost to taxpayers came from Fannie and Freddie’s role in partnering with banks in issuing new subprime mortgages. As documented in the groundbreaking book Reckless Endangerment, co-authored by New York Times’ Pulitzer Prize–winning business columnist Gretchen Morgenson and financial analyst Joshua Rosner, the GSEs had key roles in providing invaluable assistance to bad actors in the private sector, including the notorious Countrywide Financial.

The American Enterprise Institute’s Peter Wallison, a commissioner of the congressionally created Financial Crisis Inquiry Commission, points out in a Wall Street Journal op-ed that in September 2008, “half of all mortgages — 28 million — were subprime or otherwise risky and low-quality,” and of these, “74 percent were on the books of government agencies, principally the GSEs.”

After years of minimizing the role Fannie and Freddie played in the crisis, many liberals as well as longtime housing “subsidy suckers” (in the parlance of the intrepid Washington Examiner columnist Timothy P. Carney) in the real-estate and construction industries are hailing the Johnson-Crapo “reform” and saying the GSE model has “failed.” But it’s important to understand why they believe it has failed. Incredible as it may seem, they believe the GSEs are being too stingy and see Johnson-Crapo’s proposed Feddie Mic as a way of prying open government-backed credit spigots even further.

For instance, in Friday’s Wall Street Journal, Jason Furman and James Stock, respectively the chairman and a member of President Obama’s Council of Economic Advisers, hit Fannie and Freddie in an op-ed for “not making transparent sustained contributions to affordable housing.” They call for a “reformed housing finance system” in which the government would “stimulate broad access to mortgages for historically underserved communities.”

Under Johnson-Crapo, Feddie Mic would replace the GSEs’ purchase of mortgages by serving as the backstop for mortgage-backed securities issued by financial powerhouses. But this is likely to make the moral hazard even greater and entrench “too big to fail” even further. As Reckless Endangerment co-author Rosner has written, “Unfortunately, the bill replaces Fannie and Freddie with an untold number of new government-sponsored enterprises by handing a massive taxpayer backstop to the nation’s largest banks”

Much is made by Johnson-Crapo supporters of how private owners will take at least 10 percent of the loss on mortgage-backed securities that Feddie Mic insures. But that still leaves 90 percent to be absorbed by Feddie Mic, and even 100 percent when the government declares “unusual and exigent circumstances” in the housing market.
Other beneficiaries would be big-government housing advocates, since the “Housing Trust Fund” the Johnson-Crapo plan creates within Feddie Mic bears a remarkable similarity to that which used to exist within the GSEs. The trust fund lay mercifully dormant under the financial management of the GSEs by Bush administration holdover Ed DeMarco.

But advocates are hoping DeMarco’s replacement, former representative Mel Watt, a North Carolina Democrat, will restart it. And now, the fact that a bipartisan “reform” plan gives the “trust fund” its blessing will only strengthen Watt’s hand in bestowing this patronage.

And to foot the bill for this generosity to both advocacy groups and businesses, Johnson-Crapo codifies the Obama administration’s policy of wiping out completely Fannie and Freddie’s private shareholders, including community banks, pension funds, and middle-class investors.

In August 2012, then–treasury secretary Tim Geithner issued the “Third Amendment” to the GSE conservatorship in which all profits would be siphoned off to the U.S. Treasury Department in perpetuity, even after the GSEs paid back what they owed to taxpayers. Section 604 of Johnson-Crapo states that the Obama-Geithner policy “should not be amended, restated, or otherwise changed.”

As NRO’s Jillian Melchoir has written of the Obama-Geithner earnings raid codified by Johnson-Crapo, “It would have been one thing if the Treasury had barred shareholders from profits until taxpayers were repaid for the Fannie and Freddie bailouts, but an undisclosed and permanent ban on profits is extreme.” Ike Brannon and Mark Calabria make the point in a recent paper for the Cato Institute, “If we hope to rebuild our mortgage finance system on a foundation of private capital, then property and contractual rights must be respected.”

The best option to end the risk posed by the GSEs to taxpayers and the economy is an orderly liquidation of their assets, with no government-backed entity to replace them.

As Fred Smith urged Congress in 2000 — to mostly deaf ears — policymakers should “develop a divestiture or breakup plan for Fannie and Freddie.” And in such a plan, as in traditional bankruptcies, the rights of both taxpayers and private investors should be sacrosanct.

— John Berlau is senior fellow for finance and access to capital at the Competitive Enterprise Institute.

 

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Mel Watt Signals Broad Shift in Housing Policy

WASHINGTON—The Obama administration and federal regulators are reversing course on some of the biggest postcrisis efforts to tighten mortgage-lending standards amid concern they could snuff out the fledgling housing rebound and dent the economic recovery.

On Tuesday, Mel Watt, the newly installed overseer of Fannie Mae and Freddie Mac, said the mortgage giants should direct their focus toward making more credit available to homeowners, a U-turn from previous directives to pull back from the mortgage market.

FHFA director Mel Watt, pictured in Washington this month, took the helm of the agency in January.Bloomberg News

In coming weeks, six agencies, including Mr. Watt's, are expected to finalize new rules for mortgages that are packaged into securities by private investors. Those rules largely abandon earlier proposals requiring larger down payments on mortgages in certain types of mortgage-backed securities.

The steps mark a sharp shift from just a few years ago, when Washington, scarred by the 2008 crisis, pushed to restrict the flow of easy money that fueled the housing bubble and its subsequent bust. Critics of the move to loosen the reins now, including some economists and lenders, worry that regulators could be opening the way for another boom and bust.

For the past year, top policy makers at the White House and at the Federal Reserve have expressed worries that the housing sector, traditionally a key engine of an economic recovery, is struggling to shift into higher gear as mortgage-dependent borrowers remain on the sidelines.

Both Treasury Secretary Jacob Lew and Federal Reserve Chairwoman Janet Yellen last week noted the housing market as a factor holding back the economic recovery.

Mr. Watt, the former North Carolina congressman who took over as the director of the Federal Housing Finance Agency in January, used his first public speech on Tuesday to lay out the shift in course for Fannie and Freddie, and pegged executive compensation at the companies to meeting the new goals.

Fannie and Freddie, which remain under U.S. conservatorship, and federal agencies continue to backstop the vast majority of new mortgages being issued.

The FHFA has recently attempted to lure private investors back into the housing-finance market—and reduce the Fannie and Freddie footprint—by raising the cost of government-backed lending.

 

With few signs that private investors are returning on a large scale, Mr. Watt signaled a clear break with his predecessor, Edward DeMarco, who left the FHFA last month after nearly five years as its acting director.

"I don't think it's FHFA's role to contract the footprint of Fannie and Freddie," Mr. Watt said during a discussion at the Brookings Institution in Washington. Winding down the companies without clear proof that private investors are willing to step back in "would be irresponsible."

His comments signal a move away from treating Fannie and Freddie as "institutions in intentional decline" towards "institutions that should be better prepared to form the core of our system for years to come," said Jim Parrott, a former housing adviser in the Obama White House.

Mr. Watt's remarks are significant, given legislation to overhaul the mortgage-finance giants and replace them with a new system that reduces the government's role in housing appears headed for a dead end in the current session of Congress.

Mr. DeMarco in a separate speech at a banking conference in Charlotte, N.C., on Tuesday, urged restraint: "Do not confuse weakening underwriting standards and underpricing risk with helping people or promoting market efficiency."

The new steps are the fruit of three years of strenuous pushback by those opposed to tighter lending standards.

In the wake of the 2010 Dodd-Frank law, regulators proposed a spate of new rules intended to eliminate questionable mortgage products and remove any incentive banks had to make loans unlikely to be repaid.

Among the biggest changes that were proposed: Borrowers would either have to put 20% down, or the bank would have to retain 5% of the loan's risk once it was sliced, packaged and sold to investors.

The March 2011 proposal triggered a huge outcry from lawmakers, affordable-housing groups and the real-estate industry, all of whom said it would put the brakes on homeownership for millions of credit-worthy borrowers, particularly first-time buyers and minorities.

The potential for a high down payment also raised alarm bells at the Department of Housing and Urban Development, one of six writing the rule, according to government officials.

HUD officials agitated for a gentler approach, telling counterparts that a high down payment wasn't the only way to prevent defaults, but would likely destroy any chance for a housing-market recovery.

At a meeting before the rule was proposed, a HUD official warned fellow regulators away from a 20% down payment, saying that "the impact is between uncertain and bad," according to a person familiar with the discussions.

When the five other agencies were not swayed, HUD took another approach and refused to sign off on the proposal unless a 10% down payment was included as an alternative. Regulators agreed.

By August 2013, more than 10,000 comment letters had poured in to the agencies, and the response was almost universal: Regulators should avoid a high down-payment level.

The groundswell caught the attention of U.S. policy makers, who began to worry about the collective impact of so much new regulation.

Regulators announced a series of steps Tuesday that they said could help ease standards—abruptly raised by lenders during the financial panic—and make it easier for first-time and other entry-level buyers.

Mr. Watt said that he would direct Fannie and Freddie to provide more clarity to banks about what triggers "put-backs," in which lenders have been forced to spend billions of dollars buying defective loans sold during the housing boom. To guard against future put-back demands, lenders say they have enacted standards that go beyond what Fannie, Freddie and other federal loan-insurance agencies require.

Mr. Watt said that he hoped that the changes would "substantially reduce" credit barriers, "and that lenders will start operating more inside the credit box that Fannie and Freddie" provide.

Shaun Donovan, the HUD secretary, announced on Tuesday similar changes designed to encourage lenders to reduce similar restrictions on loans insured by the Federal Housing Administration, which is part of his department.

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DEMOCRATIC REP. MAXINE WATERS UNVEILS GSE REVAMP PLAN

WASHINGTON, D.C. – Today, Congresswoman Maxine Waters, Ranking Member of the Financial Services Committee, released a comprehensive legislative proposal to reform the housing finance market. Known as the Housing Opportunities  Move the Economy (HOME) Forward Act of 2014, the legislation ends Fannie Mae and Freddie

Mac, and creates a new, cooperative-owned securities issuer.                   

For months, Waters has been working with her Committee colleagues, outside stakeholders, and consumer and affordable housing advocates to craft a measure that ends the incentives created by the ownership structure of the government-sponsored enterprises’ (GSEs) while preserving the role of small financial institutions,  providing a more flexible approach to placing credit risk in the markets, and ensuring access to affordable rental housing for low-income families.                    

“Reforming a 10 trillion dollar housing finance market is an immense undertaking that must be carefully considered,” said Congresswoman Waters.

“Fannie Mae and Freddie Mac’s return to profitability and repayment of taxpayer dollars has led some to rightly speculate  whether the enterprises need any reform at all. I believe that we have an opportunity to address some of the fundamental flaws of the current system, by ending the perverse incentives created by Fannie Mae and Freddie Mac's ownership structure and providing an explicit government guarantee that is paid for by industry.”                                               

The draft bill furthers a conversation started by legislation released by Senators Bob Corker (R-TN) and Mark Warner (D-VA) and, more recently, Senators Tim Johnson (D-SD) and Mike Crapo (R-ID).      

The foundation of the HOME Forward Act is a number of principles for housing finance reform, released by Committee Democrats in 2013. They include maintaining the 30-year fixed rate mortgage, protecting taxpayers, ensuring transparency, stability and liquidity within a new market, and preventing disruptions  to the U.S. housing market during a transition to a new finance system. In addition, the legislation will maintain access for all qualified borrowers that can sustain homeownership and ensure continued affordable rental housing.

The HOME Forward Act establishes a new, lender-owned Mortgage Securities Cooperative that will be the single issuer of government-guaranteed securities and will be governed on a one-member, one-vote basis. The Act creates an explicit government  guarantee, paid for by industry and used to capitalize a catastrophic insurance fund. It improves upon bipartisan proposals in the Senate by, for example, providing for credit risk sharing on a more flexible basis. Small financial institutions will have direct  access to a "cash window" in order to preserve their access to the secondary market. And the legislation recognizes the important role of the National Affordable Housing Trust and Capital Magnet Funds, and fulsomely addresses the multi-family market.                                                       

The HOME Forward Act would empower the government to provide for liquidity in the secondary mortgage market and ensure access to sustainable homeownership for creditworthy borrowers of all backgrounds and in all regions of the country.  At the same time, it would appropriately price for risk, protect taxpayers and level the playing field for large and small banks.               

Waters added, “I am hopeful that this legislation will continue to move the conversation on housing finance reform forward. While there are differences, this legislation and the two bipartisan proposals in the Senate embrace a number of  common themes. These include preserving the 30-year, fixed rate mortgage, protecting taxpayers from the costs of a housing downturn by establishing a strong new regulator, and ensuring that small and community financial institutions can participate in the  new system.”

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When Our Government Commits Fraud

The executive branch has behaved duplicitously in its dealings with Fannie and Freddie’s private shareholders.

Read the full article here >>

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Court Grants Fairholme's Discovery Motion in Fannie Freddie Suit

A federal judge on Wednesday granted Bruce Berkowitz’s Fairholme Funds Inc. a motion to conduct discovery in its lawsuit against the U.S. government that challenges changes that the Treasury Department made to its bailout of Fannie Mae and Freddie Mac.

The ruling marked an initial victory for shareholders in what figures to be a long-running battle with the U.S. government over its 2012 decision to require Fannie and Freddie to send all of their profits to the government as part of the mortgage companies’ 2008 bailouts.

Source: MoneyBeat - WSJ

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Restore Fannie Mae Receives Recognition!

Reuters article titled "How Ralph Nader learned to love Fannie and Freddie" by Bethany McLean.

Click Here

Thanks for all your support.  Let's continue the fight to restore fairness!

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In Bookstores Now: "The Mortgage Wars"

Source: Bill Maloni's Blog

Former Fannie CFO Tim Howard’s Book

The Mortgage Wars: Inside Fannie Mae, Big-Money Politics, and the Collapse of the American Dream

Many months ago, I was fortunate to review early drafts of “The Mortgage Wars,” a book by my friend and former Fannie Mae colleague Tim Howard, coming out later next month.

Publisher McGraw-Hill has been touting it on Amazon and the book is accelerating up the pre-sale list of books in that genre.

Tim started writing this book long before federal judge Richard Leon, a year ago, threw out “securities fraud” charges against Fannie Mae CEO Frank Raines, Fannie Comptroller Leanne Spencer, and Howard, which were brought by some shareholders who relied on a totally bogus and politically motivated Bush Administration finding that top Fannie officials misapplied new mortgage backed securities accounting rules. Quite the opposite as history showed.

Judge Leon Clears the Decks and the Air
The Leon decisions overtook Tim’s drafting and provided him with a very satisfactory result to the material he penned and story he began to tell, long before the legal victory was certain and unsealed.

Of course, coming eight years after the 2004 charges and lawsuit were lodged, the three principals couldn’t avoid the career setbacks, loss of prestige, diminished respect, and dislocation in their professional and personal lives.

“Lies have traveled around the world while the truth wakes up and brushes its teeth in the morning.”

And, as I’ve written before, the Bush Administration’s ideological decision to force out this top talent allowed new, less reliable execs to take command. (Heavy specifics of that are in Tim’s book, too.)

From 2005 until stopped, the “newbies” deviated heavily from Fannie’s historic conservative approach to mission, gorged and acquired  billions of dollars of worthless Alt A mortgages and Wall Street private label securities (PLS)—seeking yield and market share -- which brought down Fannie (and Freddie, too, which played its own version of that strategy).

Serious followers of this matter will enjoy reading Tim's authentic details, which have never before appeared in public. If they pay close attention, they will realize how exacting was the detailed and serious financial services work and analysis conducted at Fannie by the pre-2005 management.

Tim’s Turn
Last week, I asked Tim to describe the final draft sent to McGraw Hill.

One of the most bizarre aspects of the current debate on mortgage finance reform is that the consensus objective for reform-- getting rid of the GSEs and providing a greater role for the private sector-- was the goal of the anti-Fannie Mae cabal in the late 1990s and early 2000s, and pursuing it is what led to the 2008 mortgage crisis!  Why would anyone want to do the same thing again?   We shouldn't, but the major proponents of today’s ideas for mortgage reform are the large banks and their supporters, and they're the ones who control the narrative about what happened during the crisis.  The story they tell about the crisis is completely wrong, but before my book there has been no fact-based alternative view for anyone to consider instead.  That's what "The Mortgage Wars" will offer. It makes clear how and why the crisis evolved-- using actual events and developments in the correct sequence in which they occurred-- and it's told from the perspective of an insider who lived through the events he's relating.

As I've noted before, the mortgage crisis was the result of a fight between the supporters and the opponents of the GSEs over who would control the largest credit market in the world.  Fannie and Freddie always had been controversial, but the controversy got serious in the late 1990s, when two decades of banking deregulation produced giant financial services companies (mostly banks) with national ambitions who viewed Fannie and Freddie's dominant position in the mortgage market as a threat to those ambitions.  They came to Washington to try to convince policymakers and regulators to replace a mortgage finance system based on the GSE with one based on private-market mechanisms and incentives, with very little government involvement or regulation.  Fannie Mae fought back, and what I call "the mortgage wars" began.  The banks and their supporters succeeded in getting control of the mortgage standard-setting process in 2004-- when private label mortgage-backed securities accounted for over half of all new MBS issues for the first time ever-- and that got the bubble going.  Fannie Mae was pulled into it after OFHEO used allegations of accounting fraud-- subsequently shown by Federal District court judge Leon to have been completely invented-- to oust Fannie Mae's top leadership and force the company to change its risk management organization and practices.  But even with that, five years after crisis ended it is clear that Fannie Mae's mortgages performed twice as well as the banks' and four times better than those put into private-label securities.

The GSE-based system was the best and safest in the country's history.  The bank-based private-market system that replaced it in the mid-2000s-- with the support and assistance of the Treasury, the Fed and the Bush administration-- led to a catastrophic failure that ended up killing everybody, including the GSEs.  Anyone with an accurate understanding of what happened during the mortgage crisis, and why it happened, would be highly unlikely to ever again fall for the siren song of basing an $11 trillion market essential to the country's economic health on free-market principles with no government oversight or regulation.


THE REAL STORY OF THE MELTDOWN THAT LED TO THE FINANCIAL CRISIS

Many books have been written about the financial crisis and its causes, but none of them has been written by one of the key figures intimately involved in the drama. At last, one of those top insiders tells the complete story of the mortgage wars that almost destroyed the global economy.

In this no-holds-barred account, Timothy Howard exposes the perfect storm of money, power, ideology, and politics that led to the crisis. Howard was the CFO of Fannie Mae until 2004. At its peak, Fannie Mae was responsible for more than one out of every four home loans in the United States. But by the mid-2000s, what seemed to be the most successful mortgage finance system in the world completely broke down. What happened?

Howard takes you behind the scenes to show the dramatic struggles between the corporations and the politicians that led to the meltdown. In The Mortgage Wars, you'll learn:

  • How Fannie Mae was born and evolved into the largest mortgage lender in the world
  • How Fannie Mae survived the fi nancial turmoil that killed the thrift industry
  • How the subprime market grew, with very little oversight, and eventually exploded
  • How political and fi nancial jockeying sparked the mortgage wars
  • What we must do to prevent a similar financial crisis from ever happening again

At long last, this inside account tells the unvarnished truth about some of the most controversial subjects of our time, including the disturbing new norm of unsafe and unsound business practices in the finance world and the huge problems that arise when politicians try to pick winners in the global markets.

The Mortgage Wars tells the real story for the first time, showing how an $11 trillion dollar industry really fights its battles, for better or worse. Timothy Howard also shares his insights on how to keep the mortgage fi nance system safe, offering invaluable, prescriptive advice for all of us as we move forward into an uncertain future.

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The Untouchable Profits of Fannie Mae and Freddie Mac

Reads like a tug of war, but seem that we are passing the tipping point.  Crony Capitalism is being exposed step by step.

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Shareholder Respect Round Table with Ralph Nader

Ralph Nader at a roundtable discussing shareholder values.  There is also a petition, you may find it by clicking the "Take Action" tab above the video on the green ribbon.

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