Tim Pagliara of Cap Wealth Management Outlines the Pending Lawsuit Involving Violations of the Administrative Procedures Act

Tim Pagliara of Cap Wealth Management Outlines the Pending Lawsuit Involving Violations of the Administrative Procedures Act


Live from Music Row Tuesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. –  host Leahy welcomed Tim Pagliara CIO of Cap Wealth Management to the studio to discuss the Supreme Court case that will address violations of the Administrative Procedures Act and the two issues of constitutionality and whether it will go back to the trial court for damages that shareholders are entitled to.

Leahy: Our guest is Tim Pagliara, author of Another Big Lie: How the Government Stole Billions From The American Dream of Homeownership and Got Caught. By the way, Tim, thanks so much for coming down to our Studios on Music Row. It’s kind of fun, isn’t it?

Pagliara: It’s a blast.

Leahy: I know you love radio, t0o. Everybody loves the radio.

Pagliara: I got a face for radio.

Leahy: So do I. I mean, you know, I get here at 5:05 a.m. in the morning. I don’t look, you know, not ready for prime-time cameras. I’ll tell you that for sure. So we’re talking about this case. Your book fantastic book – doing very well. It’s on Amazon and is number one in banking and finance right now.

Pagliara: Yes.

Leahy: And by the way, go get the book right now at Amazon.com. Just check out Another Big Lie. You’ll be able to order it and have it in your house in a day or two.

So what I find interesting about this: September 2008 is when the government, George W. Bush made the bad decision, as you said, to place Freddie Mac and Fannie Mae the mortgage purchasing institutes of qualified governmental institutes into conservancy. Then in 2013, ’14, the Feds say, ‘Let’s keep it in the conservancy,’ and misrepresented really how well those organizations were doing.

Pagliara: Yes.

Leahy: The lawsuit doesn’t get filed until 2015 because the people that had their money basically taken away the investors.

Pagliara: Actually, the first lawsuit was filed in June of 2013, the Collins case.

Leahy: So there was a whole bunch of cases. Now, how much money do the plaintiffs, how much have they had to spend to get this case up to the Supreme Court? And how long is it? What’s the path been?

Pagliara: If you take all of the lawsuits collectively, my estimate is those plaintiffs have spent almost 100 million dollars.

Leahy: And just in legal fees.

Pagliara: Just in legal fees.

Leahy: How much of their money has been taken by the federal government, would you guess?

Pagliara: $350 billion?

Leahy: $350 billion?

Pagliara: Yes.

Leahy: Wow.

Pagliara: Big numbers.

Leahy: And going to, I don’t know, fund Obamacare? Things like that”

Pagliara: That’s one of the places that the money went. Treasury Secretary Mnuchin on Maria Bartiromo show admitted that. He wouldn’t pinpoint exactly where the money was spent. But it went for a variety of non-budget, appropriated purposes.

Leahy: Wherever they wanted to just have their little…fund not known to the public go.

Pagliara: That’s right. Exactly. And they were battling Grover Norquist. They were battling the constraints of the Budget Control Act, and they acted in their best interest in violation of the property rights of shareholders. This is a big case. They can take the assets of Fannie Mae and Freddie Mac. You can imagine what Elizabeth Warren can concoct with wealth taxes and just taxing individuals.

Leahy: That’s all in the works right now. These are the kinds of things that they’re contemplating, right?

Pagliara: Yes.

Leahy: So in this particular case, Collins versus Yellen. And Yellen versus Collins.

Pagliara: This case came to the United States Supreme Court after an en banc hearing in the Fifth Circuit.

Leahy: So the first step is to go to a district court.

Pagliara: That’s right.

Leahy: Then it goes to the Fifth Circuit court.

Pagliara: It went to the Court of Appeals. So the plaintiff lost at the district court level. They went to the court of appeals, and it was a split decision. The plaintiffs appealed to the entire circuit in an en banc hearing.

Leahy: So the way it works is in the Fifth Circuit, they would assign what, three judges to look at it?

Pagliara: Yes.

Leahy: And they lost there.

Pagliara: It was a mixed decision. So there was enough confusion between the three judges.

Leahy: So the Fifth Circuit, we have 11 circuits courts of appeal in the country, of course, the worst being the ninth out in California, where they’re all a bunch of lefties. It’s getting better. Tell us a little bit about the Fifth Circuit Court of Appeals here in our federal court system. Pretty good reputation?

Pagliara: Excellent reputation. They addressed civil rights in the 60s. They’ve had a reputation for taking on tough issues, being leaders, and thinking outside the box. And they decided to take this on in an En banc hearing.

Leahy: Now Let’s just stop and explain what an en banc hearing is for the Circuit Court of Appeals. What is that?

Pagliara: That’s when you take all of the justices and the different circuits, and they all come together collectively as a group, and they will hear additional arguments following a court hearing.

Leahy: So an en banc hearing of the Fifth Circuit would include 20 judges or something like that?

Pagliara: 16.

Leahy: 16 judges. And the Fifth Circuit covers Texas…

Pagliara: Parts of Louisiana.

Leahy: So here we go. There’s a sort of a split decision when the three-judge panel first reviews in the Fifth Circuit Court of Appeals, it goes en banc to all 16. What happens there?

Pagliara: Well, there are two issues before the court. One was whether or not the federal housing finance administrator, which was overseeing the conservatorship of Fannie Mae and Freddie Mac whether he was appointed constitutionally. Whether it was a constitutional appointment. And the Consumer Finance Protection Board case, which occurred earlier. The court found that that was unconstitutional.

Leahy: And by the way, it’s just for our listeners, the Consumer Financial Protection Board.

Pagliara: That’s a mouthful.

Leahy: It really was unconstitutional when passed in the Dodd-Frank Bill 2010 – the brainchild of wait for it – our favorite Native American Senator, Elizabeth Warren. That’s her brainchild. And so that key element of that particular law was found unconstitutional.

Pagliara: And so they did the same thing. The director of the Federal Housing Finance Administration, which was overseeing the conservatorship, was appointed in exactly the same way as the CFPB.

Leahy: Got it.

Pagliara: And this is where you get into that fourth branch of government. The issue there was they wanted to create an agency that the executive branch of government couldn’t remove the director. That’s what they did with the CFPB. That’s what they did with FHFA. And in the CFPB, the court ruled that that was unconstitutional. It had to be removable.

Pagliara: That’s right.

Leahy: And that’s why when Biden got elected, they got a new head of the CFPB.

Pagliara: So with the Fifth Circuit, the first issue is constitutionality. The Fifth Circuit already ruled that it was unconstitutional. They were split on the remedy. The issue before the Supreme Court is whether or not the plaintiffs are entitled to prospective or retroactive relief. If retroactive relief…

Leahy: It’s a lot of money.

Pagliara: It’s a lot of money.

Leahy: It’s like $350 billion.

Pagliara: Most legal scholars don’t believe that the plaintiffs, the shareholders, will get retroactive relief. They’ll get prospective relief and the President will be able to remove the Director immediately at will. It will be an at-will appointment like any other cabinet appointment.

Leahy: Too bad this case wasn’t decided before January of 2021, I think.

Pagliara: Well, President Trump honored the rule of law, and he waited for this to happen. And so he actually did a very good job with that. Now, the second issue before the court is called the Administrative Procedures Act [APA].

Leahy: 1950 act that sort of was the beginning of the decline of the legislative branch here in America because it’s been abused so much by the rulemaking procedures of various departments, cabinets, and agencies.

Pagliara: And so the violation of the APA, this is the governor that regulates the 10,000-pound gorilla being the federal government. the federal government tends to crush everybody that they get into litigation with. In fact, you can’t even get an injunction against it.

Leahy: So if the Department of Justice decided to go after somebody, for whatever reason, just even if you were totally innocent of any of these charges or claims, your legal fees would be, what? A half a million bucks, at least a million to defend?

Pagliara: Millions.

Leahy: Not exactly a fair deal.

Pagliara: It’s not a fair deal. So the court ruled that the government violated the APA, violated the very statute that they’re supposed to enforce that has been remanded to the trial court.

Leahy: Sent back.

Pagliara: And so the Supreme Court intervened, and they’re going to weigh in on this. So they got the two issues. They got constitutionality, and they have the whole issue of whether this goes back to the trial court for damages that the shareholders are entitled to.

Leahy: This will be fascinating to follow when we get back. I know you’re not in the land of being a predictor, but we’ll want to look at a couple of the possibilities that will come down in this very interesting Supreme Court decision.

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Cap Wealth Management’s Tim Pagliara Talks the Supreme Court Case of Collins v. Mnunchin

Cap Wealth Management’s Tim Pagliara Talks the Supreme Court Case of Collins v. Mnunchin


Live from Music Row Tuesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. –  host Leahy welcomed Tim Pagliara in studio to discuss the upcoming May Supreme Court decision regarding Collins v. Mnunchin.

Leahy: In studio, our good friend Tim Pagliara author of Another Big Lie: How the Government Stole Billions From the American Dream of Homeownership and Got Caught. So, Tim, the Supreme Court is going to hand down its decision sometime in what, May, you think?

Pagliara: Typically, what happens you can count it down 84 days after oral argument, which would put the decision sometime in May. So they’re in the deliberation phase right now. They’re reconciling the different opinions that the judges have towards this. The more difficult the decision, the longer it takes. But sometime around the first of May.

Leahy: So 84 days, have you studied this? And you know that over the course of the past decade, it’s about 84 days from oral argument.

Pagliara: That is it’s the number that’s the number. You leave nothing to chance Tim. That’s very interesting. Let’s speculate now, do you think the oral argument was in December?

Pagliara: December 9.

Leahy: So are they in that big room right now just deliberating or are they writing their own separate opinions on it? What’s the likelihood? We are at March 23 today?

Pagliara: My understanding is they go through a series of caucuses and depending upon how hot the issue is and how divided the court is, they will try and come together and reconcile. That’s how you get 5-4 opinions, 7-2. I think one of the most recent opinions was 8-1.

Leahy: And John Roberts being the only dissenter. Don’t even get me started on John Roberts. So based upon my read of how the more liberal members of the court weighed in on this, I would not be surprised at a 9-0 opinion, which would be incredible.

Leahy: In favor of the prentice.

Pagliara: Or 7-2 or something along those lines and on the two counts. I think the constitutional claim is a slam dunk, but I don’t think the plaintiffs are going to get backward relief. I think they’ll get forward relief.

Leahy: The backward relief, is that just a matter of just the scale of the amount of money involved, or is it the legal principle?

Pagliara: It’s both. But also it has rippling implications for a lot of other federal agencies where you have appointed and you’ve got acting directors, you’ve got different issues related, and typically the court will take an easier route out. And I don’t think they’ll address that difficult issue because it opens up a Pandora’s box. Now, for the same reason, I think they will come down with a very, very strong opinion on the APA claim and theft.

Leahy: The Administrative Procedures Act claims to be unconstitutional the way it’s being implemented.

Pagliara: Usurps their authority.

Leahy: Usurps their authority. That’s a common phrase for the federal government, and they

Pagliara: I think there’ll be some teeth, because, as we were talking about in the previous segment, there’s not just one. This is not just one case. This is the one that hit the Supreme Court. There are other cases. For example, Judge Lamberth in the D.C. Circuit. He’s got a case that’s going to go to trial. And this is the one that will put a dagger through the Justice Department’s heart.

They filed a false AFFE affidavit in a lawsuit and they lied to a federal judge. They said that these companies were in a death spiral, and they had just been briefed by the chief financial officer and the outside auditor. It’s on the record. It’s indisputable that they were entering a golden age of profitability.

Leahy: See, here’s the thing, though, there was an FBI agent lawyer who filed the false affidavit with the FISA court got a slap on the wrist.

Pagliara: Well, here’s how this is different. Tell me you remember that commercial, ‘It’s not nice to fool with Mother Nature,’ you know? Well, it’s not nice to fool with a federal judge. They lied to a federal judge. Different than a FISA court judge, to some degree. And this federal judge now controls these proceedings.

And when the case was remanded back to him, he was embarrassed because his ruling where he dismissed the case in 2014, he was a domino. People respected him for his opinion, and a lot of them just fell back on their good friend Royce Lamberth’s judicial prowess. So when they came back to him and he knew they had lied to him he had to set the stage for what the government was going to have to be tried for. The government has to answer in front of a jury whether they complied with the covenant of good faith and fair dealing that’s embedded in every contract.

Leahy: Very interesting.

Pagliara: They cannot win. And so the judge set the government up to fail. And he’s just sitting back, watching now. He’s intently curious as to who’s going to certify a trial record with a perjurious affidavit that they’re taking discovery. So they want to end this because it is not going to end well for them.

Leahy: On the Supreme Court case when they rendered their decisions are the attorneys and the plaintiffs like every day in May when they get up, do they file at 10 am in the morning and just hit the refresh button every day?

Pagliara: Every day.

Leahy: Is that what happens?

Pagliara: That’s what happens. And I know all the attorneys. I’ve worked with every one of them. David Thompson, who did the oral argument, he and I’ve become good friends.

Leahy: He’s got a little blurb on your book that he talks about how this was the largest and most brazen expropriation of private property in the nation’s history. David Thompson, managing partner of Cooper and Kirk.

Pagliara: You remember Charles Cooper? Charles Cooper represented. He was one of the attorneys in Bush versus Gore.

Leahy: It’s a very high-powered law firm. But all the clerks, the young associates are there hitting refresh. But every day in May, right?

Pagliara: It’s like waiting for your wife to have a baby.

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Cap Wealth Management CIO, Tim Pagliara Talks About His Book and Outlines the Two Upcoming Lawsuits Surrounding Fannie Mae and Freddie Mac

Cap Wealth Management CIO, Tim Pagliara Talks About His Book and Outlines the Two Upcoming Lawsuits Surrounding Fannie Mae and Freddie Mac


Live from Music Row Tuesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. –  host Leahy welcomed author and financial advisor Tim Pagliara to the studio to discuss his book and the conservatorship of Fannie Mae and Freddie Mac and two looming lawsuits.

Leahy: Tim Pagliara author of a great new book, Another Big Lie: How the Government Stole Billions from the American Dream of Homeownership and Got Caught. So this is all related to him to the 2008 financial crisis and a lawsuit stemming from that. Give us the story.

Pagliara: Lots of lawsuits. So the Fannie Mae and Freddie Mac were put in conservatorship like a lot of banks.

Leahy: When was this?

Pagliara: September 2008.

Leahy: Okay, we remember that was the big campaign going on there, McCain versus Obama. End of September big joint conference. And they declared a financial crisis, and we’re going to do a whole bunch of different things to try and stop it.

Pagliara: And as I outlined in detail in my book, they never should have been put into conservatorship. Conservatorship holds an asset for someone else. In this case, it was the shareholders. They were supposed to work with them, build capital, make them stronger, and get them out of conservatorship. 12 years later, that’s still not the case.

Leahy: Let’s just set the stage here. So part of the actions taken by President George W. Bush then…

Pagliara: Yes.

Leahy: Was to put Fannie and Freddie Mac into conservativeship as of September of 2008. Wrong choice.

Pagliara: Wrong choice. President Obama was faced with a little thing called the Budget Control Act. Remember, old friend Grover Norquist.

Leahy: Americans for Tax Reform?

Pagliara: That’s right. And so they had constraints on the budget. Fannie Mae and Freddie Mac were two of and still remain two of the most profitable companies in the world. And so they had written down all these assets. And in 2012, a plan hatched by Jack Lew, Tim Geithner and the rest of the Obama Treasury.

Leahy: Tim Geithner, the Secretary Treasury.

Pagliara: And then Jack Lew succeeded him. So they came up with the idea that they were going to keep Fannie Mae, Freddie Mac, and Conservatorship forever in violation of the statute that they were put into conservatorship with.

Leahy: Did they get away with that?

Pagliara: Well, so far, they have. They filed a false affidavit in federal court. They said that Fannie and Freddie were in a death spiral. And so they justified taking 100 percent of the earnings and profits of these two corporations in perpetuity.

Leahy: And where did those profits go?

Pagliara: They went to the United States Treasury.

Leahy: To prop up a budget that was out of control. Am I right?

Pagliara: That’s exactly right. And it was non-budgetary revenue. It was very controversial at the time. President Obama needed money for the cost-sharing reimbursements of the Affordable Care Act. And he had this non-budget revenue. So he was able to direct it to different places he wanted outside of the appropriations process of Congress. And that’s where everything started going wrong.

Leahy: Let’s just stop. When you say, outside the appropriations process of Congress. I was listening to Newt Gingrich the other day, former Speaker of the House and he says, look, we don’t have an appropriation process or even a legislative process in America today. That was what was intended by the founders when they put this together.

Pagliara: Madison Federalist 51. If men were angels, we wouldn’t need government because they’re not. What kind of government do we need? And Congress has always attempted to create this fourth branch of government where they get outside of the legislative and the executive and judicial review.

Leahy: So tell us about the lawsuit that has been involved here. The major one, what are the details of that and what your books about?

Pagliara: There are two different lawsuits. One is in the U.S. Court of Claims. It’s a taking case. That’s where every case goes where you’re alleging and unconstitutional, taking property, and access to $10,000. The second group of lawsuits are in federal court. And there are various different circuits in the federal court system. The one that was heard in December’s oral argument, Collins versus Yellen now. It was Collins versus Mnunchin. They substitute the new Treasury Secretary because they are suing the United States Treasury.

Leahy: Who was Collins?

Pagliara: Collins was just an individual investor that felt like the government stole his money, violated the terms of the conservatorship by taking 100 percent of the earnings and profits in perpetuity.

Leahy: His money was what invested in Fannie Mae?

Pagliara: Fannie Mae and Freddie Mac.

Leahy: Okay, so he put x amount of money into Fannie Mae and Freddie Mac.

Pagliara: And he got a little upset because the government took it all.

Leahy: Took it all.

Pagliara: 100 percent. And backtracking where I said, after they concocted this scheme to take 100 percent of the earnings and profits, they declared in front of a federal judge, they lied to a federal judge, and they said, these companies are in a death spiral.

Leahy: When you say they lied. Who lied and when?

Pagliara: The Treasury. Mario Yulette, who was your Treasury official. He filed a false affidavit, and Judge Lamberth’s Court in the D.C. Circuit said they were in a death spiral. And then we found out when we were finally able to take depositions, the chief financial officer of Fannie Mae, had just briefed them that they were entering a golden age of profitability.

And so by three months later, they had to delay their financials. In the first quarter of 2013, they had wrote up assets and paid the largest single dividend to the United States Treasury in the history of the country. It was so large that Jack Lew sent a letter to John Boehner and said, hey, we’re going to delay the budget crisis a little bit. We just found $60 billion. And they paid $60 billion to the government.

Leahy: And it’s still in conservatorship.

Pagliara: And it was still in conservatorship.

Leahy: Today it is still in conservatorship.

Pagliara: And since then, they have paid back over $350 billion to the United States Treasury.

Leahy: So let me ask you this. So the investors, the people who had invested in Fannie Mae AND Freddie Mac, That’s where their investment was?

Pagliara: That’s where their investment was and still is.

Leahy: If they win this lawsuit, are they going to get a lot of money?

Pagliara: The companies are going to declare the money that the government advanced them paid at 10 percent interest. Even the interest rate was high. Declare paid and they’ll go back to the capital markets and they’ll recapitalize and release. They’ve changed their regulations for all financial institutions. They have to hold more capital than they did prior to the financial crisis.

There are a lot of things that have changed. But in 12 years, Fannie Mae and Freddie Mac are even better into these than they were to serve the American homeowner. Their mortgages. They buy mortgages of less than $512,000. So the average Fanny Mae mortgage is $250,000.  I mean, there are people that pay that much for cars now. So they serve Middle America. They serve first-time home buyers. They are indispensable in our financial system. They fill a hole that no one else has been able to fill.

Leahy: Now, first question, the book that you sent to the Supreme Court justices, do you think they’ll read the book?

Pagliara: I don’t know. (Leahy laughs) But if one of them picks it up and starts to read it will be fun. They don’t need my book to obviously to render a decision that’s in front of them. And it was a cheeky move. But the solicitor general, it’s just typical.

Leahy: Cheeky Tim Pagliara writes the book he sent to the nine Supreme Court justices.

Pagliara: No, it was a cheeky move by the solicitor general to send a letter and mislead the court. Totally inappropriate while the judges are in deliberation. They’re in the actual deliberation phase of the process that they go through following oral argument and we expect an opinion by May first. Sometime in May.

Leahy: So the oral argument has already been made.

Pagliara: It’s already been made. The fascinating point, though, about that, especially for a conservative radio talk show host. The most liberal members of the court, led by Justice Breyer, gave the government the hardest time in oral argument. They said, you nationalized these companies, and lawyers for the government said no, I didn’t. Yes, you did. You did it nationally. He said it three different times.

Leahy: Breyer?

Pagliara: Breyer.

Leahy: Okay, so now my head is spinning, right? Now Briar was pressing about these oral arguments heard in December? So we had Amy Coney Barrett. We had Kavanaugh, Gorsuch, the three Trump appointees. Did they ask any decent questions?

Pagliara: They did, but they kind of got drowned out by the Liberal members of the court.

Leahy: Who asked better questions?

Pagliara: They were on it. Gorsuch threw his hands up there, and he said, oh, my gosh, this is a heavy lift. I mean, this is a $350 billion theft.

Leahy: Wow. Wow.

Listen to the full third hour here:

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Tune in weekdays from 5:00 – 8:00 a.m. to the Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio