2016 Annual Report
V. Financial Section
FSLIC RESOLUTION FUND (FRF)
|(Dollars in Thousands)||2016||2015|
|Cash and cash equivalents||$874,174||$871,037||Other Assets, net||4,391||760|
|Accounts payable and other liabilities||$26||$624|
|Resolution Equity (Note 5)|
|Total Resolution Equity||878,539||871,173|
|Total Liabilities and Resolution Equity||$878,565||$871,797|
|(Dollars in Thousands)||2016||2015|
|Interest on U.S. Treasury securities||$2,070||$298|
|Expenses and Losses|
|Goodwill litigation expenses (Note 3)||0||157,161|
|Losses related to thrift resolutions (Note 6)||(993)||(153)|
|Recovery of tax benefits||(3,750)||0|
|Total Expenses and Losses||(2,018)||160,072|
|Net Income (Loss)||7,366||(157,465)|
|Accumulated Deficit - Beginning||(124,618,144)||(124,460,679)|
|Accumulated Deficit - Ending||$(124,610,778)||$(124,618,144)|
|(Dollars in Thousands)||2016||2015|
|Interest on U.S. Treasury securities||$2,070||$298|
|Recoveries from thrift resolutions||2,270||2,555|
|Department of Justice's return of unused goodwill legal expense funds (Note 3)||2,162||0|
|Payments for goodwill litigation (Note 3)||0||(513,616)|
|Net Cash Provided (Used) by Operating Activities||3,137||(513,522)|
|U.S. Treasury payments for goodwill litigation (Note 3)||0||513,616|
|Net Cash Provided by Financing Activities||0||513,616|
|Net Increase in Cash and Cash Equivalents||3,137||94|
|Cash and Cash Equivalents - Beginning||871,037||870,943|
|Cash and Cash Equivalents - Ending||$874,174||$871,037|
FSLIC Resolution Fund
Notes to the Financial Statements
December 31, 2016 and 2015
1. OPERATIONS/DISSOLUTION OF THE FSLIC RESOLUTION FUND
The Federal Deposit Insurance Corporation (FDIC) is the independent deposit insurance agency created by Congress in 1933 to maintain stability and public confidence in the nation’s banking system. Provisions that govern the FDIC’s operations are generally found in the Federal Deposit Insurance (FDI) Act, as amended (12 U.S.C. 1811, et seq ). In accordance with the FDI Act, the FDIC, as administrator of the Deposit Insurance Fund (DIF), insures the deposits of banks and savings associations (insured depository institutions). In cooperation with other federal and state agencies, the FDIC promotes the safety and soundness of insured depository institutions (IDIs) by identifying, monitoring, and addressing risks to the DIF.
In addition to being the administrator of the DIF, the FDIC is the administrator of the FSLIC Resolution Fund (FRF). As such, the FDIC is responsible for the sale of remaining assets and satisfaction of liabilities associated with the former Federal Savings and Loan Insurance Corporation (FSLIC) and the former Resolution Trust Corporation (RTC). The FDIC maintains the DIF and the FRF separately to support their respective functions.
The FSLIC was created through the enactment of the National Housing Act of 1934. The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) abolished the insolvent FSLIC and created the FRF. At that time, the assets and liabilities of the FSLIC were transferred to the FRF – except those assets and liabilities transferred to the newly created RTC – effective on August 9, 1989. Further, the FIRREA established the Resolution Funding Corporation (REFCORP) to provide part of the initial funds used by the RTC for thrift resolutions.
The RTC Completion Act of 1993 terminated the RTC as of December 31, 1995. All remaining assets and liabilities of the RTC were transferred to the FRF on January 1, 1996. Today, the FRF consists of two distinct pools of assets and liabilities: one composed of the assets and liabilities of the FSLIC transferred to the FRF upon the dissolution of the FSLIC (FRF-FSLIC), and the other composed of the RTC assets and liabilities (FRF-RTC). The assets of one pool are not available to satisfy obligations of the other.
OPERATIONS/DISSOLUTION OF THE FRF
The FRF will continue operations until all of its assets are sold or otherwise liquidated and all of its liabilities are satisfied. Any funds remaining in the FRF-FSLIC will be paid to the U.S. Treasury. Any remaining funds of the FRF-RTC will be distributed to the REFCORP to pay the interest on the REFCORP bonds. In addition, the FRF-FSLIC has available until expended $602 million in appropriations to facilitate, if required, efforts to wind up the resolution activity of the FRF-FSLIC.
The FDIC has extensively reviewed and cataloged the FRF's remaining assets and liabilities. Some of the unresolved issues are:
- criminal restitution orders (generally have from 1 to 21 years remaining to enforce);
- collections of judgments obtained against officers and directors and other professionals responsible for causing or contributing to thrift losses (generally have up to 10 years remaining to enforce, unless the judgments are renewed or are covered by the Federal Debt Collections Procedures Act, which will result in significantly longer periods for collection of some judgments);
- liquidation/disposition of residual assets purchased by the FRF from terminated receiverships;
- two remaining issues related to assistance agreements entered into by the former FSLIC (FRF could continue to receive or refund overpayments of tax benefits sharing in future years);
- goodwill litigation (reimbursement of a potential tax liability; see Note 3); and
- Affordable Housing Disposition Program monitoring (the last agreement expires no later than 2045; see Note 4).
The FRF could realize recoveries from tax benefits sharing, criminal restitution orders, and professional liability claims. However, any potential recoveries are not reflected in the FRF’s financial statements, given the significant uncertainties surrounding the ultimate outcome.
On April 1, 2014, the FDIC concluded its role as receiver of FRF receiverships when the last active receivership was terminated. In total, 850 receiverships were liquidated by the FRF and the RTC. To facilitate receivership terminations, the FRF, in its corporate capacity, acquired the remaining receivership assets. These assets are included in the “Other assets, net” line item on the Balance Sheet.
During the years of receivership activity, the assets held by receivership entities, and the claims against them, were accounted for separately from the FRF’s assets and liabilities to ensure that receivership proceeds were distributed in accordance with applicable laws and regulations. Also, the income and expenses attributable to receiverships were accounted for as transactions of those receiverships. The FDIC billed receiverships for services provided on their behalf.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The financial statements include the financial position, results of operations, and cash flows of the FRF and are presented in accordance with U.S. generally accepted accounting principles (GAAP). During the years of receivership activity, these statements did not include reporting for assets and liabilities of receivership entities because these entities were legally separate and distinct, and the FRF did not have any ownership or beneficial interest in them.
The FRF is a limited-life entity, however, it does not meet the requirements for presenting financial statements using the liquidation basis of accounting. According to Accounting Standards Codification Topic 205, Presentation of Financial Statements, a limited-life entity should apply the liquidation basis of accounting only if a change in the entity’s governing plan has occurred since its inception. By statute, the FRF is a limited-life entity whose dissolution will occur upon the satisfaction of all liabilities and the disposition of all assets. No changes to this statutory plan have occurred since inception of the FRF.
USE OF ESTIMATES
The preparation of the financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, revenue and expenses, and disclosure of contingent liabilities. Actual results could differ from these estimates. Where it is reasonably possible that changes in estimates will cause a material change in the financial statements in the near term, the nature and extent of such potential changes in estimates have been disclosed. The valuation estimate for other assets is considered significant.
Cash equivalents are short-term, highly liquid investments consisting primarily of U.S. Treasury Overnight Certificates.
The nature of related parties and a description of related party transactions are discussed in Note 1 and disclosed throughout the financial statements and footnotes.
DISCLOSURE ABOUT RECENT RELEVANT ACCOUNTING PRONOUNCEMENTS
In June 2016, the Financial Accounting Standards Board issued Accounting Standards Update (ASU) 2016-13, Financial Instruments – Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments. The ASU will replace the incurred loss impairment model with a new expected credit loss model for financial assets measured at amortized cost and for off-balance-sheet credit exposures. The ASU is effective for the FRF on January 1, 2021. The FDIC is assessing the effect the ASU will have on the FRF’s financial position and results of operations.
Other recent accounting pronouncements have been deemed not applicable or material to the financial statements as presented.
Reclassifications have been made in 2015 financial statements to conform to the presentation used in 2016.
3. GOODWILL LITIGATION
In United States v. Winstar Corp., 518 U.S. 839 (1996), the Supreme Court held that when it became impossible following the enactment of FIRREA in 1989 for the federal government to perform certain agreements to count goodwill toward regulatory capital, the plaintiffs were entitled to recover damages from the United States. The contingent liability associated with the nonperformance of these agreements was transferred to the FRF on August 9, 1989, upon the dissolution of the FSLIC.
The FRF can draw from an appropriation provided by Section 110 of the Department of Justice Appropriations Act, 2000 (Public Law 106-113, Appendix A, Title I, 113 Stat. 1501A-3, 1501A-20), such sums as may be necessary for the payment of judgments and compromise settlements in the goodwill litigation. This appropriation is to remain available until expended. Because an appropriation is available to pay such judgments and settlements, any estimated liability for goodwill litigation will have a corresponding receivable from the U.S. Treasury and therefore have no net impact on the financial condition of the FRF.
In 2015, the FRF paid $513.6 million to resolve the remaining active goodwill case using appropriations from the U.S. Treasury. For another case fully adjudicated in 2012, an estimated loss of $8 million for the court-ordered reimbursement of potential tax liabilities to the plaintiff is reasonably possible.
The FRF-FSLIC paid goodwill litigation expenses incurred by the Department of Justice (DOJ), the entity that defended these lawsuits against the United States, based on a Memorandum of Understanding (MOU) dated October 2, 1998, between the FDIC and the DOJ. These expenses were paid in advance by the FRF-FSLIC and any unused funds were carried over by the DOJ and applied toward the next fiscal year charges. In September 2016, the DOJ returned $2 million of unused funds to the FRF-FSLIC and retained $250 thousand to cover future administrative expenses. The returned funds were recognized in the “Other revenue” line item on the Statement of Income and Accumulated Deficit.
TAX LIABILITY INDEMNIFICATION
Similar to the goodwill cases discussed in Note 3, there were additional cases alleging that the government breached agreements regarding tax benefits associated with certain FSLIC-assisted acquisitions. All eight of those cases have been settled. A case settled in 2006 obligated the FRF-FSLIC as a guarantor for potential tax liabilities. The Internal Revenue Service (IRS) audited the relevant tax return and during the audit did not raise concerns of taxability for the settlement receipts covered under the indemnification agreement. The normal audit period for the IRS to propose adjustments expired in 2016 and the FDIC has no expectation of any further audit or related exposure concerning this matter.
FANNIE MAE GUARANTEE
On May 21, 2012, the FDIC, in its capacity as administrator of the FRF, entered into an agreement with Fannie Mae for the release of $13 million of credit enhancement reserves to the FRF in exchange for indemnifying Fannie Mae from all future losses incurred on 76 multi-family mortgage loans. The former RTC supplied Fannie Mae with the credit enhancement reserves in the form of cash collateral to cover future losses on these mortgage loans through 2020. Based on the most current data available, as of September 30, 2016, the maximum exposure on this indemnification is the current unpaid principal balance of the remaining 33 multi- family loans totaling $2 million. Based on a contingent liability assessment of this portfolio as of September 30, 2016, the majority of the loans are at least 86 percent amortized, and all are scheduled to mature within one to four years. Since all of the loans are performing and no losses have occurred since 2001, future payments on this indemnification are not expected. No contingent liability for this indemnification has been recorded as of December 31, 2016 and 2015.
AFFORDABLE HOUSING DISPOSITION PROGRAM
Required by FIRREA under section 501, the Affordable Housing Disposition Program (AHDP) was established in 1989 to ensure the preservation of affordable housing for low-income households. The FDIC, in its capacity as administrator of the FRF-RTC, assumed responsibility for monitoring property owner compliance with land use restriction agreements (LURAs). To enforce the property owners’ LURA obligation, the RTC, prior to its dissolution, entered into Memoranda of Understanding with 28 monitoring agencies to oversee these LURAs. The FDIC, through the FRF, has agreed to indemnify the monitoring agencies for all losses related to LURA legal enforcement proceedings.
Since 2006, the FDIC entered into two litigations against property owners and paid $23 thousand in legal expenses, which was fully reimbursed due to successful litigation. The maximum potential exposure to the FRF cannot be estimated as it is contingent upon future legal proceedings. However, loss mitigation factors include: (1) the indemnification may become void if the FDIC is not immediately informed upon receiving notice of any legal proceedings and (2) the FDIC is entitled to reimbursement of any legal expenses incurred for successful litigation against a property owner. AHDP guarantees will continue until the termination of the last LURA, or 2045 (whichever occurs first). As of December 31, 2016 and 2015, no contingent liability for this indemnification has been recorded.
5. RESOLUTION EQUITY
As stated in the Overview section of Note 1, the FRF is composed of two distinct pools: the FRF-FSLIC and the FRF- RTC. The FRF-FSLIC consists of the assets and liabilities of the former FSLIC. The FRF-RTC consists of the assets and liabilities of the former RTC. Pursuant to legal restrictions, the two pools are maintained separately and the assets of one pool are not available to satisfy obligations of the other.
Contributed capital, accumulated deficit, and resolution equity consisted of the following components by each pool (in thousands).
|Contributed capital - beginning||$43,864,980||$81,624,337||$125,489,317|
|Contributed capital - ending||43,864,980||81,624,337||125,489,317|
|Total Resolution Equity||$835,780||$42,759||$878,539|
|Contributed capital - beginning||$43,707,819||$81,624,337||$125,332,156|
|Add: U.S. Treasury payment in excess of prior year receivable||157,161||$0||$157,161|
|Contributed capital - ending||$43,864,980||$81,624,337||$125,489,317|
|Total Resolution Equity||$828,296||$42,877||$871,173|
The FRF-FSLIC and the former RTC received $43.5 billion and $60.1 billion from the U.S. Treasury, respectively, to fund losses from thrift resolutions prior to July 1, 1995. Additionally, the FRF-FSLIC issued $670 million in capital certificates to the Financing Corporation (a mixed-ownership government corporation established to function solely as a financing vehicle for the FSLIC) and the RTC issued $31.3 billion of these instruments to the REFCORP. FIRREA prohibited the payment of dividends on any of these capital certificates.
The FRF-FSLIC received $513.6 million in U.S. Treasury payments for goodwill litigation in 2015, of which $356.4 million was accrued as a receivable at year-end 2014. The $157.2 million difference increased contributed capital in 2015. Through December 31, 2016, the FRF received a total of $2.3 billion in goodwill appropriations, the effect of which increased contributed capital.
Through December 31, 2016, the FRF-RTC had returned $4.6 billion to the U.S. Treasury and made payments of $5.1 billion to the REFCORP. The most recent payment to the REFCORP was in July of 2013 for $125 million. In addition, the FDIC returned $2.6 billion to the U.S. Treasury on behalf of the FRF-FSLIC in 2013. These actions reduced contributed capital.
The accumulated deficit represents the cumulative excess of expenses and losses over revenue for activity related to the FRF-FSLIC and the FRF-RTC. Approximately $29.8 billion and $87.9 billion were brought forward from the former FSLIC and the former RTC on August 9, 1989, and January 1, 1996, respectively. Since the dissolution dates, the FRF-FSLIC accumulated deficit increased by $13.2 billion, whereas the FRF-RTC accumulated deficit decreased by $6.3 billion.
6. Losses Related to Thrift Resolutions
Losses related to thrift resolutions represent changes in the estimated losses on assets acquired from terminated receiverships, as well as expenses for the disposition and administration of these assets.
These losses were a negative $993 thousand for 2016 compared to negative $153 thousand for 2015. The 2016 balance primarily resulted from a $1 million reduction in the estimated losses due to better-than-anticipated recoveries upon disposition of an asset during 2016.
7. DISCLOSURES ABOUT THE FAIR VALUE OF FINANCIAL INSTRUMENTS
At December 31, 2016 and 2015, the FRF’s financial assets measured at fair value on a recurring basis are cash equivalents of $831 million and $828 million, respectively. Cash equivalents are Special U.S. Treasury Certificates with overnight maturities valued at prevailing interest rates established by the Bureau of the Fiscal Service. The valuation is considered a Level 1 measurement in the fair value hierarchy, representing quoted prices in active markets for identical assets.
Accounts payable and other liabilities are not recognized at fair value but are recorded at amounts that approximate fair value due to their short maturities and/or comparability with interest rates.
Assets purchased by the FRF from terminated receiverships (see Note 1) and included in the “Other assets, net” line item on the Balance Sheet are primarily valued using projected cash flow analyses; however, these valuations do not represent an estimate of fair value. These assets (ranging in age between 22 to 27 years) could not be liquidated during the life of the receiverships due to restrictive clauses and other impediments. Because these impediments remain, there is no market for these assets. Consequently, it is not practicable to provide an estimate of fair value.
8. INFORMATION RELATING TO THE STATEMENT OF CASH FLOWS
The following table presents a reconciliation of net income (loss) to net cash from operating activities (in thousands).
|Net Income (Loss):||$7,366||$(157,465)|
|Adjustments to reconcile net income (loss) to net cash provided (used) by operating activities:|
|Losses related to thrift resolutions (only includes provision for losses)||0||(260)|
|Change in Assets and Liabilities:|
|(Increase) Decrease in other assets||(3,631)||404|
|Decrease (Increase) in accounts payable and other liabilities||(598)||254|
|(Decrease) in contingent liabilities for goodwill litigation||0||(356,455)|
|Net Cash Provided (Used) by Operating Activities||$3,137||$(513,522)|
9. SUBSEQUENT EVENTS
Subsequent events have been evaluated through February 8, 2017, the date the financial statements are available to be issued, and management determined that there are no items to disclose.