[Federal Register Volume 77, Number 105 (Thursday, May 31, 2012)]
[Rules and Regulations]
[Pages 31993-32004]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13214]
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NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Part 741
RIN 3133-AE01
Loan Workouts and Nonaccrual Policy, and Regulatory Reporting of
Troubled Debt Restructured Loans
AGENCY: National Credit Union Administration (NCUA).
ACTION: Final rule; limited extension of compliance date for certain
requirements.
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SUMMARY: NCUA is amending its regulations to require federally insured
credit unions (FICUs) to maintain written policies that address the
management of loan workout arrangements and nonaccrual policies for
loans, consistent with industry practice or Federal Financial
Institutions Examination Council (FFIEC) requirements. The final rule
includes guidelines, set forth as an interpretive ruling and policy
statement (IRPS) and incorporated as an appendix to the rule, that will
assist FICUs in complying with the rule, including the regulatory
reporting of troubled debt restructured loans (TDR loans or TDRs) in
FICU Call Reports.
DATES: The effective date for this rule is July 2, 2012. The compliance
date is extended to October 1, 2012 for the rule's requirements to
adopt written policies addressing loan workouts and nonaccrual
practices and to December 31, 2012 to collect nonaccrual status data.
FOR FURTHER INFORMATION CONTACT: Director of Supervision Matthew J.
Biliouris and Chief Accountant Karen Kelbly, Office of Examination and
Insurance at the above address or telephone: (703) 518-6360.
SUPPLEMENTARY INFORMATION:
I. Background
II. Summary of Comments on the Proposed Rulemaking
III. Final Rule and IRPS
IV. Regulatory Procedures
I. Background
a. Why is NCUA issuing this rule?
In order to better serve members experiencing financial
difficulties over the last several years and improve collectability,
FICUs worked with members and offered sensible workout loans, including
programs offered through the Obama Administration's ``Making Home
Affordable Program''.\1\ NCUA's existing reporting requirements creates
practical challenges for the industry as the volume of workouts
increased. To follow the NCUA 5300 Call Report (Call Report)
instructions for reporting past due status on TDRs, many FICUs maintain
separate, manual delinquency computations. To respond to feedback from
the industry and in the spirit of reduced regulatory burden, the NCUA
Board (Board) issued a Notice of Proposed Rulemaking (NPRM) in
February. 77 FR 4927 (Feb. 1, 2012).
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\1\ The Making Home Affordable Program (MHA) was developed to
help homeowners avoid foreclosure, stabilize the country's housing
market, and improve the nation's economy. MHA includes such programs
as the ``Home Affordable Refinance Program'' (HARP) and ``Home
Affordable Modification Program'' (HAMP). Programs such as these
further enable FICUs to provide workout loans to their members. For
additional information regarding programs available through MHA see
http://www.makinghomeaffordable.gov/pages/default.aspx.
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In the NPRM, the Board acknowledged the need to effectively balance
appropriate loan workout programs with safety and soundness
considerations. Such considerations can include the inability to
identify deterioration in the quality of the loan portfolio and delayed
loss recognition, in light of the high degree of relapse into past due
status. The Board issued the NPRM with the goal of granting certain
regulatory relief, instituting some countervailing controls, and
clarifying regulatory expectations.
In the NPRM, the Board proposed four regulatory changes through an
amendment to Sec. 741.3 and the addition of proposed Appendix C to
part 741. First, the NPRM proposed a requirement that FICUs have
written policies addressing loan workouts and nonaccrual practices
under Sec. 741.3. Second, the NPRM proposed to standardize an
industry-wide practice by requiring that FICUs cease to accrue interest
on all loans at 90 days or more past due, subject to a few exceptions.
Third, the NPRM proposed that FICUs maintain member business workout
loans in a nonaccrual status until the FICU receives 6 consecutive
payments under the modified terms. Finally, the NPRM proposed that
FICUs calculate and report TDR loan delinquency based on restructured
contract terms rather than the original loan terms. To that end, the
Board noted that NCUA would modify the Call Report to reduce data
collection to TDRs as defined by GAAP.
b. When will FICUs have to comply with the final rule?
The Board proposed that the final rule would go into effect 120
days after it was published in the Federal Register and require that
FICUs adopt the required written lending policies by such date. The
NPRM also stated that NCUA would closely time its adjustments to the
Call Report requirements for reporting TDRs with the rule and stated a
goal for the Call Report requirements to go into effect no later than
the quarter ending December 31, 2012. The NPRM specifically sought
comments on the proposed implementation dates.
In response to the NPRM, the Board received many varied comments on
how it should approach implementation of the rule, appendix and NCUA's
modification of the Call Report. One trade group urged NCUA to move
forward with Call Report changes as soon as it adopted the rule, while
a FICU supported the Call Report reporting requirements to become
effective no later than December 31, 2012. One FICU commenter stated
that the quick adoption of the proposed changes would have a profound
effect on FICU personnel hours needed to perform the TDR reporting
requirement and, therefore, requested implementation of the final rule
by the end of the 2nd quarter of 2012. Likewise, another FICU stated
that the December 31, 2012 report date would not give FICUs enough time
to purchase software and perform a six-month due diligence review. The
FICU noted that, while a new system can effectively capture new loan
history, it will have serious challenges with systematically capturing
existing loan history retrospectively for data previously tracked
manually. The commenter
[[Page 31994]]
requested a two-year timeframe to allow appropriate time for due
diligence and full compliance.
One FICU and one league expressed concern that the proposed 120
days compliance timeframe would not be enough time if a FICU has to
modify systems. The FICU stated there may be disparities in how various
computer systems handle the 90-day nonaccrual policy, as well as the
handling of accrued interest, reprogramming, and testing. The commenter
suggested that NCUA set a firm, but reasonable, date for compliance.
Several commenters raised concerns about the ability of small credit
unions to revise or implement changes to their lending policies and
systems. Four leagues requested that small credit unions be given extra
time or transition period beyond the proposed 120 days. One league
suggested that NCUA permit compliance within 120 days, but not require
compliance for at least 180 days to accommodate small credit unions.
Similarly, one trade group, on behalf of FICUs that are able to comply
with the changes, urged NCUA to adopt the rule and make it effective as
soon as possible. Yet the trade group also asked for additional time
for smaller institutions to comply with the final rule. One FICU asked
NCUA to adopt the rule as soon as possible with a 180-day transition
period for implementation. One league requested a twelve-month
implementation period.
After reviewing the various approaches suggested by the commenters,
the Board has decided to make one provision of the final rule effective
within 30 days of publication in the Federal Register, while delaying
the compliance date of the other provisions. Under the final rule,
FICUs will be required to calculate the past due status of workout
loans consistent with loan contract terms, including amendments made
through formal restructures as soon as the rule goes into effect on
July 2, 2012. Data collections on the Call Report for the quarter
ending June 30, 2012 will reflect revised TDR past due reporting. NCUA
will begin collecting IRPS compliant data in the Call Report filing for
quarter ending December 31, 2012. In order for FICUs to file the data
related to loans placed in nonaccrual status in accordance with the
final rule and IRPS for quarter ending December 31, 2012, FICUs must
have their written nonaccrual and loan workout policies in place at the
beginning of the quarter. The compliance date for adopting written loan
policies and collecting nonaccrual information as discussed in Section
III is October 1, 2012. FICUs, however, may adopt their policies and
adjust their financial reporting systems as soon as is practicable
after the rule's effective date, rather than waiting for the mandatory
compliance date if they so choose.
II. Summary of Comments on the Proposed Rulemaking
The NPRM's comment period ended on March 2, 2012. NCUA received
forty-five comment letters on the NPRM: thirty from FICUs, two from
trade associations representing credit unions, ten from state credit
union leagues, one from an accounting firm, one from an organization
representing state credit union regulators, and one from a non-profit
policy organization. Of the forty-five comments received, thirteen
commenters supported the rulemaking generally, while thirty-one
commenters offered some support for the rulemaking but objected to
certain provisions or requested substantive revisions. One commenter
questioned the purpose of the proposed rule. For the reasons discussed
below, the Board adopts the amendments almost exactly as it proposed
but, as requested by many commenters, provides some clarifications and
excludes the proposed requirement that FICUs adopt aggregate limits in
their loan workout and nonaccrual policies tied to net worth.
a. Written Loan Workout Policy and Monitoring Requirements
Thirteen FICUs, three leagues and the accounting firm supported the
proposed rule's requirement that FICUs have a written loan workout
policy combined with associated monitoring and controls. Most of these
commenters stressed, however, that regulators must not review these
policies from a standardized approach under the supervisory process.
They urged regulators to afford a FICU an appropriate degree of
flexibility based on the individuality of that FICU and the composition
of its field of membership.
They argued that each loan modification should stand on its own
merits, and that a FICU should be able to modify a loan if it is in the
long term best interests of the member and the FICU without a ``one
size fits all'' approach in the guidelines. One trade group and one
league stated that, while FICUs should maintain loan workout policies,
examiners should not expect a separate policy on TDRs. These commenters
also stated that examiners should recognize that loan workout policies
and practices must be commensurate with a FICU's size and complexity.
One league requested that NCUA provide, at a minimum, an outline with
suggestions of specific areas that examiners will expect to see
addressed in policies. It also suggested that any requirements for a
policy allow room for an individual's particular circumstance. In
contrast, one industry trade group opposed a requirement that FICUs
adopt loan workout or nonaccrual policies and advocated that NCUA issue
guidance rather than a rule. It noted that many FICUs already engage in
such a practice and already have invested in implementing software.
The Board continues to believe it is necessary to require a written
loan workout policy. Because NCUA is relaxing its previous directives
on past due calculations for TDRs and modifying the related Call Report
data collections to reduce regulatory burden, the Board believes
countervailing controls are necessary. It finds the final rule's
requirement that FICUs adopt written loan workout and nonaccrual
policies adequately addresses NCUA's supervisory interests.
Furthermore, the Board notes the proposed IRPS clearly stated that a
FICU's loan workout policy and practices should be ``commensurate with
each credit union's size and complexity,'' in line with its broader
risk mitigation strategies. 77 FR at 4934. By taking the approach in
the NPRM that FICU management must design policies appropriate for
their institutions, rather than setting forth ``bright line''
regulatory requirements or otherwise placing defined parameters on FICU
policies, the Board acknowledges it is not appropriate to take a one-
size fits all approach. As such, the final rule and IRPS continue to
give a FICU's management the ability to establish institution-
appropriate policies. In addition, the Board commits to providing
NCUA's examiners with appropriate guidance for evaluating whether loan
modifications made under a FICU's policy improves collectability.
Most commenters objected to the requirement that loan workout
policies establish particular limits or benchmarks. Four commenters
stated that the imposition of aggregate limits is unnecessary and could
result in greater risk to FICUs by preventing them from making sound
decisions that could result in future collectability. One commenter
stated that setting aggregate limits could create the unintended
consequence of a FICU treating members differently if the FICU
approaches any such regulatory limit. Other commenters echoed similar
concerns, stating that loan modifications should always be considered
when they are in the best interests of the lender and the borrower, but
that FICUs need flexibility in the current economic
[[Page 31995]]
cycle. Failure to approve sound modifications simply because of a
policy limit could increase risk of default and expose a FICU to
reputation risk. Fourteen FICU commenters and three leagues
specifically objected to tying loan modification program limits to a
percentage of a FICU's net worth. One commenter stated that, while a
limit might be appropriate for some FICUs, that same limit might not be
the appropriate measure for others. Another FICU noted that its net
worth declined during the recent severe economic conditions in its
state. The FICU argued that, had the proposed limitation been in place,
it would have reduced the FICU's ability to help members at a time when
assistance was most needed. Another FICU noted that modifications are a
risk mitigation strategy for loans already on a FICU's balance sheet,
not a business strategy to incur additional risk.
The Board carefully considered the substantial comments on the
NPRM's requirement that a FICU's loan workout policy include aggregate
program limits set to a percentage of its net worth and agrees with the
commenters that the proposed requirement could prevent a FICU from
appropriately mitigating risk and assisting its members. 77 FR at 4930,
4934. The final IRPS does not include a requirement to place aggregate
limits on a loan workout program as the Board proposed in the NPRM. As
discussed in greater detail in Section III, NCUA will focus on a FICU's
restructuring practices and whether its efforts have demonstrated an
improvement in collectability of TDRs.
Two commenters suggested that, instead of a specified aggregate
limit, the rule require FICU management to provide enhanced reporting
on TDR activity to the FICU's board of directors. Another commenter
suggested mandatory reporting to the FICU board on a regular basis. The
Board agrees with these suggestions and has incorporated enhanced
reporting requirements in the final rule. One commenter suggested
continued reporting in Call Reports, including the number of times a
loan has been modified in a 12-month period. The Board will consider
this suggestion as it moves forward with its modifications to the Call
Report. One commenter stated that ensuring proper documentation
supporting a TDR and the borrower's ability to comply with the new
terms best addresses concerns that a FICU is masking true performance
and the past due status of its portfolio. The Board agrees with the
commenter. As discussed in Section III, the final IRPS addresses the
need for proper documentation and effective restructuring practices,
preventing delayed loss recognition.
One FICU specifically commented on the proposal's requirement to
limit the number of times a loan workout may be provided to a member
over a period of time. The FICU stated that, while such a limit may
eliminate the issue of masking problem loans, it also creates obstacles
when there are legitimate reasons for multiple workouts. For example,
as state and local governments and school districts have restricted
spending, members endured layoffs and rounds of wage and hours cuts. As
they have had to adjust their own budgets, many have asked their lender
FICUs to revise terms of their workout loans. If a FICU's policy limits
the number of times a workout loan can be modified or changed, these
members will be adversely affected for no reason other than policy.
Therefore, the commenter recommended that the rule be changed to allow
workout loans to be modified any time a FICU can legitimately identify
a reasonable change in the member's economic circumstances (i.e.,
income and other documentation should be required prior to making a
change to a workout loan). The proposed IRPS in the NPRM includes a
requirement that FICUs define eligibility requirements, including
limits on the number of times an individual loan may be restructured,
but these decisions as to limits are left to the discretion of the FICU
when establishing its written policy. ``Loan workout arrangements
should consider and balance the best interests of both the borrower and
the credit union.'' 77 FR at 4934. The Board expects a FICU to evaluate
the changed circumstances of an individual borrower with the need to
improve collectability for the profitable operation of the institution.
It is the FICU's responsibility to craft loan workout policies that
strike that balance. NCUA will then measure the success of the policy
based on the FICU's ability to collect TDRs. The final IRPS, therefore,
retains the requirement to establish eligibility requirements as
proposed in the NPRM.
b. Loan Nonaccrual Policy for All Loans and Restoration to Accrual for
Loans Other Than Member Business Loan (MBL) Workout Loans
Four FICUs and two leagues supported the proposed requirement that
FICUs maintain nonaccrual policies that address the discontinuance of
interest accrual for loans past due by 90 days or more and the
requirements for returning such loans, including MBLs, to accrual
status. The commenters noted that the proposed nonaccrual policy has
long been the practice of FICUs and is supported by current institution
interest management systems, so it would not present additional
unwarranted work for FICUs. In addition, an accounting firm and two
FICUs found the proposal consistent with industry practice and FFIEC
requirements. They supported the proposed rule's effort to formalize
the practice of placing loans on nonaccrual status when they are 90
days past due. One league argued that compliance with the proposal
would require FICUs to change loan tracking systems, thereby incurring
significant programming costs. The final rule and IRPS retain the
requirement for a written policy addressing nonaccrual practices as
proposed in the NPRM, with a few clarifications as discussed below.
One FICU objected to a blanket requirement that interest may not
accrue on loans that are 90 days or more past due. The commenter stated
that if a loan is performing at a level agreed to by the FICU and
debtor, and it can be reasonably demonstrated that full recovery of the
balance owed is likely, continuing to accrue interest due is
appropriate and should be allowed. The commenter incorrectly
characterized the requirement as a blanket prohibition. The proposed
IRPS states that a FICU may not accrue interest on a loan in default
for a period of 90 days or more ``unless the loan is both well secured
and in the process of collection.'' Id. The final IRPS retains this
provision.
One FICU expressed concern that the proposal places an undue burden
on individual small accounts and requested that the final rule exclude
accounts under $25,000 from the nonaccrual policy. The commenter also
suggested that NCUA consider using a more individualized index to
determine a nonaccrual amount based on the total TDR classified loan
balance. The commenter contended this approach would take far less time
to calculate, and be more accurate, than under the current process. The
Board does not agree with the commenter's rationale. The Board believes
that a standard policy applicable to all loans in nonaccrual status,
other than typically riskier and higher-dollar business loans, ensures
consistency as the policy is employed by FICUs and reviewed by
examiners.
One industry trade group did not support a requirement that FICUs
must adopt nonaccrual procedures because they are not required by GAAP
or the Federal Credit Union Act. This commenter agreed, however, that
the proposed IRPS' restoration to accrual
[[Page 31996]]
status for loans, excluding MBL workouts, is consistent with GAAP. Two
FICUs and two leagues also questioned the necessity of a formal
regulation for this requirement because, for years, it has been the
industry standard to terminate the accrual of interest when a loan is
90 days delinquent. The commenters argued that the proposal is
redundant and it is therefore unnecessary to include this standard
practice in a regulation. They contend that NCUA could better handle
exceptions to this nonaccrual approach through the examination and
supervision process. While recognizing the practice has been
longstanding in the industry, the Board believes that memorializing the
practice as a rule, ensures ongoing, consistent and appropriate income
recognition for loans that are past due by 90 days or more. In
addition, the rule enables the agency to enforce noncompliance if
necessary.
One FICU and one league stated there is great disparity in FICUs'
computer systems in dealing with the 90-day policy, specifically that
some FICUs time the policy to 90 days while others time the policy to
91 or more days. The FICU commenter noted a difference in practice as
to whether accrued interest is reversed when it goes into nonaccrual
status or if there actually is no additional interest accrued to the
general ledger prospectively. The final IRPS clarifies that the
nonaccrual policy applies when the loan is 90 days or more past due. In
response to the FICU commenter, the final IRPS also clarifies that when
accrued interest is reversed, the reversed interest cannot be
subsequently restored but can only be recognized as income if it is
collected in cash or cash equivalents, and that there is no additional
accrual until restoral to accrual conditions are met. This approach is
consistent both with GAAP principles governing interest recognition on
loans and longstanding banking industry practice.
One league requested that the final rule clarify that placing a
loan on nonaccrual status does not change the loan agreement or the
obligations between the borrower and the FICU, unless and until the
parties reach express agreement on modifying the original loan terms.
The commenter expressed concern that the final rule will be perceived
as forgiveness of interest or principal or any type of right to a
modification conferred to the borrower. To address this concern, the
final IRPS includes a footnote to make clear that the accounting
procedure to place a loan on nonaccrual status has no impact on the
borrower's contractual obligation to the FICU.
c. Restoration of Member Business Workout Loans to Accrual
Thirteen FICUs and eight leagues stated they saw no justification
for treating MBLs differently than consumer/residential loans. They
objected to the proposal's continuation of the current requirement that
MBLs remain in nonaccrual status until a FICU receives six consecutive
payments under modified loan terms. One commenter questioned the
application of the proposal to all MBLs given that not all MBLs are
commercial real estate loans. Two FICUs stated that this provision
contradicts GAAP. Two commenters misunderstood the Board's remedy to
past due reporting of all loans, including MBLs, and argued that the
proposal's treatment of MBLs will artificially inflate delinquency. The
differentiation the rule makes between MBLs and other loans regards
provisions for restoration to accrual status, not delinquency
reporting. Past due reporting will now be consistent with loan contract
terms for all loans including MBLs. One commenter stated that, in
general, MBL portfolios are comprised of a pool of individually unique
loans with different collateral terms and repayment capabilities based
on the financial situation and creditworthiness of the borrower/
guarantor. As such, the commenter felt it was inappropriate to
establish a six-month standard that would uniformly apply to a pool of
individually unique loans. The commenter argued that the determination
to place an MBL back into accrual status should be based on the
individual financial circumstances of the borrower rather than an
arbitrary period of time. One industry trade group also strongly urged
NCUA to provide consistent relief for consumer loan and MBL workouts.
It stated that the proposal perpetuates an unnecessary obstacle for
FICUs to accommodate business members. Another trade group opposed the
proposed treatment of MBLs because it is not required by the Federal
Credit Union Act or GAAP. One FICU, six leagues, and one trade group
stated that the tracking of MBLs as proposed would continue the burden
of manually tracking these loans, thus imposing an additional barrier
to making MBLs.
The Board considered the commenters' concerns but retained the
proposed provisions for the restoration of MBL workout loans to accrual
status in the final rule. In drafting the NPRM, NCUA weighed requiring
identical treatment of both consumer and MBL workouts, i.e., the FICU
would need to demonstrate a period of member repayment performance of
six consecutive payments before the return to accrual status. In the
interest of providing FICUs reduced burden without undue increased
supervisory risk, the Board limited the more stringent requirement to
only MBL workout loans. The Board's decision to retain the NPRM's
proposed requirements for restoring MBL workout loans to accrual status
is threefold: (1) The principle forming the basis for the provision is
found in GAAP; (2) NCUA has previously joined the other federal
regulators in advancing this provision in multiple interagency policy
issuances, and (3) the requirement is a longstanding accepted banking
practice.
One commenter encouraged NCUA to specifically define ``consecutive
payment'' or give FICUs the authority to define the term in loan
workout policies. Similarly, another FICU suggested that a payment made
within a 30-day window of the due date (i.e., no late payments) be
considered consecutive. This commenter also asked for clarification on
what constitutes a payment for this purpose (e.g., principal and
interest, principal only, or interest only) to ensure consistent
reporting among FICUs. To clarify, a FICU is required to use the Cash
Basis method of income recognition in GAAP until the borrower makes six
consecutive timely payments of principal and interest consistent with
the loan contract terms. The Board has clarified in the final IRPS that
repayment performance involves timely payments of principal and
interest under the restructured loan's terms.
One FICU, while agreeing with the proposal's requirement for
maintaining certain MBLs in nonaccrual status for safety and soundness
reasons, objected to extending the policy to multi-family residential
mortgages. The commenter suggested that loans secured by 1-4 family
residential properties, which fall into NCUA's MBL definition for other
purposes, follow the proposal's non-MBL requirements for restoration to
accrual status.
One FICU offered a slight modification to the proposed rule by
expanding it to ``greater than 90 days and/or 3 months past due.'' It
argued that many FICUs currently label internal reports as ``90 day,''
but upon a closer analysis of the actual technical format of FICUs'
core processors, some FICUs would change the label to ``3 months.'' The
final rule and IRPS maintain the uniform standard of 90 days or more.
One FICU requested clarification that MBL workout loans on
nonaccrual
[[Page 31997]]
status would not be considered delinquent for reporting purposes if the
borrowers have made payments conforming to a loan workout but have not
completed the 6-month period to resume accruals. The Board notes that
past due status and nonaccrual are separate elements. The final IRPS,
as proposed, is clear that past due status is remedied at the time of
restructure regardless of the nonaccrual requirement.
One FICU requested that NCUA clarify its ``broad'' statement in the
guidance that ``in no event should the credit union authorize
additional advances to finance unpaid interest and fees,'' or eliminate
the language altogether. The commenter stated that a FICU could
interpret this language to suggest that the payment of a third-party
fee could not be added to the collectible loan balance when attempting
to recover losses. The commenter stated that its ability to capitalize
interest at the point of restructure is an important tool in providing
solutions to troubled borrowers. By mandating the acceptance of greater
losses, NCUA would be inadvertently increasing risk in the area of
safety and soundness, and possibly eliminating a viable member solution
by ultimately creating too great a loss. The Board agrees such third-
party fees should not hinder sound restructure decisions. Accordingly,
the final IRPS includes new language to clarify that, while a FICU
cannot make additional advances to the borrower to finance unpaid
interest and credit union fees, it may make advances to cover third-
party fees exclusive of credit union commissions, such as forced place
insurance or property taxes.
d. Regulatory Reporting of Workout Loans, Including TDRs
Thirteen FICUs, an accounting firm, a non-profit consumer advocate,
the state supervisory organization, eight leagues, and two industry
trade groups supported the elimination of the current requirement to
track and report TDRs as delinquent until six consecutive payments.
Several commenters noted the change is a needed improvement, as the
current reporting requirement has been problematic for many FICUs and
an obstacle to helping members. The consumer advocate stated that by
moving to more commonsense reporting, the proposal eliminates a
disincentive for a FICU to consider TDRs, which in turn will result in
fewer foreclosures. One FICU commenter also stated that the current
requirements have been quite cumbersome and contrary in purpose to the
FICU's efforts to keep members in their homes and avoid unnecessary
foreclosure actions.
Several commenters believed that NCUA should enable FICUs to
perform appropriate loan restructurings without a reporting treatment
that has a chilling effect on this essential business decision during a
period of economic downturn, particularly in hard hit states. Two
commenters stated that FICUs overstate their true delinquencies under
the current reporting process. One commenter stated that if
institutions follow sound workout loan policies in which the borrower
has a better capability and willingness to repay, then the TDR should
be treated as performing under the new terms of the loan agreement. To
pretend a loan is delinquent for six months based on the original past
due date distorts the true delinquency of loans in the portfolio. One
commenter noted that the overstatement of delinquencies causes
unnecessary concern with counterparties and creates an ``apples to
oranges'' comparison with other financial institutions because banks do
not report TDRs as delinquent.
In support of the proposal, one FICU and one league noted that
FICUs have developed elaborate tracking systems. They stated, however,
that dual reporting systems have resulted in different financial
reporting for internal and audited financial statements from that used
in Call Reports. These differences have resulted in confusion. One of
these commenters suggested that the new guidance caution FICUs that,
when modifying loans and removing them from delinquency status,
documentation of the borrower's ability to pay under the modified terms
should include a thorough analysis of recent past payment performance
with strong consideration of the immediately preceding three months.
This commenter suggested that the guidance should limit to two the
number of times during a 12-month period that a loan may be formally
modified with a reset of the delinquency counters. This limitation
would allow for tracking (without dual reporting) and prevent FICUs
from masking true delinquency through continuous modifications. The
commenter stated that data tracking should focus on: (1) Current levels
of delinquency under restructured loan terms; (2) number and dollar
amount of new TDRs modified during the quarter/year; (3) number and
amount of current TDRs in the portfolio and reserves in the ALLL for
TDRs; and (4) number and dollar amount of TDRs currently in the
portfolio that have been formally restructured where the delinquency
counters have re-set more than once during the last 12-month period to
identify loans that have been rolled. The Board will consider these
suggestions when it modifies the Call Report.
One FICU recommended that the final rule impose stricter monitoring
and reporting of TDRs. It offered one example, which is a requirement
for FICUs to track and report TDRs that are 30 days delinquent under
the restructured terms.
Many commenters noted confusion in the industry and among
examination staff about what makes a modified loan a TDR. Commenters
suggested that NCUA refrain from using ``workout loan'' and ``TDR''
interchangeably, stating that all workout loans are not TDRs. They
recommended that the proposal be restricted to TDRs to avoid confusion.
Another commenter requested that, if the term ``workouts'' has any
applicability in the final rule, a definition should clarify the
materiality or significance of the loan term changes before the loan is
deemed a ``workout.'' Two commenters stated that NCUA's definition of
``TDR'' is not consistent with FASB and suggested that NCUA review FASB
Accounting Standards Update No. 2011-02, ``A Creditor's Determination
of Whether a Restructuring Is a Troubled Debt Restructuring'' for
clarification. One FICU and a league asked NCUA to consider detailed
standards for FICUs and examiners to determine which loan modifications
qualify as TDRs. Similarly, one FICU noted that the proposal shifts
documentation requirements from TDRs to workout loans. It further noted
that GAAP allows for some workout loans to be immaterial and non-
reportable as TDRs if they satisfy ``insignificant'' criteria. The
commenter, therefore, suggested that the rule apply only to TDRs and
not to workout loans that do not meet the materiality component of
GAAP. The Board plans to direct staff to develop supervisory guidance
to examiners that will incorporate current agency regulatory and
examination approaches and address many of these areas that have caused
confusion in implementation. Staff will consider commenters concerns in
drafting the supervisory guidance. The supervisory guidance will be
provided to the credit union industry as well. However, the Board has
determined the final rule language will continue to incorporate both
the term ``TDR'' and the broader term ``workout'' in the final rule,
both of which are defined in the IRPS glossary.
Three leagues, one trade group, and two FICUs objected to the
proposal's statement ``that in an economic
[[Page 31998]]
downturn absent contrary supportable information workout loans are
TDRs.'' The commenters stated that this language only perpetuates
confusion about what constitutes a TDR and is inconsistent with the
definition of TDR in GAAP. One commenter stated that economic climate
should not be the barometer of how a TDR is defined. Another commenter
asked NCUA to address the definition of ``economic downturn'' and
``contrary supportable information,'' as well as what happens to
modified loans in an environment that is not an economic downturn. One
league urged NCUA to ensure that its glossary definitions are
consistent with GAAP and to eliminate the ``economic downturn''
language and simply adopt the GAAP definition of TDR. The Board notes
that in the NPRM, the proposed IRPS explicitly stated that ``[u]nder
this IRPS, TDR loans are as defined in generally accepted accounting
principles (GAAP) and the Board does not intend through this policy to
change the Financial Accounting Standards Board's (FASB) definition of
TDR in any way.'' 77 FR at 4933. Furthermore, it tracked GAAP in
defining TDR in the glossary. The NPRM also urged FICUs to consider
FASB clarifications in their recently revised, Accounting Standards
Update No. 2011-02 (April 2011) to the FASB Accounting Standards
Codification entitled, Receivables (Topic 310), ``A Creditor's
Determination of Whether a Restructuring is a Troubled Debt
Restructuring.'' The Board believes it is clear that the rule's focus
is on restructures that meet the GAAP definition of TDR. When a FICU
works with members in financial difficulty and grants term concessions
as described in GAAP, the FICU will have TDRs to report in its
regulatory reports. Working with members is consistent with its
mission. Particularly in downward economic cycles, the need to work
with members increases, thus the increase in restructuring strategies
to serve members. As such, the Board acknowledges the value of TDRs. If
a FICU enters into TDR arrangements that improve the collectability of
loans, properly recognizes loan losses, and restores the loans to
accrual status, the FICU has met its mission and its regulatory
reporting burden. Risk is mitigated, achieving a goal desired by both
NCUA and the FICU.
Two leagues and one trade group requested that the final rule
include additional guidance, consistent with GAAP, on impairment
testing and recognition requirements. Impairment testing is beyond the
scope of this rulemaking, the Board refers to IRPS 02-1, ``Allowance
for Loan and Lease Losses Methodologies and Documentation for Federally
Insured Credit Unions,'' and NCUA's Accounting Bulletin No. 06-01
(December 2006) that transmits the 2006 Interagency ALLL Policy
Statement for further information.
III. Final Rule and IRPS
a. Section 741.3, Lending Policies
The final rule amends Sec. 741.3(b)(2) to require FICUs to adopt
policies that govern loan workout arrangements and nonaccrual
practices. The rule specifically requires that a FICU's written
nonaccrual standards include the discontinuance of interest accrual on
loans that are past due by 90 days or more and requirements for
returning such loans, including MBLs workouts, to accrual status.
To set NCUA's supervisory expectations and assist FICUs in
complying with the amendments to Sec. 741.3(b)(2), the final rule
includes an appendix to Part 741. The appendix thoroughly addresses the
loan workout account management and reporting standards FICUs must
implement in order to comply with the rule. It also explains how FICUs
report their data collections related to TDRs on Call Reports. The
contents of the appendix are described in detail below.
b. Appendix C to Part 741, Interpretive Ruling and Policy Statement on
Loan Workouts, Nonaccrual Policy, and Regulatory Reporting of Troubled
Debt Restructured Loans
1. Written Loan Workout Policy and Monitoring Requirements
The Board recognizes loan workouts can be used to help borrowers
overcome temporary financial difficulties, such as loss of job, medical
emergency, or change in family circumstances like loss of a family
member. The Board further acknowledges that the lack of a sound workout
policy can mask the true performance and past due status of the loan
portfolio. Accordingly, the final rule requires the FICU board and
management to adopt and adhere to an explicit written policy and
standards that control the use of loan workouts, and establish controls
to ensure the policy is consistently applied. The loan workout policy
and practices should be commensurate with each credit union's size and
complexity, and must be in line with the credit union's broader risk
mitigation strategies.
The policy must define eligibility requirements (i.e., under what
conditions the FICU will consider a loan workout), including
establishing limits on the number of times an individual loan may be
modified.\2\ The policy must ensure the FICU makes loan workout
decisions based on the borrower's renewed willingness and ability to
repay the loan. In addition, the policy must establish sound controls
to ensure loan workout actions are appropriately structured, including
a prohibition against any authorizations of additional advances to
finance unpaid interest and credit union fees. The final IRPS does
provide that the policy may allow a FICU to make advances to cover
third-party fees, such as force-placed insurance or property taxes. The
FICU, however, cannot finance any related commissions it may receive
from the third party.
---------------------------------------------------------------------------
\2\ Broad based credit union programs commonly used as a member
benefit and implemented in a safe and sound manner limited to only
accounts in good standing, such as Skip-a-Pay programs, are not
intended to count toward these limits.
---------------------------------------------------------------------------
Furthermore, the Board believes loan workouts should be adequately
controlled and monitored by the board of directors and management, and
therefore requires the decision to re-age, extend, defer, renew, or
rewrite a loan, like any other revision to contractual terms, be
supported by the FICU's management information systems. Sound
management information systems are able to identify and document any
loan that is re-aged, extended, deferred, renewed, or rewritten,
including the frequency and extent such action has been taken.
Appropriate documentation typically shows that the FICU's personnel
communicated with the borrower, the borrower agreed to pay the loan in
full, and the borrower has the ability to repay the loan under the new
terms.
NCUA is concerned, however, about restructuring activity that
pushes existing losses into future reporting periods without improving
the loan's collectability. The final IRPS includes a provision
notifying FICUs that if they engage in restructuring activity on a loan
that results in restructuring a loan more often than once a year or
twice in five years, examiners will have higher expectations for the
documentation of the borrower's renewed willingness and ability to
repay the loan. Examiners will ask FICUs to provide evidence that their
policy of permitting multiple restructurings improve collectability.
In developing a written policy, the FICU board and management may
wish to consider similar parameters as those established in the FFIEC's
``Uniform Retail Credit Classification and Account Management Policy''
(FFIEC Policy). 65 FR 36903 (June 12, 2000). The FFIEC
[[Page 31999]]
Policy sets forth specific limitations on the number of times a loan
can be re-aged (for open-end accounts) or extended, deferred, renewed
or rewritten (for closed-end accounts). Additionally, LCU 09-CU-19,
``Evaluating Residential Real Estate Mortgage Loan Modification
Programs,'' outlines policy requirements for real estate modifications.
Those requirements remain applicable to real estate loan modifications
but could be adapted in part by the FICU in its written loan workout
policy for other loans.
The Board does not intend for these minimum requirements to be an
all inclusive list, rather they provide a basic framework within which
to establish a sound loan workout program.
2. Regulatory Reporting of Workout Loans Including TDR Past Due Status
The Board recognizes that loan workouts that qualify under GAAP as
TDRs require special financial reporting considerations. The final IRPS
mandates that the past due status of all loans should be calculated
consistent with loan contract terms, including amendments made to loan
terms through a formal restructure. The IRPS eliminates the current,
dual, and often manual delinquency tracking burden on FICUs managing
and reporting TDR loans, while instituting a nonaccrual policy on TDR
loans apart from past due status. The Board will modify the Call Report
instructions accordingly.
Additionally, the final IRPS institutes revised Call Report data
collections related to loan workouts eliminating much of the current
data collections on the broad category ``loan modifications,'' focusing
data collection on TDR loans. The Board will add additional data
elements as necessary to effectively monitor and measure TDR activity
and corresponding risk to the NCUSIF. This will assist national and
field examination and supervision staff both to detect the level of
activity and possible overuse of reworking a nonperforming loan
multiple times without improving overall collectability, and will
ensure income recognition is appropriate.
3. Loan Nonaccrual Policy
Generally, NCUA has required,\3\ and it has become accepted credit
union practice, to cease accruing interest on a loan when it becomes 90
days or more past due. The existing approach is referenced in various
letters and publications but currently is not memorialized or
enforceable through any statute or regulation. The final rule and IRPS
require a FICU to adopt written nonaccrual policies that specifically
address the discontinuance of interest accrual on loans past due by 90
days or more, as well as the requirements for returning such loans
(including member business loan workouts) to accrual status.
---------------------------------------------------------------------------
\3\ The policy was discussed in an obsolete version of the NCUA
Accounting Manual for FCUs, last published in June 1995.
---------------------------------------------------------------------------
Nonaccrual Status
The final IRPS specifies when FICUs must place loans in nonaccrual
status, including the reversal of previously accrued but uncollected
interest, sets the conditions for restoration of a nonaccrual loan to
accrual status, and discusses the criteria under GAAP for Cash or Cost
Recovery basis of income recognition. FICUs may not accrue interest on
any loan upon which principal or interest has been in default for a
period of 90 days or more, unless the loan is both ``well secured'' and
``in the process of collection.'' Additionally, FICUs must place loans
in nonaccrual status if maintained on a Cash (or Cost Recovery) basis
because of deterioration in the financial condition of the borrower, or
for which payment in full of principal or interest is not expected. The
IRPS also addresses the treatment of cash interest payments received
during periods of loan nonaccrual and prohibits the restoration of
previously reversed or charged-off accrued, but uncollected, interest
applicable to any loan placed in nonaccrual status.
Restoration to Accrual Status (not Including Member Business Loan
Workouts)
The final IRPS sets forth specific parameters for returning a
nonaccrual loan to accrual.
A nonaccrual loan may be returned to accrual status when:
Its past due status is less than 90 days, GAAP does not
require it to be maintained on the Cash or Cost Recovery basis, and the
credit union is plausibly assured of repayment of the remaining
contractual principal and interest within a reasonable period;
When it otherwise becomes well secured and in the process
of collection; or
The asset is a purchased impaired loan and it meets the
criteria under GAAP for accrual of income under the interest method
specified therein.
In restoring all loans to accrual status, if any interest payments
received while the loan was in nonaccrual status were applied to reduce
the recorded investment in the loan the application of these payments
to the loan's recorded investment must not be reversed (and interest
income must not be credited). Likewise, accrued but uncollected
interest reversed or charged off at the point the loan was placed on
nonaccrual status cannot be restored to accrual; it can only be
recognized as income if collected in cash or cash equivalents from the
member.
Restoration to Accrual Status on Member Business Loan Workouts
The Board recognizes there are unique circumstances governing the
restoration of accrual for member business loan workouts and has set
forth a separate policy in the proposal. This policy is largely derived
from the ``Interagency Policy Statement on Prudent Commercial Real
Estate Loan Workouts'' that NCUA and the other financial regulators
issued on October 30, 2009.\4\ The final IRPS requires a formally
restructured member business loan workout to remain in nonaccrual
status until the FICU can document a current credit evaluation of the
borrower's financial condition and prospects for repayment under the
revised terms. The evaluation must include consideration of the
borrower's sustained historical repayment performance for a reasonable
period prior to the date on which the loan is returned to accrual
status.
---------------------------------------------------------------------------
\4\ See Interagency Policy Statement on Prudent Commercial Real
Estate Loan Workouts (October 30, 2009) transmitted by Letter to
Credit Unions No. 10-CU-07, and available at http://www.ncua.gov.
---------------------------------------------------------------------------
A sustained period of repayment performance would be a minimum of
six consecutive timely payments under the restructured loan's terms of
principal and interest in cash or cash equivalents. In returning the
member business workout loan to accrual status, sustained historical
repayment performance for a reasonable time prior to the restructuring
may be taken into account. Such a restructuring must improve the
collectability of the loan in accordance with a reasonable repayment
schedule and does not relieve the FICU from the responsibility to
promptly charge off all identified losses.
4. Glossary
The final section of the IRPS is a glossary of terms used
throughout.
To assist commenters in understanding existing agency guidance, the
following illustration is provided:
[[Page 32000]]
Summary of Source Guidance Related to Lending and Loan Modifications
------------------------------------------------------------------------
Source of supervisory Member business
guidance Consumer lending lending
------------------------------------------------------------------------
Existing Recent Supervisory Letter to Credit Letter to Credit
Guidance on Lending and/or Union 11-CU-01, Unions 10-CU-07,
Loan Modifications. Residential Commercial Real
Mortgage Estate Loan
Foreclosure Workouts,
Concerns, (January transmitting
2011) http:// Interagency Policy
www.ncua.gov. Statement on
Letter to Credit Prudent Commercial
Unions 09-CU-19, Real Estate Loan
Evaluating Workouts, (June
Residential Real 2010), and
Estate Mortgage Enclosure http://
Loan Modification www.ncua.gov
Programs, Letter to Credit
(September 2009) Unions 10-CU-02,
http://www.ncua.gov. Current Risks in
Federal Financial Business Lending
Regulatory Agencies and Sound Risk
Issue Statement In Management
Support of the Practices,
``Making Home (February 2010)
Affordable'' Loan http://
Modification www.ncua.gov.
Program,'' (March
2009) http://www.ncua.gov.
Statement on Loss
Mitigation
Strategies for
Servicers of
Residential
Mortgages,
(September 2007)
http://www.ncua.gov..
Written Policy Requirement Final IRPS, Appendix Final IRPS, Appendix
on Frequency of C of Part 741. C of Part 741 and
Modifications. Letter to Credit
Unions 10-CU-07,
Commercial Real
Estate Loan
Workouts,
transmitting
Interagency Policy
Statement on
Prudent Commercial
Real Estate Loan
Workouts, (June
2010) and Enclosure
http://www.ncua.gov.
-------------------------------------------
Nonaccrual.................. Final IRPS, Appendix C of Part 741.
Delinquency................. Final IRPS, Appendix C of Part 741.
Allowance for Loan and Lease IRPS 02-3, Allowance for Loan and Lease
Losses. Losses Methodologies and Documentation
for Federally-Insured Credit
Unions (May 2002), http://www.ncua.gov.
2006 Interagency ALLL Policy Statement
transmitted by Accounting Bulletin 06-1
(December 2006),
http://www.ncua.gov.
Charge-offs................. Letter to Credit Unions No. 03-CU-01, Loan
Charge-off Guidance (January 2003), and
its Enclosure,
http://www.ncua.gov.
------------------------------------------------------------------------
IV. Regulatory Procedures
a. Regulatory Flexibility Act
The Regulatory Flexibility Act requires NCUA to prepare an analysis
to describe any significant economic impact agency rulemaking may have
on a substantial number of small credit unions, defined as those under
ten million dollars in assets. This rule tightens loan account
management processes that should already be in place in FICUs. While
FICUs are required to have policies that address loan management
protocols, the final rule and IRPS set additional parameters that are
consistent with existing best practices and federal banking regulators'
policies. NCUA has determined this final rule will not have a
significant impact on a substantial number of small credit unions so
NCUA is not required to conduct a Regulatory Flexibility Analysis.
b. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in
which an agency by rule creates a new paperwork burden on regulated
entities or modifies an existing burden. 44 U.S.C. 3507(d); 5 CFR part
1320. For purposes of the PRA, a paperwork burden may take the form of
either a reporting or a recordkeeping requirement, both referred to as
information collections. As required, NCUA has applied to the Office of
Management and Budget (OMB) for approval of the information collection
requirement described below.
The final rule contains an information collection in the form of a
written policy requirement. Any FICU making loan workout arrangements
that assist borrowers must have a written policy to govern this
activity. FICUs will only need to modify current policies to include
any additional parameters established in the rule. It is therefore
NCUA's view that implementing this type of policy will create minimum
burden to credit unions. The parameters established within the rule and
IRPS are usual and customary operating practices of a prudent financial
institution. In the proposed rule, NCUA estimated it should take a FICU
an average of 8 hours to modify current policies to comply with the
parameters set forth in the proposed IRPS. Therefore, the total initial
burden imposed to 7,250 FICUs for modifying the policies is
approximately 58,000 hours. NCUA further estimated a FICU spends on
average 15 minutes per month manually calculating and reporting past
due status on each TDR loan. This policy eliminates this requirement.
Per the September 30, 2011, Call Report, FICUs have 150,453 TDR loans
outstanding. Eliminating this reporting requirement therefore results
in an annual savings of 451,359 hours. Thus, on net, this policy
results in a substantial hours (393,359 annually) reduction of
regulatory burden.
OMB assigned No. 3133-XXXX to this rulemaking.
c. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(Pub. L. 104-121) provides generally for congressional review of agency
rules. A reporting requirement is triggered in instances where NCUA
issues a final rule as defined by Section 551 of the Administrative
Procedure Act. 5 U.S.C. 551. The Office of Management and Budget has
determined that this rule is not a major rule for purposes of the Small
Business Regulatory Enforcement Fairness Act of 1996.
d. Executive Order 13132
Executive Order 13132 encourages independent regulatory agencies to
consider the impact of their regulatory actions on state and local
interests. NCUA, an independent regulatory agency as defined in 44
U.S.C. 3502(5), voluntarily complies with the executive order to adhere
to fundamental federalism principles. This final rule applies to all
FICUs but will not have a substantial direct effect on the states, on
the relationship between the national government and the states, or on
the distribution of power and
[[Page 32001]]
responsibilities among the various levels of government. NCUA has
determined that this rule does not constitute a policy that has
federalism implications for purposes of the executive order.
e. Assessment of Federal Regulations and Policies on Families
NCUA has determined that this final rule will not affect family
well-being within the meaning of Section 654 of the Treasury and
General Government Appropriations Act, 1999, Public Law 105-277, 112
Stat. 2681 (1998).
List of Subjects in 12 CFR Part 741
Credit unions, Reporting and recordkeeping requirements.
By the National Credit Union Administration Board on May 24,
2012.
Mary F. Rupp,
Secretary of the Board.
For the reasons discussed above, NCUA amends 12 CFR part 741 as
follows:
PART 741--REQUIREMENTS FOR INSURANCE
0
1. The authority citation for part 741 continues to read:
Authority: 12 U.S.C. 1757, 1766(a), 1781-1790 and 1790d; 31
U.S.C. 3717.
0
2. In Sec. 741.3, revise paragraph (b)(2) to read as follows:
Sec. 741.3 Criteria.
* * * * *
(b) * * *
(2) The existence of written lending policies, including adequate
documentation of secured loans and the protection of security interests
by recording, bond, insurance or other adequate means, adequate
determination of the financial capacity of borrowers and co-makers for
repayment of the loan, adequate determination of value of security on
loans to ascertain that said security is adequate to repay the loan in
the event of default, loan workout arrangements, and nonaccrual
standards that include the discontinuance of interest accrual on loans
past due by 90 days or more and requirements for returning such loans,
including member business loans, to accrual status.
* * * * *
0
3. Add Appendix C to read as follows:
Appendix C to Part 741--Interpretive Ruling and Policy Statement on
Loan Workouts, Nonaccrual Policy, and Regulatory Reporting of Troubled
Debt Restructured Loans
This Interpretive Ruling and Policy Statement (IRPS) establishes
requirements for the management of loan workout \1\ arrangements,
loan nonaccrual, and regulatory reporting of troubled debt
restructured loans (herein after referred to as TDR or TDRs).
---------------------------------------------------------------------------
\1\ Terms defined in the Glossary will be italicized on their
first use in the body of this guidance.
---------------------------------------------------------------------------
This IRPS applies to all federally insured credit unions.
Under this IRPS, TDR loans are as defined in generally accepted
accounting principles (GAAP) and the Board does not intend through
this policy to change the Financial Accounting Standards Board's
(FASB) definition of TDR in any way. In addition to existing agency
policy, this IRPS sets NCUA's supervisory expectations governing
loan workout policies and practices and loan accruals.
Written Loan Workout Policy and Monitoring Requirements \2\
---------------------------------------------------------------------------
\2\ For additional guidance on member business lending
extension, deferral, renewal, and rewrite policies, see Interagency
Policy Statement on Prudent Commercial Real Estate Loan Workouts
(October 30, 2009) transmitted by Letter to Credit Unions No. 10-CU-
07, and available at http://www.ncua.gov.
---------------------------------------------------------------------------
For purposes of this policy statement, types of workout loans to
borrowers in financial difficulties include re-agings, extensions,
deferrals, renewals, or rewrites. See the Glossary entry on
``workouts'' for further descriptions of each term. Borrower
retention programs or new loans are not encompassed within this
policy nor considered by the Board to be workout loans.
Loan workouts can be used to help borrowers overcome temporary
financial difficulties, such as loss of job, medical emergency, or
change in family circumstances like loss of a family member. Loan
workout arrangements should consider and balance the best interests
of both the borrower and the credit union.
The lack of a sound written policy on workouts can mask the true
performance and past due status of the loan portfolio. Accordingly,
the credit union board and management must adopt and adhere to an
explicit written policy and standards that control the use of loan
workouts, and establish controls to ensure the policy is
consistently applied. The loan workout policy and practices should
be commensurate with each credit union's size and complexity, and
must be in line with the credit union's broader risk mitigation
strategies. The policy must define eligibility requirements (i.e.
under what conditions the credit union will consider a loan
workout), including establishing limits on the number of times an
individual loan may be modified.\3\ The policy must also ensure
credit unions make loan workout decisions based on the borrower's
renewed willingness and ability to repay the loan. If a credit union
engages in restructuring activity on a loan that results in
restructuring the loan more often than once a year or twice in five
years, examiners will have higher expectations for the documentation
of the borrower's renewed willingness and ability to repay the loan.
NCUA is concerned about restructuring activity that pushes existing
losses into future reporting periods without improving the loan's
collectability. One way a credit union can provide convincing
evidence that multiple restructurings improve collectability is to
perform validation of completed multiple restructurings that
substantiate the claim. Examiners will ask for such validation
documentation if the credit union engages in multiple restructurings
of a loan.
---------------------------------------------------------------------------
\3\ Broad based credit union programs commonly used as a member
benefit and implemented in a safe and sound manner limited to only
accounts in good standing, such as Skip-a-Pay programs, are not
intended to count toward these limits.
---------------------------------------------------------------------------
In addition, the policy must establish sound controls to ensure
loan workout actions are appropriately structured.\4\ The policy
must provide that in no event may the credit union authorize
additional advances to finance unpaid interest and credit union
fees. The credit union may, however, make advances to cover third-
party fees, excluding credit union commissions, such as force-placed
insurance or property taxes. For loan workouts granted, the credit
union must document the determination that the borrower is willing
and able to repay the loan.
---------------------------------------------------------------------------
\4\ In developing a written policy, the credit union board and
management may wish to consider similar parameters as those
established in the FFIEC's ``Uniform Retail Credit Classification
and Account Management Policy'' (FFIEC Policy). 65 FR 36903 (June
12, 2000). The FFIEC Policy sets forth specific limitations on the
number of times a loan can be re-aged (for open-end accounts) or
extended, deferred, renewed or rewritten (for closed-end accounts).
Additionally, NCUA Letter to Credit Unions (LCU) 09-CU-19,
``Evaluating Residential Real Estate Mortgage Loan Modification
Programs,'' outlines policy requirements for real estate
modifications. Those requirements remain applicable to real estate
loan modifications but could be adapted in part by the credit union
in their written loan workout policy for other loans.
---------------------------------------------------------------------------
Management must ensure that comprehensive and effective risk
management and internal controls are established and maintained so
that loan workouts can be adequately controlled and monitored by the
credit union's board of directors and management, to provide for
timely recognition of losses,\5\ and to permit review by examiners.
The credit union's risk management framework must include thresholds
based on aggregate volume of loan workout activity that trigger
enhanced reporting to the board of directors. This reporting will
enable the credit union's board of directors to evaluate the
effectiveness of the credit union's loan workout program, any
implications to the organization's financial condition, and to make
any compensating adjustments to the overall business strategy.
[[Page 32002]]
This information will also then be available to examiners upon
request.
---------------------------------------------------------------------------
\5\ Refer to NCUA guidance on charge-offs set forth in LCU 03-
CU-01, ``Loan Charge-off Guidance,'' dated January 2003. Examiners
will require that a reasonable written charge-off policy is in place
and that it is consistently applied. Additionally, credit unions
need to adjust historical loss factors when calculating ALLL needs
for pooled loans to account for any loans with protracted charge-off
timeframes (e.g., 12 months or greater). See discussions on the
latter point in the 2006 Interagency ALLL Policy Statement
transmitted by Accounting Bulletin 06-1 (December 2006).
---------------------------------------------------------------------------
To be effective, management information systems need to track
the principal reductions and charge-off history of loans in workout
programs by type of program. Any decision to re-age, extend, defer,
renew, or rewrite a loan, like any other revision to contractual
terms, needs to be supported by the credit union's management
information systems. Sound management information systems are able
to identify and document any loan that is re-aged, extended,
deferred, renewed, or rewritten, including the frequency and extent
such action has been taken. Documentation normally shows that the
credit union's personnel communicated with the borrower, the
borrower agreed to pay the loan in full under any new terms, and the
borrower has the ability to repay the loan under any new terms.
Regulatory Reporting of Workout Loans Including TDR Past Due Status
The past due status of all loans will be calculated consistent
with loan contract terms, including amendments made to loan terms
through a formal restructure. Credit unions will report delinquency
on the Call Report consistent with this policy.\6\
---------------------------------------------------------------------------
\6\ Subsequent Call Reports and accompanying instructions will
reflect this policy, including focusing data collection on loans
meeting the definition of TDR under GAAP. In reporting TDRs on
regulatory reports, the data collections will include all TDRs that
meet the GAAP criteria for TDR reporting, without the application of
materiality threshold exclusions based on scoping or reporting
policy elections of credit union preparers or their auditors. Credit
unions should also refer to the recently revised standard from the
FASB, Accounting Standards Update No. 2011-02 (April 2011) to the
FASB Accounting Standards Codification entitled, Receivables (Topic
310), ``A Creditor's Determination of Whether a Restructuring is a
Troubled Debt Restructuring.'' This clarified the definition of a
TDR, which has the practical effect in the current economic
environment to broaden loan workouts that constitute a TDR. This
standard is effective for annual periods ending on or after December
15, 2012.
---------------------------------------------------------------------------
Loan Nonaccrual Policy
Credit unions must ensure appropriate income recognition by
placing loans in nonaccrual status when conditions as specified
below exist, reversing or charging-off previously accrued but
uncollected interest, complying with the criteria under GAAP for
Cash or Cost Recovery basis of income recognition, and following the
specifications below regarding restoration of a nonaccrual loan to
accrual status.\7\ This policy on loan accrual is consistent with
longstanding credit union industry practice as implemented by the
NCUA over the last several decades. The balance of the policy
relates to member business loan workouts and is similar to the FFIEC
policies adopted by the federal banking agencies \8\ as set forth in
the FFIEC Call Report for banking institutions and its
instructions.\9\
---------------------------------------------------------------------------
\7\ Placing a loan in nonaccrual status does not change the loan
agreement or the obligations between the borrower and the credit
union. Only the parties can effect a restructuring of the original
loan terms or otherwise settle the debt.
\8\ The federal banking agencies are the Board of Governors of
the Federal Reserve System, the Federal Deposit Insurance
Corporation, and the Office of the Comptroller of the Currency.
\9\ FFIEC Report of Condition and Income Forms and User Guides,
Updated September 2011, http://www.fdic.gov.
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Nonaccrual Status
Credit unions may not accrue interest \10\ on any loan upon
which principal or interest has been in default for a period of 90
days or more, unless the loan is both ``well secured'' and ``in the
process of collection.'' \11\ Additionally, loans will be placed in
nonaccrual status if maintained on a Cash (or Cost Recovery) basis
because of deterioration in the financial condition of the borrower,
or for which payment in full of principal or interest is not
expected. For purposes of applying the ``well secured'' and ``in
process of collection'' test for nonaccrual status listed above, the
date on which a loan reaches nonaccrual status is determined by its
contractual terms.
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\10\ Nonaccrual of interest also includes the amortization of
deferred net loan fees or costs, or the accretion of discount.
Nonaccrual of interest on loans past due 90 days or more is a
longstanding agency policy and credit union practice.
\11\ A purchased credit impaired loan asset need not be placed
in nonaccrual status as long as the criteria for accrual of income
under the interest method in GAAP is met. Also, the accrual of
interest on workout loans is covered in a separate section of this
IRPS later in the policy statement.
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While a loan is in nonaccrual status, some or all of the cash
interest payments received may be treated as interest income on a
cash basis as long as the remaining recorded investment in the loan
(i.e., after charge-off of identified losses, if any) is deemed to
be fully collectable. The reversal of previously accrued, but
uncollected, interest applicable to any loan placed in nonaccrual
status must be handled in accordance with GAAP.\12\ Where assets are
collectable over an extended period of time and, because of the
terms of the transactions or other conditions, there is no
reasonable basis for estimating the degree of collectability--when
such circumstances exist, and as long as they exist--consistent with
GAAP the Cost Recovery Method of accounting must be used.\13\ Use of
the Cash or Cost Recovery basis for these loans and the statement on
reversing previous accrued interest is the practical implementation
of relevant accounting principles.
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\12\ Acceptable accounting treatment includes a reversal of all
previously accrued, but uncollected, interest applicable to loans
placed in a nonaccrual status against appropriate income and balance
sheet accounts. For example, one acceptable method of accounting for
such uncollected interest on a loan placed in nonaccrual status is:
(1) To reverse all of the unpaid interest by crediting the ``accrued
interest receivable'' account on the balance sheet, (2) to reverse
the uncollected interest that has been accrued during the calendar
year-to-date by debiting the appropriate ``interest and fee income
on loans'' account on the income statement, and (3) to reverse any
uncollected interest that had been accrued during previous calendar
years by debiting the ``allowance for loan and lease losses''
account on the balance sheet. The use of this method presumes that
credit union management's additions to the allowance through charges
to the ``provision for loan and lease losses'' on the income
statement have been based on an evaluation of the collectability of
the loan and lease portfolios and the ``accrued interest
receivable'' account.
\13\ When a purchased impaired loan or debt security that is
accounted for in accordance with ASC Subtopic 310-30, ``Receivables-
Loans and Debt Securities Acquired with Deteriorated Credit
Quality,'' has been placed on nonaccrual status, the cost recovery
method should be used, when appropriate.
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Restoration to Accrual Status for All Loans except Member Business
Loan Workouts
A nonaccrual loan may be restored to accrual status when:
Its past due status is less than 90 days, GAAP does not
require it to be maintained on the Cash or Cost Recovery basis, and
the credit union is plausibly assured of repayment of the remaining
contractual principal and interest within a reasonable period;
When it otherwise becomes both well secured and in the
process of collection; or
The asset is a purchased impaired loan and it meets the
criteria under GAAP for accrual of income under the interest method
specified therein.
In restoring all loans to accrual status, if any interest
payments received while the loan was in nonaccrual status were
applied to reduce the recorded investment in the loan the
application of these payments to the loan's recorded investment must
not be reversed (and interest income must not be credited).
Likewise, accrued but uncollected interest reversed or charged-off
at the point the loan was placed on nonaccrual status cannot be
restored to accrual; it can only be recognized as income if
collected in cash or cash equivalents from the member.
Restoration to Accrual Status on Member Business Loan Workouts \14\
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\14\ This policy is derived from the ``Interagency Policy
Statement on Prudent Commercial Real Estate Loan Workouts'' NCUA and
the other financial regulators issued on October 30, 2009.
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A formally restructured member business loan workout need not be
maintained in nonaccrual status, provided the restructuring and any
charge-off taken on the loan are supported by a current, well
documented credit evaluation of the borrower's financial condition
and prospects for repayment under the revised terms. Otherwise, the
restructured loan must remain in nonaccrual status. The evaluation
must include consideration of the borrower's sustained historical
repayment performance for a reasonable period prior to the date on
which the loan is returned to accrual status. A sustained period of
repayment performance would be a minimum of six consecutive payments
and would involve timely payments under the restructured loan's
terms of principal and interest in cash or cash equivalents. In
returning the member business workout loan to accrual status,
sustained historical repayment performance for a reasonable time
prior to the restructuring may be taken into account. Such a
restructuring must improve the collectability of the loan in
accordance with a reasonable repayment schedule and does not relieve
the credit union from the responsibility to promptly charge off all
identified losses.
[[Page 32003]]
The graph below provides an example of a schedule of repayment
performance to demonstrate a determination of six consecutive
payments. If the original loan terms required a monthly payment of
$1,500, and the credit union lowered the borrower's payment to
$1,000 through formal member business loan restructure, then based
on the first row of the graph, the ``sustained historical repayment
performance for a reasonable time prior to the restructuring'' would
encompass five of the pre-workout consecutive payments that were at
least $1,000 (Months 1 through 5); so, in total, the six consecutive
repayment burden would be met by the first month post workout (Month
6). In the second row, only one of the pre-workout payments would
count toward the six consecutive repayment requirement (Month 5),
because it is the first month in which the borrower made a payment
of at least $1,000, after failing to pay at least that amount. The
loan, therefore, would remain on nonaccrual for at least five post-
workout consecutive payments (Months 6 through 10) provided the
borrower continues to make payments consistent with the restructured
terms.
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Pre-workout Post-workout
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Month 1 Month 2 Month 3 Month 4 Month 5 Month 6 Month 7 Month 8 Month 9 Month 10
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$1,500 $1,200 $1,200 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000
1,500 1,200 900 875 1,000 1,000 1,000 1,000 1,000 1,000
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After a formal restructure of a member business loan, if the
restructured loan has been returned to accrual status, the loan
otherwise remains subject to the nonaccrual standards of this
policy. If any interest payments received while the member business
loan was in nonaccrual status were applied to reduce the recorded
investment in the loan the application of these payments to the
loan's recorded investment must not be reversed (and interest income
must not be credited). Likewise, accrued but uncollected interest
reversed or charged-off at the point the member business workout
loan was placed on nonaccrual status cannot be restored to accrual;
it can only be recognized as income if collected in cash or cash
equivalents from the member.
The following tables summarize nonaccrual and restoration to
accrual requirements previously discussed:
Table 1--Nonaccrual Criteria
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Additional
Action Condition identified consideration
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Nonaccrual on All Loans..... 90 days or more past See Glossary
due unless loan is descriptors for
both well secured ``well secured''
and in the process and ``in the
of collection; or process of
If the loan must be collection.''
maintained on the Consult GAAP for
Cash or Cost Cash or Cost
Recovery basis Recovery basis
because there is a income recognition
deterioration in guidance. See also
the financial Glossary
condition of the Descriptors.
borrower, or for
which payment in
full of principal
or interest is not
expected.
Nonaccrual on Member Continue on See Table 2--Restore
Business Loan Workouts. nonaccrual at to Accrual.
workout point and
until restore to
accrual criteria
are met.
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Table 2--Restore to Accrual
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Additional
Action Condition identified consideration
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Restore to Accrual on All When the loan is See Glossary
Loans except Member past due less than descriptors for
Business Loan Workouts. 90 days, GAAP does ``well secured''
not require it to and ``in the
be maintained on process of
the Cash or Cost collection.''
Recovery basis, and Interest payments
the credit union is received while the
plausibly assured loan was in
of repayment of the nonaccrual status
remaining and applied to
contractual reduce the recorded
principal and investment in the
interest within a loan must not be
reasonable period. reversed and income
When it otherwise credited. Likewise,
becomes both ``well accrued but
secured'' and ``in uncollected
the process of interest reversed
collection''; or. or charged-off at
The asset is a the point the loan
purchased impaired was placed on
loan and it meets nonaccrual status
the criteria under cannot be restored
GAAP for accrual of to accrual.
income under the
interest method.
Restore to Accrual on Member Formal restructure The evaluation must
Business Loan Workouts. with a current, include
well documented consideration of
credit evaluation the borrower's
of the borrower's sustained
financial condition historical
and prospects for repayment
repayment under the performance for a
revised terms. minimum of six
timely consecutive
payments comprised
of principal and
interest. In
returning the loan
to accrual status,
sustained
historical
repayment
performance for a
reasonable time
prior to the
restructuring may
be taken into
account.
Interest payments
received while the
member business
loan was in
nonaccrual status
and applied to
reduce the recorded
investment in the
loan must not be
reversed and income
credited. Likewise,
accrued but
uncollected
interest reversed
or charged-off at
the point the
member business
loan was placed on
nonaccrual status
cannot be restored
to accrual.
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[[Page 32004]]
Glossary \15\
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\15\ Terms defined in the Glossary will be italicized on their
first use in the body of this guidance.
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``Cash Basis'' method of income recognition is set forth in GAAP
and means while a loan is in nonaccrual status, some or all of the
cash interest payments received may be treated as interest income on
a cash basis as long as the remaining recorded investment in the
loan (i.e., after charge-off of identified losses, if any) is deemed
to be fully collectible.\16\
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\16\ Acceptable accounting practices include: (1) Allocating
contractual interest payments among interest income, reduction of
the recorded investment in the asset, and recovery of prior charge-
offs. If this method is used, the amount of income that is
recognized would be equal to that which would have been accrued on
the loan's remaining recorded investment at the contractual rate;
and, (2) accounting for the contractual interest in its entirety
either as income, reduction of the recorded investment in the asset,
or recovery of prior charge-offs, depending on the condition of the
asset, consistent with its accounting policies for other financial
reporting purposes.
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``Charge-off'' means a direct reduction (credit) to the carrying
amount of a loan carried at amortized cost resulting from
uncollectability with a corresponding reduction (debit) of the ALLL.
Recoveries of loans previously charged off should be recorded when
received.
``Cost Recovery'' method of income recognition means equal
amounts of revenue and expense are recognized as collections are
made until all costs have been recovered, postponing any recognition
of profit until that time.\17\
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\17\ FASB Accounting Standards Codification (ASC) 605-10-25-4,
``Revenue Recognition, Cost Recovery.''
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``Generally accepted accounting principles (GAAP)'' means
official pronouncements of the FASB as memorialized in the FASB
Accounting Standards Codification[supreg] as the source of
authoritative principles and standards recognized to be applied in
the preparation of financial statements by federally-insured credit
unions in the United States with assets of $10 million or more.
``In the process of collection'' means collection of the loan is
proceeding in due course either: (1) Through legal action, including
judgment enforcement procedures, or (2) in appropriate
circumstances, through collection efforts not involving legal action
which are reasonably expected to result in repayment of the debt or
in its restoration to a current status in the near future, i.e.,
generally within the next 90 days.
``Member Business Loan'' is defined consistent with Section
723.1 of NCUA's Member Business Loan Rule, 12 CFR 723.1.
``New Loan'' means the terms of the revised loan are at least as
favorable to the credit union (i.e., terms are market-based, and
profit driven) as the terms for comparable loans to other customers
with similar collection risks who are not refinancing or
restructuring a loan with the credit union, and the revisions to the
original debt are more than minor.
``Past Due'' means a loan is determined to be delinquent in
relation to its contractual repayment terms including formal
restructures, and must consider the time value of money. Credit
unions may use the following method to recognize partial payments on
``consumer credit,'' i.e., credit extended to individuals for
household, family, and other personal expenditures, including credit
cards, and loans to individuals secured by their personal residence,
including home equity and home improvement loans. A payment
equivalent to 90 percent or more of the contractual payment may be
considered a full payment in computing past due status.
``Recorded Investment in a Loan'' means the loan balance
adjusted for any unamortized premium or discount and unamortized
loan fees or costs, less any amount previously charged off, plus
recorded accrued interest.
``Troubled Debt Restructuring'' is as defined in GAAP and means
a restructuring in which a credit union, for economic or legal
reasons related to a member borrower's financial difficulties,
grants a concession to the borrower that it would not otherwise
consider.\18\ The restructuring of a loan may include, but is not
necessarily limited to: (1) The transfer from the borrower to the
credit union of real estate, receivables from third parties, other
assets, or an equity interest in the borrower in full or partial
satisfaction of the loan, (2) a modification of the loan terms, such
as a reduction of the stated interest rate, principal, or accrued
interest or an extension of the maturity date at a stated interest
rate lower than the current market rate for new debt with similar
risk, or (3) a combination of the above. A loan extended or renewed
at a stated interest rate equal to the current market interest rate
for new debt with similar risk is not to be reported as a
restructured troubled loan.
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\18\ FASB ASC 310-40, ``Troubled Debt Restructuring by
Creditors.''
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``Well secured'' means the loan is collateralized by: (1) A
perfected security interest in, or pledges of, real or personal
property, including securities with an estimable value, less cost to
sell, sufficient to recover the recorded investment in the loan, as
well as a reasonable return on that amount, or (2) by the guarantee
of a financially responsible party.
``Workout Loan'' means a loan to a borrower in financial
difficulty that has been formally restructured so as to be
reasonably assured of repayment (of principal and interest) and of
performance according to its restructured terms. A workout loan
typically involves a re-aging, extension, deferral, renewal, or
rewrite of a loan.\19\ For purposes of this policy statement,
workouts do not include loans made to market rates and terms such as
refinances, borrower retention actions, or new loans.\20\
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\19\ ``Re-Age'' means returning a past due account to current
status without collecting the total amount of principal, interest,
and fees that are contractually due.
``Extension'' means extending monthly payments on a closed-end
loan and rolling back the maturity by the number of months extended.
The account is shown current upon granting the extension. If
extension fees are assessed, they should be collected at the time of
the extension and not added to the balance of the loan.
``Deferral'' means deferring a contractually due payment on a
closed-end loan without affecting the other terms, including
maturity, of the loan. The account is shown current upon granting
the deferral.
``Renewal'' means underwriting a matured, closed-end loan
generally at its outstanding principal amount and on similar terms.
``Rewrite'' means significantly changing the terms of an
existing loan, including payment amounts, interest rates,
amortization schedules, or its final maturity.
\20\ There may be instances where a workout loan is not a TDR
even though the borrower is experiencing financial hardship. For
example, a workout loan would not be a TDR if the fair value of cash
or other assets accepted by a credit union from a borrower in full
satisfaction of its receivable is at least equal to the credit
union's recorded investment in the loan, e.g., due to charge-offs.
[FR Doc. 2012-13214 Filed 5-30-12; 8:45 am]
BILLING CODE 7535-01-P