[Federal Register Volume 60, Number 98 (Monday, May 22, 1995)]
[Rules and Regulations]
[Pages 26979-27005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11943]



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[[Page 26980]]

DEPARTMENT OF AGRICULTURE

Rural Housing and Community Development Service
Rural Business and Cooperative Development Service
Rural Utilities Service
Consolidated Farm Service Agency

7 CFR Part 1980

RIN 0575-AB15


Rural Housing Loans

AGENCIES: Rural Housing and Community Development Service, Rural 
Business and Cooperative Development Service, Rural Utilities Service, 
and Consolidated Farm Service Agency; USDA.

ACTION: Final rule.

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SUMMARY: The Rural Housing and Community Development Service (RHCDS) 
amends its Guaranteed Rural Housing Loans regulation. This action is 
taken to address issues which arose during the implementation phase of 
the program. The intended effect of this action is to make the program 
more acceptable to lenders and the secondary market for mortgage loans, 
to remove RHCDS internal administrative procedures from the Federal 
Register, and to make minor adjustments and corrections as a result of 
the Agency's experience in implementing the program.

EFFECTIVE DATE: June 21, 1995.

FOR FURTHER INFORMATION CONTACT: Michael S. Feinberg, Senior Loan 
Specialist, Rural Housing and Community Development Service, USDA, Room 
5334-S, South Agriculture Building, 14th and Independence SW., 
Washington, DC 20250, telephone (202) 720-1474.

SUPPLEMENTARY INFORMATION:

Classification

    This rule has been determined to be significant/economically 
significant and was reviewed by Office of Management and Budget under 
Executive Order 12866.

Paperwork Reduction Act

    The information collection and recordkeeping requirements contained 
in this regulation have been previously approved by the Office of 
Management and Budget (OMB), except for Sec. 1980.351, which will not 
become effective until approved by OMB, in accordance with the 
Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35). The assigned 
OMB control number is 0575-0078. Please send written comments to the 
Office of Information and Regulatory Affairs, OMB, Attention: Desk 
Officer of USDA, Washington, D.C. 20503. Please send a copy of your 
comments to Jack Holston, Agency Clearance Officer, USDA, RECD, Ag Box 
0743, Washington, DC 20250. (OMB# 0575-0078)

Environmental Impact Statement

    This document has been reviewed in accordance with 7 CFR part 1940, 
subpart G, ``Environmental Program.'' It is the determination of RHCDS 
that this action does not constitute a major Federal action 
significantly affecting the quality of the human environment, and in 
accordance with the National Environmental Policy Act of 1969, Pub. L. 
91-190, an Environmental Impact Statement is not required.

Intergovernmental Consultation

    For the reason set forth in the final rule related Notice to 7 CFR 
part 3015, subpart V, 48 FR 29115, June 24, 1983, this program/activity 
is excluded from the scope of Executive Order (EO) 12372 which requires 
intergovernmental consultation with State and local officials.

Civil Justice Reform

    This final rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. In accordance with this rule: (1) all state and 
local laws and regulations that are in conflict with this rule will be 
preempted; (2) no retroactive effect will be given to this rule; and 
(3) administrative proceedings in accordance with the regulations of 
the agency at 7 CFR part 1900 subpart B or those regulations published 
by the Department of Agriculture to implement the provisions of the 
National Appeals Division as mandated by the Department of Agriculture 
Reorganization Act of 1994, whichever is applicable, must be exhausted 
before bringing suit in court challenging action taken under this rule 
unless those regulations specifically allow bringing suit at an earlier 
time.

Programs Affected

    This program is listed in the Catalog of Federal Domestic 
Assistance under 10.410, Very Low to Moderate Income Housing Loans.

Discussion

    On September 3, 1993, Farmers Home Administration (FmHA) published 
a proposed rule with request for comments for the Guaranteed Rural 
Housing (GRH) program. We received forty-two comments. Comments were 
from Agency employees or employee groups, lenders, secondary market 
sources, and various interest groups.
    The Federal Crop Insurance Reform and Department of Agriculture Act 
of 1994, Public Law No. 103-354, signed into law on October 13, 1994, 
resulted in the restructuring of the Department of Agriculture's Rural 
Housing programs, formerly carried out by FmHA, which are now assigned 
to RHCDS. This change is reflected in this regulation.
    The Agency discussed the need to make the program more compatible 
with existing mortgage lending programs. Many of the comments addressed 
this issue. Some of the respondents felt that the Agency should make 
the program more like conventional loans. Others advocated the use of 
other Federal mortgage programs as a guide. We tried to keep the better 
features of both conventional and Government programs to make the 
Guaranteed Rural Housing Program as easy for lenders to use as 
possible. RHCDS believes the easier it is for lenders to participate, 
the more borrowers can be served with the program.
    This regulation omits the detailed internal agency administrative 
instruction used by the field offices to administer the program. In the 
past, RHCDS program regulations and FmHA Instructions have been the 
same. Agency policy is to publish any regulation which confers a 
benefit or imposes an obligation on the public. It is also agency 
policy to publish any regulation which contains information necessary 
for members of the public to understand their responsibilities. The 
Agency does not intend to publish a regulation that omits or evades 
issues which are subject to public comment or would be of interest to 
the public. Any substantive changes in the regulation will continue to 
be published in the Federal Register. Each RHCDS field office has a 
copy of the FmHA Instruction and a copy is available upon written 
request to RHCDS.
    Some respondents, mostly RHCDS employees, focused on the lack of 
detailed administrative instructions. The Agency continues to publish 
its FmHA Instruction, discussed above, which contains information on 
carrying out administrative details.
    In previous publications of this regulation, RHCDS incorporated the 
forms used in the program into the Federal Register. RHCDS no longer 
publishes the forms. We incorporated the substantive materials from the 
forms into the regulation.
    We discuss other significant changes below in general order of 
appearance in [[Page 26981]] the regulation, not based on order of 
importance.
    RHCDS added several new definitions based on the comments. New 
definitions include: Agency, Co-applicant, Net proceeds, and Qualifying 
income.
    One respondent suggested a section for abbreviations and acronyms 
which we added. The preamble for the Proposed Rule erroneously stated 
that the definition for ``Existing Dwelling'' was deleted. The 
definition for ``Existing Dwelling'' provides that an existing dwelling 
is one ``which has been occupied for one year as a primary residence.'' 
Several respondents suggested that RHCDS revise the standard. They 
proposed that an existing dwelling is one that has been completed for 
more than 12 months as evidenced by a certificate of occupancy. RHCDS 
agrees and adopts this change.
    Several respondents pointed out that the program does not provide 
for dwellings under construction before the lender receives an 
application for a guaranteed housing loan. This includes speculative 
dwellings as well as dwellings built by builders not familiar with the 
RHCDS program. This results in a burden on builders and home-buyers who 
would have to wait until the dwelling is more than 12 months old before 
receiving a loan. RHCDS addresses this in its direct program by 
limiting the amount of the loan to 90 percent of the appraised value. 
Based on the comments, we incorporated this same provision into the 
Guaranteed Rural Housing program.
    One respondent indicated a need for clarification of ``first time 
homebuyer.'' The authorizing legislation provides for granting 
preference to first time homebuyers. If there are two requests for 
commitments ready for approval but there is a shortage of funds, RHCDS 
gives preference to the first time homebuyer over another applicant.
    One respondent noted that the Proposed Rule omitted a provision 
that allowed sale of the loan directly to Fannie Mae and Freddie Mac. 
This has been corrected.
    One respondent encouraged RHCDS to improve the accessibility of 
housing counseling in rural areas. RHCDS has solicited interested 
parties for implementation of a demonstration counseling program (see 
Federal Register Vol. 59, No. 31, page 7240 dated February 15, 1994). 
Loan applicants will be required to attend and complete the housing 
counseling if it is available in the area.
    Several respondents indicated that the various provisions for 
lender reviews were confusing. RHCDS removed the review requirements 
that were duplicative.
    RHCDS had revised the section on loan purposes in the Proposed 
Rule. Several respondents requested restoration of certain specific 
items such as storm cellars, energy saving measures, etc. RHCDS did not 
intend to exclude storm cellars, energy saving measures, etc. as long 
as they are part of the dwelling acquisition. This has been clarified.
    Several respondents complained about the prohibition on refinancing 
in section 1980.311(a). They argued refinancing could assist some 
homeowners in retaining their dwellings. Some respondents suggested 
guaranteed loans could help in the graduation of direct loans. The 
authorizing legislation limits the program to assistance for housing 
acquisition only. There is no authority for refinancing. In addition, 
the demand for guaranteed housing dollars exceeds available funds.
    RHCDS proposed a prohibition on dwellings with in-ground swimming 
pools. Several respondents argued that some areas of the country have 
existing housing stock that is modest in cost even though there is a 
pool. The respondents commented that the value of the dwelling is often 
not significantly affected by the pool. They argued exclusion of pools 
would preclude financing many otherwise eligible dwellings. RHCDS 
continues to believe that it is not appropriate to finance dwellings 
with in-ground pools. No change is made.
    RHCDS has had a long standing policy of financing in areas only 
where the streets and roads are maintained by a public entity. We 
proposed to permit financing where the streets and roads are maintained 
by a Homeowner Association in projects which have been approved or 
accepted by HUD, VA, Fannie Mae, or Freddie Mac. One respondent 
observed that the issue of project acceptance is better placed in a 
different paragraph. RHCDS agrees and we revised and restructured this 
portion of the regulation.
    We received several comments on the proposal to replace the 
provision that limits the site to one acre. RHCDS proposed that the 
value of the site cannot exceed 30 percent of the total value of the 
property. One respondent felt the proposed change was not as clear as 
the 1 acre rule. Some respondents believed the 30 percent rule may 
cause problems in high cost areas. One respondent indicated that the 
one acre rule is easier to explain and understand. Another respondent 
suggested the 30 percent rule is an unnecessary regulatory burden. Most 
of the comments, however, favored the proposal. Many people felt that 
the one acre rule was overly restrictive in many areas of the country. 
RHCDS believes the issue of high cost areas is adequately addressed by 
the provision that the 30% limitation does not apply when the site 
cannot be subdivided into two or more sites. The intent of the rule is 
to assure financing is limited to rural residences and to avoid 
financing income producing properties. Other lenders use a similar 
provision.
    RHCDS required completion of all development work before issuance 
of the guarantee. Several respondents observed that RHCDS has no 
provision for issuance of the guarantee when there is a delay in 
completion of required development work due to inclement weather. This 
requires lenders to delay closing until completion of the development 
work and places undue burden on both the purchaser and the seller. The 
respondents suggested RHCDS adopt a provision allowing the use of 
escrow accounts in situations where necessary repair work is delayed 
due to weather. RHCDS agrees that this would reduce the regulatory 
burden for its customers.
    Many respondents expressed interest in section 1980.317 which 
implements Executive Order 11246. Respondents took particular interest 
in the equal opportunity and nondiscrimination inspection and reporting 
requirements. A number of the respondents argued that these 
requirements should not apply to guaranteed loans in as much as there 
is no direct federal financing involved. Some respondents argued that 
since construction draws are not allowed, RHCDS is not a party in the 
construction process. While RHCDS is not directly involved in the 
construction financing, there likely would be no construction contract 
without the RHCDS guarantee. Executive Order 11246 applies when there 
is a construction contract of more than $10,000 between the borrower 
and the builder.
    Several comments addressed flood zones. RHCDS has long had a policy 
of not financing dwellings located within a flood plain unless it could 
be demonstrated that there was no alternative. This policy is derived 
from Executive Order 11988, Flood Plain Management. Practical 
alternatives are addressed through the environmental review process. In 
addition, the Agency requires that the first floor elevation to be 
above the 100 year flood line. These are not changes to RHCDS policy or 
to the GRH program. This revision simply incorporates the language from 
other [[Page 26982]] Agency regulations into this regulation for 
consistency.
    RHCDS had proposed to amend section 1980.324(b) on late charges to 
make the maximum fee a lender could charge for late payments an 
unpublished administrative provision. One respondent indicated that the 
maximum late charge should be available for public comment. This 
section is revised to provide that the late charge cannot exceed the 
late charge as prescribed by either HUD or by Fannie Mae. This will 
allow both HUD and conventional lenders to participate in the program 
making it available to as many borrowers as possible.
    RHCDS proposed to limit the age of the appraisal to not more than 3 
months from the date of submission to RHCDS. Several respondents felt 
this did not allow enough time in some circumstances and proposed a 6 
month time frame. RHCDS agrees and the change is adopted.
    RHCDS had proposed to implement an environmental checklist intended 
to help the Agency determine the need for a site visit for 
environmental reasons. The checklist was to be similar to HUD Form 
54891, ``Appraiser/Review Appraiser Checklist.'' Of the seven comments 
on this subject, only two were favorable. Two respondents advised that 
HUD no longer uses the form in most circumstances (See 58 Fed. Reg. 
41328-41339, August 3, 1993). One respondent reported that they had 
difficulty locating appraisers who were familiar with the form. Another 
respondent had little problem locating several appraisers familiar with 
it. One of the respondents represented an organization of professional 
real estate appraisers. This respondent indicated the proposed form 
would require appraisers to respond to questions which they were not 
trained or qualified to identify. RHCDS has determined it will not 
adopt the use of the HUD form at this time. The Agency plans to review 
this issue further for possible future implementation.
    RHCDS proposed discontinuing the use of replacement cost in 
appraisals of dwellings which are more than a year old. One respondent 
felt that the appraisers should provide the depreciated value of the 
dwelling and the value of the site for determining insurance and site 
values. RHCDS believes that these are loan underwriting issues which 
should be left to the lender. The revisions are adopted as originally 
proposed.
    Several comments were received regarding RHCDS appraisal reviews. 
Since the performance of the appraisal review is an internal matter, 
RHCDS is removing the language from the Federal Register regarding 
appraisal reviews.
    Section 1980.340(c) provides that the ``Lender and borrower are 
responsible for seeing that loan purposes are accomplished and loan 
funds are properly utilized.'' One respondent felt that the Agency is 
holding the borrower responsible for matters that require a high degree 
of technical expertise. RHCDS disagrees. The Government does not 
perform these functions on behalf of the borrower or the lender. 
Lenders and borrowers must take the necessary actions to protect their 
interest.
    One respondent took exception with RHCDS's inspection requirements 
for new and existing dwellings. The respondent indicated that it was 
not typical to obtain inspections beyond that done by or recommended by 
the appraiser. The respondent also complained that RHCDS did not 
provide guidance on minimum qualifications a qualified inspector must 
meet. Some respondents suggested that only a final inspection need be 
obtained for new dwellings along with a certification that the dwelling 
was built according to the plans and specifications and that the 
appraiser address the inspection issue for existing dwellings. RHCDS 
continues to believe it is important to have the dwelling inspected. In 
many instances, the inspection can be performed by the appraiser. The 
Agency expects that lenders will use the same standards that any 
reasonable person would use to obtain an inspection of their own 
dwelling. The regulation is clarified on this point.
    Several respondents expressed interest in the requirements for 
existing dwellings. Section 1980.341(b) made reference to the general 
requirements of the Agency's Guide 2 to subpart A of part 1924. The 
respondents indicated a need for clearer guidance. RHCDS agrees and we 
have revised this section to incorporate the HUD guidelines for 
existing properties. Many residential appraisers and inspectors are 
familiar with the HUD guidelines and this will make it easier for 
lenders to use the program.
    Section 1980.345 provides the eligibility requirements an applicant 
must meet at the time of ``loan approval.'' Program eligibility is 
limited to moderate income households. One respondent questioned 
whether loan approval referred to approval by the lender or RHCDS. This 
is pertinent because an applicant that exceeds the moderate income 
limits is not eligible for the program. The point in time at which 
income is determined could result in different decisions. Another 
respondent suggested using loan closing as a point of reference instead 
of loan approval. RHCDS believes this would cause undue burden to 
borrowers, sellers, and lenders by rendering ineligible loans in which 
considerable processing time and expense has been incurred. It is 
important to note the distinction between RHCDS approval and lender 
approval. The lender approves the loan. RHCDS approves issuance of a 
loan guarantee. The regulation is revised to bring out this distinction 
and approval will clearly reference issuance of the commitment for a 
loan guarantee.
    One respondent suggested that RHCDS adopt the income limits used in 
the Fannie Mae Community Home Buyers Program. The respondent complained 
that it is burdensome to work with income limits that vary by family 
size. Fannie Mae limits are simpler to work with, however, many 
families otherwise eligible would be excluded since the current method 
provides higher limits for larger family sizes. This provision remains 
unchanged.
    One respondent recommended that RHCDS change the ratio term 
``Monthly Obligation to Income (MOTI)'' to ``Total Debt Ratio.'' 
``Total Debt'' is the terminology used in the industry. RHCDS agrees.
    The proposal to consider the cost of job related expenses in the 
total debt ratio generated nine comments. Three respondents opposed the 
addition of this provision. One clearly favored including child care as 
an expense. There were two suggestions for clarification and one 
recommendation for further study of the issue. RHCDS had proposed this 
revision in order to make its program more consistent with other 
Federal program. It has been learned that other agencies are reviewing 
this requirement. Based on its experience with this program to date, 
RHCDS has not had cause to believe its current handling of job related 
expenses has led to losses that otherwise would not have occurred. The 
Agency has opted for further study of the issue.
    Several respondents suggested adding two percent to the qualifying 
ratios for dwellings that meet the 1992 Model Energy Code (CABO 92 
MEC). After careful consideration, the Agency is not adopting this 
change. The reason is that the Agency's thermal standards which were 
already in place meet or exceed the Model Energy Code. Adoption of the 
Model Code standards will not enhance the repayment ability of an RHCDS 
borrower.
    Three respondents suggested the Agency provide guidance on the 
consideration of contingent liabilities. [[Page 26983]] Contingent 
liabilities include debts from a previous marriage and debts assigned 
to the former spouse in a divorce decree. The lack of guidance is 
burdensome and inefficient for borrowers and lenders. RHCDS added this 
guidance.
    Another respondent expressed concern about the difference between 
eligible income and qualifying income. Authorizing legislation limits 
program eligibility to those borrowers with a moderate income. In 
making this determination, RHCDS looks at income that many lenders 
typically would not rely on for repayment ability. We clarified the 
difference between ``eligible'' and ``qualifying'' income. RHCDS uses 
``eligible'' income to determine the borrower's eligibility for the 
program. Eligibility is based on current income. The lender uses 
``qualifying'' income in loan underwriting. ``Qualifying'' income 
provides the basis for repayment ability. For example, income from a 
part time job the applicant has held for less than 6 months is eligible 
income. Unless the applicant has a history of similar income, it may 
not be dependable enough to consider for repayment ability.
    RHCDS had proposed allowing the lender to waive the qualifying 
ratios when there are compensating factors. One respondent suggested 
that this approach could be workable but would require considerable 
RHCDS training and oversight. Another respondent suggested the Agency 
have the lender request an Agency determination for the waiver. Another 
respondent suggested that ``waiver'' of the ratios implies that lenders 
may not have to consider income adequacy. RHCDS agrees with all of 
these comments. We made revisions so the lender may request RHCDS 
concurrence in allowing a higher ratio.
    Several respondents discussed loan underwriting standards for 
credit history. Two respondents disagreed with the RHCDS standard which 
provides that any debt written off by the creditor within the last 36 
months is adverse credit. They argued that sometimes a debt is written 
off by the creditor but the borrower continues to pay. The respondents 
stated this is not adverse credit. RHCDS considers any credit history 
blemish to be adverse credit. There are, however, circumstances in 
which the borrower can reasonably explain adverse credit. When adverse 
credit is beyond the applicant's control, the lender may consider this 
in making a final determination.
    Several respondents alluded to a 36-month ``waiting period'' in the 
case of a bankruptcy. There is no ``waiting period'' in the 
regulations. In fact, RHCDS regulations do not directly address 
bankruptcy as being adverse credit. There is a provision that 
bankruptcy older than 36 months should not be considered in evaluating 
credit history.
    One respondent commented on the eligibility issue of home 
ownership. An applicant that already owns an adequate dwelling is not 
eligible. Sometimes a family moves from one area to another and they 
are unable to sell their former residence. The respondent suggested a 
provision that the applicant could meet the ownership requirement as 
long as he or she does not own a dwelling in the local commuting area. 
We have revised the regulation to incorporate the clarification 
requested.
    Another respondent suggested a revision on the provision for other 
credit. The issue is whether the qualification for another Federal or 
state program would preclude eligibility for the program or not. We 
have revised the regulation to incorporate the clarification requested.
    Several respondents suggested changing the determination of annual 
income to include a 24 month history instead of a 12 month history and 
including straight line depreciation in determining income. Annual and 
adjusted income, by law, have the same meanings given by section 
3(b)(4) and 3(b)(5) of the United States Housing Act of 1937. The 
regulation already provides for the consideration of depreciation as 
allowed by the Internal Revenue Service.
    One respondent pointed out that income from the employment of 
minors is not included in annual income but the regulation calls for 
its use in determining repayment ability. The respondent suggested 
elimination of the provision for counting a minor's income. Although 
the minor cannot be a party to the note, the lender may consider this 
additional household income as a possible compensating factor.
    RHCDS had proposed to reserve the authority to issue commitments 
subject to the availability of funds. RHCDS recognizes the loan making 
process can range from several weeks to several months. RHCDS receives 
no notification of a pending application until the Lender submits a 
request for a loan guarantee. Since RHCDS's funding authority is based 
on annual appropriations, there could be loans in process which the 
Agency cannot fund. RHCDS received eight comments on the proposal to 
issue commitments subject to funding. Seven of these opposed the 
proposal. Several respondents argued that the proposal would represent 
an unacceptable risk to the secondary market and to lenders. One 
respondent stated that commitments without funding would weaken the 
validity of the conditional commitment. Most of the respondents 
suggested an alternative method such as the creation of a register for 
loan applications. This would enable the Agency to track the 
application pipeline and assure lenders of the availability of funds. 
Section 1980.351 implements a funding reservation system.
    Section 1980.353(c) clarifies that the loan must be underwritten by 
the lender before it is submitted to RHCDS. Previous language called 
for lender submission of a feasibility analysis. This change in 
terminology was made based on comments received both from RHCDS 
employees and lenders.
    One respondent suggested that the request for a conditional 
commitment should include copies of the income verifications and the 
purchase agreement or construction contract. We added these to the list 
of required documentation.
    Several respondents made suggestions regarding requirements for 
verification of the borrower's income. One suggestion was to clarify 
that the verification must be valid at that time of issuance of the 
Conditional Commitment. Several respondents suggested that RHCDS permit 
the use of an authorization for release of information instead of the 
borrower signing the verification form directly. This would allow the 
lender to increase their efficiency. Another suggestion encourages the 
use of secondary means of income verification. For example, many 
lenders obtain a copy of the 3 most recent paycheck stubs for employed 
borrowers to compare with the information in the employer verification. 
These suggestions have been adopted.
    There were four comments on lender submission of a copy of the loan 
docket. Each of the respondents asked for an explanation of what a 
``loan docket'' consists of. Two of the respondents suggested that 
RHCDS should already have copies of the information it needs and that 
the requirement may be redundant. One respondent suggested that RHCDS 
should ask only for items which are necessary to determine that the 
closing conditions were met. RHCDS agrees and so revised the 
regulation.
    Two respondents asked that the provision regarding additional loans 
be removed or revised. One respondent stated the prohibition prevents 
the lender from making a home [[Page 26984]] improvement loan but 
leaves other lenders free to make the same loan. RHCDS agrees with the 
respondents and deleted this provision.
    Two comments addressed assumptions and transfers. One respondent 
was concerned that since transfers were permitted but not required, a 
lender might unfairly place a borrower in jeopardy by refusing to 
permit a transfer. The other respondent felt transfers should be 
allowed at market value or for the outstanding debt, whichever is less. 
The same respondent proposed release of liability for the transferor. 
The Housing Act of 1949, as amended, prohibits the release of 
liability. For this reason, RHCDS determined that the loan transfers 
cannot be for less than outstanding debt. Sale of the dwelling without 
assumption of the loan is not prohibited. RHCDS wanted to permit the 
lender the flexibility to use the transfer as a servicing tool if the 
lender determined that was the best course of action. No change is made 
to this section.
    One respondent noted there is nothing in the regulation addressing 
an unapproved transfer. A provision has been added to clarify this.
    One respondent challenged RHCDS because moratoria are not included. 
The respondent referenced section 505 of the Housing Act of 1949, as 
amended. RHCDS notes that the Act authorizes the use of this servicing 
tool but does not require it. RHCDS encourages lenders to ``make every 
effort to assist borrowers who are cooperative and willing to make a 
good faith effort * * *.'' The lender is authorized to make temporary 
revisions to the repayment schedule.
    There were two comments on protective advances. One respondent 
suggested that the $500 threshold was too low. The other respondent 
argued that prior approval may not be appropriate since protective 
advances are by definition of an emergency nature. The respondent 
suggested that RHCDS encourage lenders to obtain prior approval to 
assure the expense is included in the loss claim. This protects RHCDS 
while providing flexibility to the lender.
    One respondent suggested that RHCDS approval of a plan to continue 
with a delinquent borrower may result in delays. These delays could 
forestall successful implementation of the plan. RHCDS agrees with the 
comment and section 1980.374(d)(1) is so revised. However, the Agency 
may reject any plan that does not protect the Government's interest.
    One respondent indicated that it was almost always cost effective 
to accept a Deed-in-lieu rather than foreclose. The respondent 
suggested that RHCDS permit the lender discretion to accept a Deed-in-
Lieu of foreclosure without prior approval. RHCDS agrees and this 
change is adopted.
    Several comments were received on the revised loss payment 
provisions. Three respondents indicated that the time frame for filing 
the loss claim was not long enough. Two respondents suggested 45 
working days is more consistent with industry practice. RHCDS finds a 
45-working day time frame is awkward to work with and allows 9 weeks or 
longer for the lender to process the claim. The other respondent 
indicated that Fannie Mae allows its servicers 30 calendar days to file 
claims for private mortgage insurance. RHCDS believes that 30 calendar 
days is reasonable time to file a claim and this revision is adopted.
    There were two favorable comments on the proposal to allow a 6 
month period for the lender to liquidate acquired property. One 
respondent indicated that the 6 month period was not long enough and 
might encourage a ``fire'' sale to liquidate the property. The 
respondent suggested a 12 month period with a minimum established upset 
sale price. Another respondent questioned the need for a plan for 
disposition of the property. The respondent indicated that the 
preparation of the plan is a burden for both the lender and RHCDS 
without financial benefit. The purpose of the plan is to protect the 
Agency against the possibility of a ``fire'' sale. The respondent 
stated that the regulation is very general as to the content of the 
plan and contains no financial guidance with respect to how much RHCDS 
will allow for various cost items. The respondent also complained that 
there is no indication whether RHCDS will accept aggregate costs in 
excess of the percentage formula allowance currently used. The same 
respondent felt it is not clear when the plan is to be filed. The 
intent of the Agency is to protect itself from unreasonable losses. 
RHCDS does not impose specific cost allowances for various liquidation 
expenses. The Agency looks to see whether the costs claimed by the 
lender are legitimate, necessary, and reasonable for the area. There 
are no allowances for aggregate costs over the percentage formula. 
Examples and details will be available through the lender handbook.
    Two comments related to the date of the RHCDS interest assistance 
payment. The language was adjusted to clarify when the interest 
assistance payment would be made. A proposal to provide for the payment 
on the first of the month instead of the fifteenth was not adopted.
    One respondent suggested that interest assistance should be made 
available as a loss mitigation strategy. We believe the commenter 
intended this as a loan servicing tool to grant interest assistance to 
borrowers who experience decreases in income. Interest assistance funds 
are subject to appropriations. This means that interest assistance can 
be made available only for loans guaranteed from funds with an interest 
assistance appropriation. This comment is not implemented.
    Four comments dealt with Mortgage Credit Certificates and funded 
buy-down accounts. Two respondents suggested the value of a Mortgage 
Credit Certificate should be subtracted from the borrowers obligations 
rather than added to income. The respondents mentioned this is 
consistent with the method used by ``the general lending community.'' 
They argued this would remove a source of confusion for borrowers and 
lenders. RHCDS acknowledges that some conventional lenders have adopted 
this approach. However, the method proposed by RHCDS is consistent with 
other Federal mortgage lending agencies. The income tax credit 
increases disposable income. The tax credit does not reduce the 
borrower's liabilities. No change is made on Mortgage Credit 
Certificates. However, after consideration, RHCDS determined that 
funded buy-down accounts would be implemented; however, RHCDS 
concurrence would be required similar to that concurrence required for 
higher ratios.
    We received two comments on appeals. Both respondents suggested a 
revision to the language so borrowers and lenders could appeal 
separately. One respondent expressed concern that the lender is not 
likely to join the borrower in an appeal. RHCDS's position is that the 
loans are the lender's loans. There is no point in the borrower 
appealing a decision without the lender's willingness to make the loan 
after the appeal. It is not necessary that the lender and borrower each 
fully participate in the appeal process. Only that both parties join in 
requesting the appeal. One respondent implied that the appeal process 
should allow the applicant/borrower to appeal lender decisions. This is 
not consistent with the Agency's position.

List of Subjects in 7 CFR Part 1980

    Home improvement, Loan programs--Housing and community development, 
Mortgage insurance, Mortgages, Rural areas.

    Therefore, Chapter XVIII, Title 7, Code of Federal Regulations is 
amended as follows: [[Page 26985]] 

PART 1980--GENERAL

    1. The authority citation for part 1980 continues to read as 
follows:

    -Authority: 7 U.S.C. 1989, 42 U.S.C. 1480, 5 U.S.C. 301, 7 CFR 
2.23, 7 CFR 2.70.

    2. Subpart D of part 1980 is revised to read as follows:

Subpart D--Rural Housing Loans

Sec.
1980.301  Introduction.
1980.302  Definitions and abbreviations.
1980.303-1980.307  [Reserved]
1980.308  Full faith and credit.
1980.309  Lender participation in guaranteed RH loans.
1980.310  Loan purposes.
1980.311  Loan limitations and special provisions.
1980.312  Rural area designation.
1980.313  Site and building requirements.
1980.314  Loans on leasehold interests.
1980.315  Escrow accounts for exterior development
1980.316  Environmental requirements.
1980.317  Equal opportunity and nondiscrimination requirements in 
use, occupancy, rental, or sale of housing.
1980.318  Flood and mudslide hazard area precautions.
1980.319  Other Federal, State, and local requirements.
1980.320  Interest rate.
1980.321  Terms of loan repayment.
1980.322  Loan guarantee limits.
1980.323  Guarantee fee.
1980.324  Charges and fees by Lender.
1980.325  Transactions which will not be guaranteed.
1980.326-1980.329  [Reserved]
1980.330  Applicant equity requirements.
1980.331  Collateral.
1980.332  [Reserved]
1980.333  Promissory notes and security instruments.
1980.334  Appraisal of property serving as collateral.
1980.335-1980.339  [Reserved]
1980.340  Acquisition, construction, and development.
1980.341  Inspections of construction and compliance reviews.
1980.342-1980.344  [Reserved]
1980.345  Applicant eligibility requirements for a guaranteed loan.
1980.346  Other eligibility criteria.
1980.347  Annual income.
1980.348  Adjusted annual income.
1980.349-1980.350  [Reserved]
1980.351  Requests for reservation of funds.
1980.352  [Reserved]
1980.353  Filing and processing applications.
1980.354  [Reserved]
1980.355  Review of requirements.
1980.356-1980.359  [Reserved]
1980.360  Conditions precedent to issuance of the loan note 
guarantee.
1980.361  Issuance of loan note guarantee.
1980.362  [Reserved]
1980.363  Review of loan closing.
1980.364-1980.365  [Reserved]
1980.366  Transfer and assumption.
1980.367  Unauthorized sale or transfer of the property.
1980.368-1980.369  [Reserved]
1980.370  Loan servicing.
1980.371  Defaults by the borrower.
1980.372  Protective advances.
1980.373  [Reserved]
1980.374  Liquidation.
1980.375  Reinstatement of the borrower's account.
1980.376  Loss payments.
1980.377  Future recovery.
1980.378-1980.389  [Reserved]
1980.390  Interest assistance.
1980.391  Equity sharing.
1980.392  Mortgage Credit Certificates (MCCs) and Funded Buydown 
Accounts.
1980.393-1980.396  [Reserved]
1980.397  Exception authority.
1980.398  Unauthorized assistance and other deficiencies.
1980.399  Appeals.
1980.400  [Reserved]

Subpart D--Rural Housing Loans


Sec. 1980.301  Introduction.
    (a) Policy. This subpart contains regulations for single family 
Rural Housing (RH) loan guarantees by the Rural Housing and Community 
Development Service (RHCDS) and applies to lenders, borrowers, and 
other parties involved in making, guaranteeing, servicing, holding or 
liquidating such loans. Any processing or servicing activity conducted 
pursuant to this subpart involving authorized assistance to RHCDS 
employees, members of their families, known close relatives, or 
business or close personal associates is subject to the provisions of 
subpart D of part 1900. Applicants for this assistance are required to 
identify any known relationship or association with an RHCDS employee.
    (b) Program objective. The basic objective of the guaranteed RH 
loan program is to assist eligible households in obtaining adequate but 
modest, decent, safe, and sanitary dwellings and related facilities for 
their own use in rural areas by guaranteeing sound RH loans which 
otherwise would not be made without a guarantee. Guarantees issued 
under this subpart are limited to loans to applicants with incomes that 
do not exceed income limits as provided in exhibit C of FmHA 
Instruction 1980-D (available in any RHCDS office).
    (c) [Reserved]
    (d) Nondiscrimination. Loan guarantees and services provided under 
this subpart are subject to various civil rights statutes. Assistance 
shall not be denied to any person or applicant based on race, sex, 
national origin, color, familial status, religion, age, or physical or 
mental disability (the applicant must possess the capacity to enter 
into a legal contract for services). The Consumer Protection Act 
provides that the applicant may not be denied assistance based on 
receipt of income from public assistance or because the applicant has, 
in good faith, exercised any right provided under the Act.


Sec. 1980.302  Definitions and abbreviations.

    (a) The following definitions are applicable to RH loans:
    Agency: Rural Housing and Community Development Service (RHCDS).
    Applicant. The party applying to a Lender for a loan.
    Approval official. An RHCDS employee with delegated loan approval 
authority under subpart A of part 1901 consistent with the amount and 
type of loan considered.
    Borrower. Collectively, all parties who applied for and received a 
specific guaranteed loan from an eligible Lender.
    Coapplicant. An adult member of the household who joins the 
applicant in applying to a lender for a loan.
    Conditional commitment. RHCDS's notice to the Lender that the 
material it has submitted is approved subject to the completion of all 
conditions and requirements set forth in the notice.
    Development standard. The current edition of any of the model 
building, plumbing, mechanical, and electrical codes listed in exhibit 
E to subpart A of part 1924 applicable to single family residential 
construction or other similar codes adopted by RHCDS for use in the 
state.
    Disabled person. A person who is unable to engage in any 
substantially gainful activity by reason of any medically determinable 
physical or mental impairment expected to result in death or which has 
lasted or is expected to last for a continuous period of not less than 
12 months. The disability is expected to be of long or indefinite 
duration; substantially impede the person's ability to live 
independently; and is of such a nature that the person's ability to 
live independently could be improved by more suitable housing 
conditions. In the case of an individual who has attained the age of 55 
and is blind, disability is defined as inability by reason of such 
blindness to engage in substantially gainful activity requiring skills 
or abilities comparable to those of any gainful activity in which the 
individual has previously engaged with some regularity over a 
substantial period of time. Receipt of veteran's benefits for 
disability, whether service-oriented or otherwise, does not 
automatically establish disability. A disabled person also includes a 
person with a developmental disability. A developmental disability 
means a severe, chronic disability of a person which: [[Page 26986]] 
    (1) Is attributable to a mental or physical impairment or a 
combination of mental and physical impairments;
    (2) Is manifested before the person attains age 22;
    (3) Is likely to continue indefinitely;
    (4) Results in substantial functional limitations in one or more of 
the following areas of major life activity:
    (i) Self-care,
    (ii) Receptive and expressive language,
    (iii) Learning,
    (iv) Mobility,
    (v) Self-direction,
    (vi) Capacity for independent living, and
    (vii) Economic self-sufficiency; and
    (5) Reflects the person's need for a combination and sequence of 
special care, treatment, or other services which are of lifelong or 
extended duration and are individually planned and coordinated.
    Displaced homemaker. An individual who is an adult; has not worked 
full-time full-year (2,080 hours) in the labor force for a number of 
years but has during such years worked primarily without remuneration 
to care for the home and family; and is unemployed or underemployed and 
is experiencing difficulty in obtaining or upgrading employment.
    Elderly family. An elderly family consists of one of the following:
    (1) A person who is the head, spouse, or sole member of a household 
and who is 62 years of age or older, or who is disabled and is the 
applicant/borrower or the coapplicant/coborrower; or
    (2) Two or more unrelated elderly (age 62 or older), disabled 
persons who are living together, at least one of whom is the applicant/
borrower or coapplicant/coborrower; or
    (3) In the case of a family where a deceased borrower/coborrower or 
spouse was at least 62 years old or disabled, the surviving household 
members shall continue to be classified as an ``elderly family'' for 
the purpose of determining adjusted income even though the surviving 
members may not meet the definition of elderly family on their own, 
provided:
    (i) They occupied the dwelling with the deceased family member at 
the time of his/her death; and
    (ii) If one of the surviving members is the spouse of the deceased 
family member, the surviving family shall be classified as an elderly 
family only until the remarriage of the surviving spouse; and
    (iii) At the time of death, the dwelling of the deceased family 
member was financed under title V of the Housing Act of 1949, as 
amended.
    Eligible lender. A Lender meeting the criteria outlined in 
Sec. 1980.309 who has requested and received RHCDS approval for 
participation in the program.
    Existing dwelling. A dwelling which has been completed for more 
than 1 year as evidenced by an occupancy permit or a similar document.
    Extended family. A family unit comprised of adult relatives who 
live together with the other members of the household, for reasons of 
physical dependency, economics, and/or social custom, who, under other 
circumstances, could maintain separate households. A typical example is 
parents living with their adult children.
    Federal National Mortgage Association (Fannie Mae) rate. The rate 
authorized in exhibit B of FmHA Instruction 440.1 (available in any 
RHCDS office).
    Finance Office. The office which maintains RHCDS's financial 
records.
    First-time homebuyer. Any individual who (and whose spouse) has had 
no present ownership in a principal residence during the 3 year period 
ending on the date of purchase of the property acquired with a 
guaranteed loan under this subpart. A first-time homebuyer includes 
displaced homemakers and single parents even though they might have 
owned, or resided in, a dwelling with a spouse. This definition is used 
to determine RHCDS processing priority in accordance with 
Sec. 1980.353.
    Guaranteed loan. A loan made, held, and serviced by a Lender for 
which RHCDS has entered into an agreement with the Lender in accordance 
with this subpart.
    Household or family. The applicant, coapplicant, and all other 
persons who will make the applicant's dwelling their primary residence 
for all or part of the next 12 months. The temporary absence of a child 
from the home due to placement in foster care shall not be taken into 
account in considering family composition and size. Foster children 
placed in the borrower's home and live-in aides shall not be counted as 
members of the household.
    Interest assistance. Loan assistance payments made by RHCDS to the 
Lender on behalf of the borrower.
    Lender. The organization making, holding, and/or servicing the loan 
which is guaranteed under the provisions of this subpart. The Lender is 
also the party requesting the guarantee. The Lender includes an entity 
purchasing an RHCDS guaranteed loan. A purchasing Lender acquires all 
the privileges, duties, and responsibilities of the originating Lender. 
The Lender is primarily responsible for originating, underwriting, 
servicing, and, where necessary, liquidating the loan and disposing of 
the property in a manner consistent with maximizing the Government's 
interest.
    Lender agreement. The signed master agreement between RHCDS and the 
Lender setting forth the Lender's loan responsibilities for loan 
processing and servicing guaranteed RH loans.
    Lender record change. The Lender's notice to RHCDS of a change of 
Lender or a change of servicer.
    Liquidation. Liquidation of the loan occurs when the Lender 
acquires title to the security, a third party buys the property at the 
foreclosure sale, or the borrower sells the property to a third party 
in order to avoid or cure a default situation with the prior approval 
of the Lender and RHCDS. In states providing a redemption period, the 
Lender does not typically acquire title until after expiration of the 
redemption period.
    Liquidation expense. The Lender's cost of liquidation including 
those costs that do not qualify as a protective advance.
    Loan note guarantee. The signed commitment issued by RHCDS setting 
forth the terms and conditions of the guarantee.
    Manufactured home. A structure built to the Federal Manufactured 
Home Construction and Safety Standards and RHCDS thermal requirements.
    Master interest assistance agreement. The agreement among RHCDS, 
the borrower, and the Lender which provides the basis for payment of 
interest assistance and shared equity.
    Minor. A person under 18 years of age. Neither the applicant, 
coapplicant, or spouse may be counted as a minor. Foster children 
placed in the borrower's home are not counted as minors for the purpose 
of determination of annual or adjusted income.
    Net family assets. Include:
    (1) The value of equity in real property, savings, individual 
retirement accounts (IRA), demand deposits, and the market value of 
stocks, bonds, and other forms of capital investments, but exclude:
    (i) Interests in Indian Trust land,
    (ii) The value of the dwelling and a minimum adequate site,
    (iii) Cash on hand which will be used to reduce the amount of the 
loan,
    (iv) The value of necessary items of personal property such as 
furniture and automobiles and the debts against them,
    (v) The assets that are a part of the business, trade, or farming 
operation in the case of any member of the household who is actively 
engaged in such operation, and
    (vi) The value of a trust fund that has been established and the 
trust is not [[Page 26987]] revocable by, or under the control of, any 
member of the household, so long as the funds continue to be held in 
trust.
    (2) The value of any business or household assets disposed of by a 
member of the household for less than fair market value (including 
disposition in trust, but not in a foreclosure or bankruptcy sale) 
during the 2 years preceding the date of application, in excess of the 
consideration received therefore. In the case of a disposition as part 
of a separation or divorce settlement, the disposition shall not be 
considered to be less than fair market value if the household member 
receives important consideration not measurable in dollar terms.
    Net proceeds. The proceeds remaining from the property after it is 
sold or its net value as determined in accordance with this subpart. 
The determination of net proceeds depends upon whether the property is 
sold or acquired by the Lender. Net proceeds may be determined using 
the appraised value and subtracting authorized deductions when the 
Lender acquires the property.
    Protective advance. Advances made by the Lender when the borrower 
is in liquidation or otherwise in default to protect or preserve the 
security from loss or destruction.
    Qualifying income. The amount of the applicant's income which the 
lender determines is adequate and dependable enough to consider for 
repayment ability. This figure may be different from the adjusted 
income which is used for RHCDS program eligibility. Qualifying income 
is typically less than adjusted income unless the applicant has income 
from the sources listed in Sec. 1980.347(e).
    Rural area. An area meeting the requirements of Sec. 1980.312. 
Rural areas are designated on maps available in the RHCDS office 
servicing that area.
    Single parent. An individual who is unmarried or legally separated 
from a spouse and has custody or joint custody of one or more minor 
children or is pregnant.
    State Director. Director of RHCDS programs within a state office 
area.
    Veteran. A veteran is a person who has been discharged or released 
from the active forces of the United States Army, Navy, Air Force, 
Marine Corps, or Coast Guard under conditions other than dishonorable 
discharge including ``clemency discharges'' and who served on active 
duty in such forces:
    (1) From April 6, 1917, through March 31, 1921;
    (2) From December 7, 1941, through December 31, 1946;
    (3) From June 27, 1950, through January 31, 1955; or
    (4) For more than 180 days, any part of which occurred after 
January 31, 1955, but on or before May 7, 1975.
    (b) The following abbreviations are applicable to this subpart:
    Fannie Mae--Federal National Mortgage Association.
    FCS--Farm Credit Service.
    FHA--Federal Housing Administration.
    Freddie Mac--Federal Home Loan Mortgage Corporation.
    Ginnie Mae--Government National Mortgage Association.
    HUD--Department of Housing and Urban Development.
    IRS--Internal Revenue Service.
    MCCs--Mortgage Credit Certificates.
    PITI--Principal, Interest, Taxes, and Insurance.
    RHCDS--Rural Housing and Community Development Service.
    URAR--Uniform Residential Appraisal Report.
    VA--Department of Veterans Affairs.


Secs. 1980.303-1980.307  [Reserved]


Sec. 1980.308  Full faith and credit.

    The loan note guarantee constitutes an obligation supported by the 
full faith and credit of the United States and is incontestable except 
for fraud or misrepresentation of which the Lender has actual knowledge 
at the time it becomes such Lender or which the Lender participates in 
or condones. Misrepresentation includes negligent misrepresentation. A 
note which provides for the payment of interest on interest shall not 
be guaranteed. Any guarantee or assignment of a guarantee attached to 
or relating to a note which provides for the payment of interest on 
interest is void. Notwithstanding the prohibition of interest on 
interest, interest may be capitalized in connection with reamortization 
over the remaining term with written concurrence of RHCDS. The loan 
note guarantee will be unenforceable to the extent any loss is 
occasioned by violation of usury laws, negligent servicing, or failure 
to obtain the required security regardless of the time at which RHCDS 
acquires knowledge of the foregoing. Negligent servicing is defined as 
servicing that is inconsistent with this subpart and includes the 
failure to perform those services which a reasonably prudent Lender 
would perform in servicing its own loan portfolio of loans that are not 
guaranteed. The term includes not only the concept of a failure to act, 
but also not acting in a timely manner or acting contrary to the manner 
in which a reasonably prudent Lender would act up to the time of loan 
maturity or until a final loss is paid. Any losses occasioned will be 
unenforceable to the extent that loan funds are used for purposes other 
than those authorized in this subpart. When the Lender conducts 
liquidation in an expeditious manner, in accordance with the provisions 
of Sec. 1980.374, the loan note guarantee shall cover interest until 
the claim is paid within the limit of the guarantee.


Sec. 1980.309  Lender participation in guaranteed RH loans.

    (a) Qualification. The following Lenders are eligible to 
participate in the RHCDS guaranteed RH loan program upon presentation 
of evidence of said approval and execution of the RHCDS Lender 
Agreement.
    (1) Any state housing agency;
    (2) Any Lender approved by HUD as a supervised or nonsupervised 
mortgagee for submission of one to four family housing applications for 
Federal Housing Mortgage Insurance or as an issuer of Ginnie Mae 
mortgage backed securities;
    (3) Any Lender approved as a supervised or nonsupervised mortgagee 
for the VA;
    (4) Any Lender approved by Fannie Mae for participation in one to 
four family mortgage loans;
    (5) Any Lender approved by Freddie Mac for participation in one to 
four family mortgage loans;
    (6) An FCS institution with direct lending authority; and
    (7) Any Lender participating in other RHCDS, Rural Business and 
Cooperative Development Service, Rural Utilities Service, and/or 
Consolidated Farm Service Agency guaranteed loan programs.
    (b) Lender approval. A Lender listed in paragraph (a) of this 
section must request a determination of eligibility in order to 
participate as an originating Lender in the program. Requests may be 
made to the state office serving the state jurisdiction or to the 
National office when multiple state jurisdictions are involved.
    (1) The Lender must provide the following information to RHCDS:
    (i) Evidence of approval, as appropriate, for the criteria under 
paragraph (a) of this section, which the Lender meets.
    (ii) The Lender's Tax Identification Number.
    (iii) The name of an official of the Lender who will serve as a 
contact for RHCDS regarding the Lender's guaranteed loans.
    (iv) A list of names, titles, and responsibilities of the Lender's 
principal officers.
    (v) An outline of the Lender's internal loan criteria for issues of 
credit history [[Page 26988]] and repayment ability and a copy of the 
Lender's quality control plan for monitoring production and servicing 
activities.
    (vi) An executed certification regarding debarment, suspension, or 
other matters--primary covered transactions. The certification will be 
obtained using a form prescribed by RHCDS.
    (2) The Lender must agree to:
    (i) Obtain and keep itself informed of all program regulations and 
guidelines including all amendments and revisions of program 
requirements and policies.
    (ii) Process and service RHCDS guaranteed loans in accordance with 
Agency regulations.
    (iii) Permit RHCDS employees or its designated representatives to 
examine or audit all records and accounts related to any RHCDS loan 
guarantee.
    (iv) Be responsible for the servicing of the loan, or if the loan 
is to be sold, sell only to an entity which meets the provisions of 
paragraph (a) of this section.
    (v) Use forms which have been approved by FHA, Fannie Mae, Freddie 
Mac, or, for FCS Lenders, use the appropriate FCS forms.
    (vi) Maintain its approval if qualification as an RHCDS Lender was 
based on approval by HUD, VA, Fannie Mae, or Freddie Mac including 
maintaining the minimum allowable net capital, acceptable levels of 
liquidity, and any required fidelity bonding and/or mortgage servicing 
errors and omissions policies required by HUD, VA, Fannie Mae, or 
Freddie Mac, as appropriate.
    (vii) Operate its facilities in a prudent and business-like manner.
    (viii) Assure that its staff is well trained and experienced in 
loan origination and/or loan servicing functions, as necessary, to 
assure the capability of performing all of the necessary origination 
and servicing functions.
    (ix) Notify RHCDS in writing if the Lender:
    (A) Ceases to meet any financial requirements of the entity under 
which the Lender qualified for RHCDS eligibility;
    (B) Becomes insolvent;
    (C) Has filed for bankruptcy protection, has been forced into 
involuntary bankruptcy, or has requested an assignment for the benefit 
of creditors;
    (D) Has taken any action to cease operations or discontinue 
servicing or liquidating any or all of its portfolio of RHCDS 
guaranteed loans;
    (E) Has any change in the Lender name, location, address, or 
corporate structure;
    (F) Has become delinquent on any Federal debt or has been debarred, 
suspended, or sanctioned by any Federal agency or in accordance with 
any applicable state licensing or certification requirements.
    (c) [Reserved]
    (d) Handling applications for Lender eligibility. Upon 
determination of a Lender's eligibility to originate loans, RHCDS and 
the Lender will execute the RHCDS Lender Agreement. The Lender 
Agreement establishes the Lender's authorization for participation in 
the program as an originator, servicer, or holder of RHCDS single 
family mortgage loans. The Lender Agreement shall be in effect until 
terminated by either the Agency or the Lender in accordance with the 
terms of the Lender Agreement and this subpart.
    (e) Lender sale of guaranteed loans. Loans guaranteed under this 
subpart may be sold only to entities which meet the qualifications in 
paragraphs (a) and (b) of this section or directly to Fannie Mae or 
Freddie Mac. Such entities are referred to as a Lender and are to be 
treated as a Lender for all purposes under this subpart. The selling 
Lender shall provide the original loan note guarantee to the purchasing 
Lender. The selling Lender is responsible for reporting the sale of any 
loan to RHCDS within 30 days using a reporting form provided by RHCDS. 
The purchasing Lender must execute a Lender Agreement or have a valid 
Lender Agreement on file with RHCDS. The purchasing Lender shall 
succeed to all rights, title, and interest of the Lender under the loan 
note guarantee. Any necessary or convenient assignments or other 
instruments relating to the loan and any other actions necessary or 
convenient to perfect or record such transaction are the responsibility 
of the purchasing Lender. The purchasing Lender assumes the obligations 
of, and will be bound by and will comply with, all covenants, 
agreements, terms, and conditions contained in any note, security 
instrument, loan note guarantee, and of any outstanding agreements in 
connection with such loan purchased. The purchasing Lender shall be 
subject to any defenses, claims, or setoffs that RHCDS would have 
against the Lender if the Lender had continued to hold the loan.
    (f) Lender responsibility. The Lender will be responsible for the 
processing, servicing, and liquidation (if necessary) of the loan. The 
Lender may use agents, correspondents, branches, financial experts, or 
other #institutions in carrying out its responsibilities. Lenders are 
fully responsible for their own actions and the actions of those acting 
on the Lender's behalf.
    (1) Processing. The Lender must abide by limitations on loan 
purposes, loan limitations, interest rates, and terms set forth in this 
subpart. The Lender will obtain, complete, and submit to RHCDS the 
items required in Sec. 1980.353(c). The Lender may utilize the services 
of a non-RHCDS approved lender for originating residential loans. The 
RHCDS approved lender is responsible for the loan underwriting and for 
obtaining the RHCDS conditional commitment. The agent may close the 
loan in its name provided the loan is immediately transferred to the 
approved lender to whom the guarantee will be issued.
    (2) Servicing. Lenders are fully responsible for servicing and 
protecting the security for all guaranteed loans. When servicing is 
carried out by a third party, the Lender will inform RHCDS of the name 
and address of the servicer.
    (3) Liquidation. The Lender will complete any liquidation of loans 
guaranteed under the provisions of the Lender Agreement. Loss claims 
will be submitted on the RHCDS Loss Report form. The loss report will 
be accompanied by supporting information to outline disposition of all 
security pledged to secure the loan. The Lender shall also effect 
collection of the debt from other assets of the borrower to the extent 
practicable.
    (4) Counseling. Lenders are encouraged to offer or provide for home 
ownership counseling. Lenders may require first-time homebuyers to 
undergo such counseling if it is reasonably available in the local 
area. When home ownership counseling is provided or sponsored by RHCDS 
or another Federal agency in the local area, the Lender must require 
the borrower to successfully complete the course.
    (g) Monitoring a Lender's processing and servicing of loans. If 
RHCDS determines that the Lender is not fulfilling the obligations of 
the Lender Agreement or that the Lender fails to maintain the required 
criteria, the Lender will be notified in writing of the deficiencies 
and allowed a maximum of 30 days to correct them. If the Lender fails 
to make the required corrections, RHCDS will proceed as provided in 
paragraph (h) of this section.
    (1) Loan processing review for new Lenders. RHCDS may review loans 
developed by an eligible Lender to assure compliance with, and 
understanding of, Agency regulations.
    (2) [Reserved]
    (3) [Reserved]
    (h) Termination of Lender eligibility. The Lender remains eligible 
as long as the Lender meets the criteria in [[Page 26989]] paragraph 
(a) of this section unless that Lender's status is revoked by RHCDS or 
by another Federal agency. RHCDS shall revoke the eligible Lender 
status of any Lender who fails to comply with requirements of paragraph 
(b) or (e) of this section. Status may also be revoked if the Lender 
violates the terms of the Lender Agreement, fails to properly service 
any guaranteed loan, or fails to adequately protect the interests of 
the Lender and the Government. If the Lender is determined to be no 
longer eligible, the Lender will continue to service any outstanding 
loans guaranteed under this subpart which are held by the Lender or 
RHCDS may require the Lender to transfer the servicing of the loan. In 
addition to revocation of eligible Lender status, the Lender may be 
debarred by RHCDS.


Sec. 1980.310  Loan purposes.

    The purpose of a loan guaranteed under this subpart must be to 
acquire a completed dwelling and related facilities to be used by the 
applicant as a primary residence. The loan may be to purchase a new 
dwelling or an existing dwelling. The guaranteed loan may be for ``take 
out'' financing for a loan to construct a new dwelling or improve an 
existing dwelling when the construction financing is arranged in 
connection with the loan package. The loan may include funds for the 
purchase and installation of necessary appliances, energy saving 
measures, and storm cellars. Incidental expenses for tax monitoring 
services, architectural, appraisal, survey, environmental, and other 
technical services may be included. Subject to Sec. 1980.311, eligible 
loan purposes also include:
    (a) Necessary related facilities such as a garage, storage shed, 
walks, driveway, and water and/or sewage facilities including 
reasonable connection fees for utilities which the buyer is required to 
pay.
    (b) Special design features or equipment necessary to accommodate a 
physically disabled member of the household.
    (c) The cost of establishing an escrow account for real estate 
taxes and/or insurance premiums.
    (d) Title clearance, title insurance, and loan closing; stock in a 
cooperative lending agency necessary to obtain the loan; and, for low-
income applicants only, loan discount points to reduce the note 
interest rate from the rate authorized in Sec. 1980.320 not exceeding 
the amount typical for the area.
    (e) Provide funds for seller equity and/or essential repairs when 
an existing guaranteed loan is to be assumed simultaneously.


Sec. 1980.311  Loan limitations and special provisions.

    (a) Prohibited loan purposes. Conditional commitments will not be 
issued if loan funds are to be used for:
    (1) Payment of construction draws.
    (2) The purchase of furniture or other personal property except for 
essential equipment and materials authorized in accordance with 
Sec. 1980.310.
    (3) Refinancing RHCDS debts, debts owed the Lender (other than 
construction/development, financing incurred in conjunction with the 
proposed loan), or debts on a manufactured home.
    (4) Purchase or improvement of income-producing land, or buildings 
to be used principally for income-producing purposes, or buildings not 
essential for RH purposes, or to buy or build buildings which are 
largely or in part specifically designed to accommodate a business or 
income-producing enterprise.
    (5) Payment of fees, charges, or commissions, such as finder's fees 
for packaging the applications or placement fees for the referral of a 
prospective applicant to RHCDS.
    (6) Improving the entry of a homestead entryman or desert entryman 
prior to receipt of patent.
    (7) Purchase a dwelling with an in-ground swimming pool.
    (b) Limitations. The principal purpose of the loan, except for a 
subsequent loan to an existing borrower, must be to buy or build a 
dwelling. The loan may include additional funds in accordance with 
Sec. 1980.310. The amount of the loan may not exceed the maximum dollar 
limitation of section 203(b)(2) of the National Housing Act (12 U.S.C. 
1702).
    (1) A loan for the acquisition of a newly constructed dwelling that 
meets the requirements of Sec. 1980.341(b) of this subpart may be made 
for up to 100 percent of the appraised value or the cost of acquisition 
and any necessary development including those purposes in 
Sec. 1980.310, whichever is less.
    (2) A loan for the acquisition of an existing dwelling and 
development, if any, in conjunction with the acquisition of an existing 
dwelling may be made for up to 100 percent of the appraised value or 
the cost of acquisition and necessary development including those 
purposes in Sec. 1980.310, whichever is less.
    (3) A loan for the acquisition of a newly constructed dwelling (a 
dwelling that does not meet the definition for an existing dwelling) 
that does not meet the requirements of Sec. 1980.341(b) is limited to 
90 percent of the present market value.
    (c) Subdivisions. Housing units may be financed in existing 
subdivisions approved by local, regional, state, or Federal government 
agencies before issuance of a conditional commitment. The subdivision 
must meet the requirements of Sec. 1901.203. An existing subdivision is 
one in which the local government has accepted the subdivision plan, 
its principal developments and right-of-ways, the construction of 
streets, water and water/waste disposal systems, and utilities; is at a 
point which precludes any major changes; and provisions are in place 
for continuous maintenance of the streets and the water and water/waste 
disposal systems. A dwelling served by a homeowners association (HOA) 
may be accepted when the project has been approved or accepted by HUD, 
VA, Fannie Mae, or Freddie Mac.


Sec. 1980.312  Rural area designation.

    A rural area is an area which is identified as rural by RHCDS in 
accordance with Sec. 1944.10. Current county maps showing ineligible 
areas are available in RHCDS field offices.


Sec. 1980.313  Site and building requirements.

    (a) Rural area. The property on which the loan is made must be 
located in a designated rural area as identified in Sec. 1980.312. A 
nonfarm tract to be purchased or improved with loan funds must not be 
closely associated with farm service buildings.
    (b) Access. The property must be contiguous to and have direct 
access from a street, road, or driveway. Streets and roads must be hard 
surface or all-weather surface.
    (c) Water and water/waste disposal system. A nonfarm tract on which 
a loan is to be made must have an adequate water and water/waste 
disposal system and other related facilities. Water and water/waste 
disposal systems serving the site must be approved by a state or local 
government agency. When the site is served by a privately owned and 
centrally operated water and water/waste disposal system, the system 
must meet the design requirements of the State Department of Health or 
comparable reviewing and regulatory agency. Written verification must 
be obtained from the regulatory agency that the private water and 
water/waste system complies with the Safe Drinking Water Act (42 U.S.C. 
300F et seq.), and the Clean Water Act (33 U.S.C. 1251 et seq.), 
respectively. A system owned and/or operated by a private party must 
have a binding agreement which allows interested third parties, such as 
the Lender, to enforce the obligation of the operator to provide 
satisfactory service at reasonable rates.
    (d) [Reserved] [[Page 26990]] 
    (e) Modest house. Dwellings financed must provide decent, safe, and 
sanitary housing and be modest in cost. A dwelling that can be 
purchased with a loan not exceeding the maximum dollar limitation of 
section 203(b)(2) of the National Housing Act (12 U.S.C. 1702) is 
considered modest. Generally, the value of the site must not exceed 30 
percent of the total value of the property. When the value of the site 
is typical for the area, as evidenced by the appraisal, and the site 
cannot be subdivided into two or more sites, the 30 percent limitation 
may be exceeded.
    (f) Thermal standards. Dwellings financed shall meet the standards 
outlined in exhibit D of subpart A of part 1924 except for an existing 
dwelling, if documentation is provided to establish that the actual 
cost of heating and cooling is not significantly greater than those 
costs for a dwelling that meets RHCDS's thermal standards. If the 
dwelling is excepted, only the perimeter of the house at the band beam 
and the heat ducts in unheated basements or crawlspace must be 
insulated.
    (g) Existing dwelling. An existing dwelling financed must be cost 
effective to the applicant including reasonable costs of utilities and 
maintenance for the area. Loan guarantees may be made on an existing 
manufactured home when it meets the provisions of paragraph (i)(2)(i) 
of this section.
    (h) Repairs. Any dwelling financed with an RHCDS guarantee must be 
structurally sound, functionally adequate, and placed in good repair 
prior to issuance of the Loan Note Guarantee except as provided in 
Sec. 1980.315.
    (i) Manufactured homes. New units that meet the requirements of 
exhibit J of subpart A of part 1924 and purchased through RHCDS 
approved dealer-contractors may be considered for a guaranteed loan 
under this subpart. The Lender may obtain a list of RHCDS approved 
models and dealer-contractors from any RHCDS office in the area served.
    (1) Loans may be guaranteed for the following purposes when the 
security covers both the unit and the lot:
    (i) A new unit and related site development work on a site owned or 
purchased by the applicant which meets the requirements and limitations 
of this section or a leasehold meeting the provisions of Sec. 1980.314.
    (ii) Transportation and set-up costs for a new unit.
    (2) Loans may not be guaranteed for:
    (i) An existing unit and site unless it is already financed with a 
Section 502 RH direct or guaranteed loan, is being sold from RHCDS 
inventory, or is being sold from the Lender's inventory provided the 
Lender acquired possession of the unit through a loan guaranteed under 
this subpart.
    (ii) The purchase of a site without also financing the unit.
    (iii) Existing debts owed by the applicant/borrower.
    (iv) A unit without an affixed certification label indicating the 
unit was constructed in accordance with the Federal Manufactured Home 
Construction and Safety Standards.
    (v) Alteration or remodeling of the unit when the initial loan is 
made.
    (vi) Furniture, including movable articles of personal property 
such as drapes, beds, bedding, chairs, sofas, lamps, tables, 
televisions, radios, stereo sets, and similar items. Items such as 
wall-to-wall carpeting, refrigerators, ovens, ranges, clothes washers 
or dryers, heating or cooling equipment, or similar items may be 
financed.
    (vii) Any unit not constructed to the RHCDS thermal standards as 
identified by an affixed label for the winter degree day zone where the 
unit will be located.


Sec. 1980.314  Loans on leasehold interests.

    A loan may be guaranteed if made on a leasehold owned or being 
acquired by the applicant when the Lender determines that long-term 
leasing of homesites is a well established practice and such leaseholds 
are freely marketable in the area provided the Lender determines and 
certifies to RHCDS that:
    (a) Unable to obtain fee title. The applicant is unable to obtain 
fee title to the property.
    (b) Unexpired term. The lease has an unexpired term (term plus 
option to renew) of at least 40 years from the date of approval.


Sec. 1980.315  Escrow accounts for exterior development.

    When proposed exterior development work cannot be completed because 
of weather and the work remaining to be done does not affect the 
livability of the dwelling, an escrow account for exterior development 
only may be established by the originating lender if the following 
conditions are met:
    (a) A signed contract and bid schedule is in effect for the 
proposed exterior development work.
    (b) The contract for development work must provide for completion 
within 120 days.
    (c) The Lender agrees to obtain a final inspection report and 
advise RHCDS when the work has been completed.
    (d) The escrow account must be funded in an amount sufficient to 
assure the completion of the remaining work. This figure should be 150 
percent of the cost of completion but may be higher if the Lender 
determines a higher amount is needed.


Sec. 1980.316  Environmental requirements.

    The requirements of subpart G of part 1940 apply to loan guarantees 
made under this subpart. Lenders and applicants must cooperate with 
RHCDS in the completion of these requirements. Lenders must become 
familiar with these requirements so that they can advise applicants and 
reduce the probability of unacceptable applications being submitted to 
RHCDS. RHCDS may require that Lenders and/or applicants obtain 
information for completing environmental assessments when necessary. 
The RHCDS approval official will utilize adequate, reliable information 
in completion of environmental review. Sources of information include, 
but are not limited to, the State Natural Resource Management Guide 
(available in any RHCDS office) and, as necessary, the technical 
expertise available within the Agency as well as other agencies and 
organizations to assist in the completion of the environmental review.
Sec. 1980.317  Equal opportunity and nondiscrimination requirements in 
use, occupancy, rental, or sale of housing.

    (a) Compliance. Loans guaranteed under this subpart are subject to 
the provisions of various civil rights statutes. RHCDS and the Lender 
may not discriminate against any person in making guaranteed housing 
loans available, or impose different terms and conditions for the 
availability of these loans based on a person's race, color, familial 
status, religion, sex, age, physical or mental disability, or national 
origin, provided the applicant possesses the capacity to enter into a 
legal contract for services. These requirements will be discussed with 
the applicant, builder, developer, and other parties involved as early 
in the negotiations as possible.
    (b) Reporting. If there is indication of noncompliance with these 
requirements, the matter will be reported by the borrower, Lender, or 
RHCDS personnel to the Administrator or the Director, Equal Opportunity 
Staff. Complaints and compliance will be handled by RHCDS in accordance 
with subpart E of part 1901.
    (c) Forms and requirements. In accordance with Executive Order 
11246, the following equal opportunity and nondiscrimination forms and 
requirements are applicable when the loan guarantee involves a 
construction [[Page 26991]] contract between the borrower and the 
contractor that is more than $10,000. The Lender is responsible for 
seeing that the requirements of paragraphs (c)(1) through (c)(5) of 
this section are met:
    (1) Equal Opportunity Agreement. Before loan closing, each borrower 
whose loan involves a construction contract of more than $10,000 must 
execute the RHCDS Equal Opportunity Agreement or the equivalent HUD 
form.
    (2) Construction contract or subcontract in excess of $10,000. If 
the contract or a subcontract exceeds $10,000:
    (i) The contractor or subcontractor must submit the Agency 
Compliance Statement before or as a part of the bid or negotiation.
    (ii) An Equal Opportunity Clause must be part of each contract and 
subcontract.
    (iii) With notification of the contract award, the contractor must 
receive the Agency Notice to Contractors and Applicants signed by 
RHCDS, with an attached Equal Employment Opportunity poster. Posters in 
Spanish must be provided and displayed where a significant portion of 
the population is Spanish speaking.
    (iv) Under Executive Order 11246 and Executive Order 11375, the 
contractor or subcontractor, subject to the requirements of paragraph 
(c)(5) of this section, is prohibited from discriminating because of 
race, color, religion, sex, or national origin to ensure equality of 
opportunity in all aspects of employment.
    (3) One hundred or more employees and construction contract or 
subcontract exceeds $10,000. If the contractor or subcontractor has 100 
or more employees and the contract or subcontract is for more than 
$10,000, in addition to the requirements of paragraph (c)(2) of this 
section, a report must be filed annually on or before March 31. Failure 
to file timely, complete, and accurate reports constitutes 
noncompliance with the Equal Opportunity Clause. Report forms are 
distributed by the Joint Reporting Committee and any questions on this 
form should be addressed by the contractor or subcontractor to the 
Joint Reporting Committee, 1800 G Street, NW., Washington, D.C. 20006.
    (4) Fifty or more employees and construction contract or 
subcontract exceeds $50,000. If the contract or subcontract is more 
than $50,000 and the contractor or subcontractor has 50 or more 
employees, in addition to the requirements of paragraph (c)(2) of this 
section, each such contractor or subcontractor must be informed that 
the contractor or subcontractor must develop a written affirmative 
action compliance program for each of the contractor's or 
subcontractor's establishments and put it on file in each of the 
personnel offices within 120 days of the commencement of the contract 
or subcontract.
    (5) [Reserved]
    (6) Employee complaints. Any employee of or applicant for 
employment with such contractors or subcontractors may file a written 
complaint of discrimination with RHCDS.
    (i) A written complaint of alleged discrimination must be signed by 
the complainant and should include the following information:
    (A) The name and address (including telephone number, if any) of 
the complainant.
    (B) The name and address of the person committing the alleged 
discrimination.
    (C) A description of the acts considered to be discriminatory.
    (D) Any other pertinent information that will assist in the 
investigation and resolution of the complaint.
    (ii) Such complaint must be filed not later than 180 days from the 
date of the alleged discrimination, unless the time for filing is 
extended by RHCDS for good cause shown by the complainant.


Sec. 1980.318  Flood or mudslide hazard area precautions.

    RHCDS policy is to discourage lending in designated flood and 
mudslide hazard areas. Loan guarantees shall not be issued in 
designated flood/mudslide hazard areas unless there is no practical 
alternative.
    (a) Dwelling location. Dwellings and building improvements located 
in special flood or mudslide hazard areas, as designated by the Federal 
Emergency Management Agency (FEMA) may be financed under this subpart 
only if:
    (1) The community, as a result of such designation by FEMA as a 
special flood or mudslide prone area, has an approved flood plain area 
management plan.
    (2) The dwelling location and construction plans and specifications 
for new buildings or improvements to existing buildings comply with an 
approved flood plain area management plan (see paragraph (a)(1) of this 
section).
    (3) Potential environmental impacts and feasible alternatives have 
been fully considered by RHCDS in accordance with the requirements of 
subpart G of part 1940.
    (4) The first floor elevation is above the 100 year flood zone 
elevation.
    (b) Flood insurance. If the dwelling is located in a special flood 
or mudslide hazard area, flood insurance must be purchased by the 
borrower prior to loan closing and maintained thereafter. See subpart B 
of part 1806 (FmHA Instruction 426.2).


Sec. 1980.319  Other Federal, State, and local requirements.

    In addition to the specific requirements of this subpart, on all 
proposals financed with an RHCDS guarantee, Lenders and/or applicants 
must coordinate with all appropriate Federal, state, and local 
agencies. Applicants and/or Lenders will be required to comply with any 
Federal, state, or local laws, regulatory commission rules, ordinances, 
and regulations which exist at the time the loan guarantee is issued 
which affect the dwelling including, but not limited to:
    (a) Borrowing money and giving security therefore;
    (b) Land use zoning;
    (c) Health, safety, and sanitation standards; and
    (d) Protection of the environment and consumer affairs.


Sec. 1980.320  Interest rate.

    The interest rate must not exceed the established applicable usury 
rate. Loans guaranteed under this subpart must bear a fixed interest 
rate over the life of the loan. The rate shall be agreed upon by the 
borrower and the Lender and must not be more than the lender's 
published rate for VA first mortgage loans with no discount points or 
the current Fannie Mae rate as defined in Sec. 1980.302(a), whichever 
is higher. The lender must document the rate and the date it was 
determined.


Sec. 1980.321  Terms of loan repayment.

    (a) Note. Principal and interest shall be due and payable monthly.
    (b) Term. The term for final maturity shall be not less than 30 
years from the date of the note and not more than 30 years from the 
date of the first scheduled payment.


Sec. 1980.322  Loan guarantee limits.

    The amount of the loan guarantee is 90 percent of the principal 
amount of the loan.
    (a) The maximum loss payment under the guarantee of Single Family 
Housing loans is the lesser of:
    (1) Any loss of an amount equal to 90 percent of the principal 
amount actually advanced to the borrower, or
    (2) Any loss sustained by the Lender of an amount up to 35 percent 
of the principal amount actually advanced to the borrower, plus 85 
percent of any additional loss sustained by the Lender of an amount up 
to the remaining 65 [[Page 26992]] percent of the principal amount 
actually advanced to the borrower.
    (b) Loss includes only:
    (1) Principal and interest evidenced by the guaranteed loan note;
    (2) Any loan subsidy due and owing; and
    (3) Any principal and interest indebtedness on RHCDS approved 
protective advances for protection and preservation of security.
    (c) Interest (including any subsidy) shall be covered by the loan 
note guarantee to the date of the final loss settlement when the Lender 
conducts liquidation in an expeditious manner in accordance with the 
provisions of Sec. 1980.376.


Sec. 1980.323  Guarantee fee.

    The Lender will pay a nonrefundable fee which may be passed on to 
the borrower. The amount of the fee is determined by multiplying the 
figure in exhibit K of FmHA Instruction 440.1 (available in any RHCDS 
office) times 90 percent of the principal amount of the loan.


Sec. 1980.324  Charges and fees by Lender.

    (a) Routine charges and fees. The Lender may establish the charges 
and fees for the loan, provided they are the same as those charged 
other applicants for similar types of transactions.
    (b) Late payment charges. Late payment charges will not be covered 
by the guarantee. Such charges may not be added to the principal and 
interest due under any guaranteed note. Late charges may be made only 
if:
    (1) Maximum amount. The maximum amount does not exceed the 
percentage of the payment due as prescribed by HUD or Fannie Mae or 
Freddie Mac.
    (2) Routine. They are routinely made by the Lender in similar types 
of loan transactions.
    (3) Payments received. Payments have not been received within the 
customary time frame allowed by the Lender. The term ``payment 
received'' means that the payment in cash, check, money order, or 
similar medium has been received by the Lender at its main office, 
branch office, or other designated place of payment.
    (4) Calculating charges. The Lender does not change the rate or 
method of calculating the late payment charges to increase charges 
while the loan note guarantee is in effect.
    (5) Interest-assisted loans. The Lender will not penalize or charge 
any fee to the borrower when the only delinquency is a loan subsidy 
payment, which the Lender is entitled to but has not received.


Sec. 1980.325  Transactions which will not be guaranteed.

    (a) Lease payments. Payments made on a lease will not be 
guaranteed.
    (b) Loans made by other Federal agencies. Loans made by other 
Federal agencies will not be guaranteed. This does not preclude 
guarantees of loans made by an FCS institution with direct lending 
authority. This also does not preclude loans made by state or local 
government agencies assisted by a Federal agency.


Secs. 1980.326-1980.329  [Reserved]


Sec. 1980.330  Applicant equity requirements.

    A loan to purchase a new or existing dwelling may be made up to the 
appraised market value of the security.


Sec. 1980.331  Collateral.

    (a) General. The entire loan must be secured by a first lien on the 
property being financed (second lien when the loan is for a subsequent 
loan to an existing borrower or there is a transfer and assumption of 
an existing loan) and the Lender will maintain this lien priority. The 
Lender is responsible for assurance that proper and adequate security 
interest is obtained, maintained in existence, and of record to protect 
the interests of the Lender and RHCDS.
    (b) Third party liens, suits pending, etc. Among other things in 
obtaining the required security, it is necessary to ascertain that 
there are no adverse claims or liens against the property or the 
borrower, and that there are no suits pending or anticipated that would 
affect the property or the borrower.
    (c) All collateral must secure the entire loan. The Lender will not 
take separate collateral, including but not limited to mortgage 
insurance, to secure that portion of the loss not covered by the 
guarantee.


Sec. 1980.332  [Reserved]


Sec. 1980.333  Promissory notes and security instruments.

    (a) Loan instruments. The Lender may use its own forms for 
promissory notes, real estate mortgages, including deeds of trust and 
similar instruments, and security agreements provided there are no 
provisions that are in conflict or otherwise inconsistent with the 
provisions of Sec. 1980.309(b)(2)(v). The Lender is responsible for 
determining that the security instruments are adequate and are properly 
maintained of record.
    (b) Interest assistance instruments. When the loan guarantee is 
authorized from interest assisted funds, RHCDS will provide the Lender 
with the necessary forms and security instruments related to the 
interest assistance. The Lender will complete the Master Interest 
Assistance Agreement, assure that the closing agent properly records a 
junior mortgage or deed of trust which grants RHCDS a lien on the 
property in order to protect RHCDS's equity share subject only to the 
first mortgage or deed of trust to the Lender or other authorized prior 
lien, and forward the agreements and recorded instruments to RHCDS.


Sec. 1980.334  Appraisal of property serving as collateral.

    An appraisal of all property serving as security for the proposed 
loan will be completed and submitted to RHCDS for review with the 
request for loan guarantee. The Lender may pass the cost of the 
appraisal on to the borrower. The appraisal must have been completed 
within 6 months of the date the request for a conditional commitment is 
submitted to RHCDS.
    (a) Qualified appraiser. The Lender will use an appraiser that is 
properly licensed or certified, as appropriate, to make residential 
real estate appraisals in accordance with the criteria set forth by the 
Appraiser Qualification Board (AQB) of the Appraisal Foundation 
regardless of the amount of the loan. Appraisers may not discriminate 
against any person in making or performing appraisal services because 
of race, color, familial status, religion, sex, age, disability, or 
national origin.
    (b) Appraisal report. Residential appraisals will be completed 
using the sales comparison (market) and cost approach to market value.
    (1) URAR. The appraiser will use the most recent revision of the 
URAR.
    (i) The ``Estimated Reproduction Cost-New of Improvements'' section 
of the form must be completed when the dwelling is less than 1 year 
old.
    (ii) Not less than three comparable sales, which are not more than 
12 months old, will be used unless the appraiser provides documentation 
that such comparables are not available in the area. Comparable sales 
should be located as close as possible to the subject dwelling. When 
the need arises to use a comparable sale that is a considerable 
distance from the subject, the appraiser must use his or her knowledge 
of the area and apply good judgment in selecting comparable sales that 
are the best indicators of value for the subject property.
    (2) Supporting documentation. A narrative explanation supporting 
unusual adjustments must be attached to the appraisal.
    (3) Photographs. The appraisal report must include photographs 
which clearly [[Page 26993]] provide front, rear, and street scene 
views of the subject property, and a front view for each comparable 
sale used in the completion of the appraisal.
    (c) RHCDS acceptance. The Lender will be required to correct or 
complete any appraisal returned by RHCDS for corrective action.


Secs. 1980.335-1980.339  [Reserved]


Sec. 1980.340  Acquisition, construction, and development.

    (a) Acquisition of property. The Lender is responsible for seeing 
that the property to be acquired with loan funds is acquired as planned 
and that the required security interest is obtained.
    (b) New construction. A new dwelling financed with a guaranteed 
loan must:
    (1) Have been built in accordance with building plans and 
specifications that contain approved building code certifications 
(eligible certifiers are listed in Sec. 1924.5(f)(1)(iii)).
    (2) Conform to RHCDS thermal standards (exhibit D of subpart A of 
part 1924).
    (i) The builder may certify conformance with RHCDS thermal 
standards contained in paragraph IV A of exhibit D of subpart A of part 
1924.
    (ii) A qualified, registered architect or a qualified, registered 
engineer must certify conformance with RHCDS thermal standards 
contained in paragraph IV C of exhibit D of subpart A of part 1924.
    (c) Development. The Lender and borrower are responsible for seeing 
that the loan purposes are accomplished and loan funds are properly 
utilized. This includes, but is not limited to, seeing that:
    (1) The applicable development standards are adhered to;
    (2) Drawings and specifications are certified and complied with;
    (3) Adequate water, electric, heating, waste disposal, and other 
necessary utilities and facilities are obtained;
    (4) Equal opportunity and nondiscrimination requirements are met, 
(see Sec. 1980.317); and
    (5) A builder's warranty is issued when new construction, repair, 
or rehabilitation is involved, which provides for at least 1 year's 
warranty from the date of completion or acceptance of the work.


Sec. 1980.341  Inspections of construction and compliance reviews.

    (a) Qualified inspectors. Inspections will be made during 
construction by a construction inspector deemed qualified and approved 
by the Lender. A qualified inspector is one that a reasonable person 
would hire to perform an inspection of his/her own dwelling.
    (b) Inspections. Inspections shall be done by a party the Lender 
determines to be qualified, such as a HUD approved fee inspector. The 
sale agreement shall identify which party (i.e., purchaser or seller) 
is responsible to obtain and pay for required inspections and 
certifications. In connection with inspections involving construction 
contracts, equal opportunity and nondiscrimination compliance reviews 
must be made as required by Sec. 1980.317.
    (1) For existing dwellings, inspections must be made to determine 
that the dwelling:
    (i) Meets the current requirements of HUD Handbooks 4150.1 and 
4905.1 (available from the HUD Ordering Desk 1-800-767-7468).
    (ii) Meets the thermal standards per Sec. 1980.313(f).
    (2) For a newly constructed dwelling, when construction is planned, 
the Lender must see that the following inspections are made in addition 
to any additional inspections the Lender deems appropriate:
    (i) When footings and foundations are ready to be poured but prior 
to back-filling.
    (ii) When shell is closed in but plumbing, electrical, and 
mechanical work are still exposed.
    (iii) When construction is completed prior to occupancy.
    (iv) Inspections under paragraphs (b)(2) (i) and (ii) of this 
section are not required when the builder supplies an insured 10 year 
warranty plan acceptable under the requirements of exhibit L of subpart 
A of part 1924.
    (c) Water and water/waste disposal. The Lender will see that the 
water and water/waste disposal systems have been approved by a state or 
local government agency.


Secs. 1980.342-1980.344  [Reserved]


Sec. 1980.345  Applicant eligibility requirements for a guaranteed 
loan.

    Applicants who meet the requirements of this section are eligible 
for a loan guaranteed under this subpart. Applicants desiring loan 
assistance as provided in this subpart must file loan applications with 
a Lender that meets the requirements set forth in Sec. 1980.309. The 
Lender may accept applications filed through its agents, 
correspondents, branches, or other institutions. The Lender must have 
at least one personal interview with the applicant to verify the 
information on the application and to obtain a complete picture of the 
applicant's financial situation.
    (a) Eligible income. The applicant's adjusted annual income 
determined in accordance with Sec. 1980.348 may not exceed the 
applicable income limit contained in exhibit C of FmHA Instruction 
1980-D (available in any RHCDS office) at the time of issuance of the 
conditional commitment. Adjusted annual income is used to determine 
eligibility for the RHCDS loan guarantee.
    (b) Adequate and dependable income. The applicant (and coapplicant, 
if applicable) has adequate and dependably available income. The 
applicant's history of income and the history of the typical annual 
income of others in the area with similar types of employment will be 
considered in determining whether the applicant's income is adequate 
and dependable.
    (1) A farm or nonfarm business loss must be considered in 
determining repayment ability.
    (2) A loss may not be used to offset other income in order to 
qualify for or increase the amount of RHCDS assistance.
    (c) Determining repayment ability. In considering whether the 
applicant has adequate repayment ability, the Lender must calculate a 
total debt ratio. The applicant's total debt ratio is calculated by 
dividing the applicant's monthly obligations by gross monthly income.
    (1) Monthly obligation consists of the principal, interest, taxes, 
and insurance (PITI) for the proposed loan (less any interest 
assistance under this program or any other assistance from a state or 
county sponsored program when such payments are made directly to the 
Lender on the applicant's behalf), homeowner and other assessments, and 
the applicant's long term obligations. Long term obligations include 
those obligations such as alimony, child support, and other obligations 
with a remaining repayment period of more than 6 months and other 
shorter term debts that are considered to have a significant impact on 
repayment ability.
    (i) Cosigned obligations. Debts which have been cosigned by the 
applicant for another party must be considered unless the applicant 
provides evidence (usually canceled checks of the co-obligor or other 
third party) that it has not been necessary for the applicant to make 
any payments over the past 12 months.
    (ii) Liability on a previous mortgage. When the applicant has 
disposed of a property through a sale, trade, or transfer without a 
release of liability, the debt must be considered unless the applicant 
provides evidence (usually canceled checks of the new owners) that the 
new owners have successfully made all payments over the past 12 months.
    (2) Income, for the purpose of determining the total debt ratio, 
[[Page 26994]] includes the total qualifying income of the applicant, 
coapplicant, and any other member of the household who will be a party 
to the note.
    (i) An applicant's qualifying income may be different than the 
``adjusted annual income'' which is used to determine program 
eligibility. In considering qualifying income, the Lender must 
determine whether there is a historical basis to conclude that the 
income is likely to continue. Typically, income of less than 24 months 
duration should not be included in qualifying income. If the applicant 
is obligated to pay child care costs, the amount of any Federal tax 
credit for which the applicant is eligible may be added to the 
applicant's qualifying income.
    (ii) In considering income that is not subject to Federal income 
tax, the amount of tax savings attributable to the nontaxable income 
may be added for use with the repayment ratios. Adjustments for other 
than the applicable tax rate are not authorized. The Lender must verify 
that the income is not subject to Federal income tax and that the 
income (and its nontax status) is likely to continue. The Lender must 
fully document and support any adjustment made.
    (3) The applicant meets RHCDS requirements for repayment ability 
when the applicant's total debt ratio is less than or equal to 41 
percent and the ratio of the proposed PITI to income does not exceed 29 
percent.
    (4) Applicants who do not meet the requirements of this section 
will be considered ineligible unless another adult in the household has 
adequate income and wishes to join in the application as a coapplicant. 
The combined incomes and debts then may be considered in determining 
repayment ability.
    (5) If the applicant's total debt ratio and/or PITI ratio exceed 
the maximum authorized ratio, the Lender may request RHCDS concurrence 
in allowing a higher ratio based on compensating factors. Acceptable 
compensating factors include but are not limited to the applicant 
having a history over the previous 12 month period of devoting a 
similar percentage of income to housing expense to that of the proposed 
loan, or accumulating savings which, when added to the applicant's 
housing expense and shows a capacity to make payments on the proposed 
loan. A low total debt ratio, by itself, does not compensate for a high 
PITI.
    (d) Credit history. The applicant must have a credit history which 
indicates a reasonable ability and willingness to meet obligations as 
they become due.
    (1) Any or all of the following are indicators of an unacceptable 
credit history unless the cause of the problem was beyond the 
applicant's control and the criteria in paragraph (d)(3) of this 
section are met:
    (i) Incidents of more than one debt payment being more than 30 days 
late if the incidents have occurred within the last 12 months. This 
includes more than one late payment on a single account.
    (ii) Loss of security due to a foreclosure if the foreclosure has 
occurred within the last 36 months.
    (iii) Outstanding tax liens or delinquent Government debts with no 
satisfactory arrangements for payments, no matter what their age as 
long as they are currently delinquent and/or due and payable.
    (iv) A court-created or affirmed obligation (judgment) caused by 
non-payment that is currently outstanding or has been outstanding 
within the last 12 months.
    (v) Two or more rent payments paid 30 days or more past due within 
the last 3 years.
    (vi) Accounts which have been converted to collections within the 
last 12 months (utility bills, hospital bills, etc.).
    (vii) Collection accounts outstanding, with no satisfactory 
arrangements for payments, no matter what their age as long as they are 
currently delinquent and/or due and payable.
    (viii) Any debts written off within the last 36 months.
    (2) The following will not indicate an unacceptable credit history:
    (i) ``No history'' of credit transactions by the applicant.
    (ii) A bankruptcy in which applicant was discharged more than 36 
months before application.
    (iii) A satisfied judgment or foreclosure with no loss of security 
which was completed more than 12 months before the date of application.
    (3) The Lender may consider mitigating circumstances to establish 
the borrower's intent for good credit when the applicant provides 
documentation that:
    (i) The circumstances were of a temporary nature, were beyond the 
applicant's control, and have been removed (e.g., loss of job; delay or 
reduction in government benefits or other loss of income; increased 
expenses due to illness, death, etc.); or
    (ii) The adverse action or delinquency was the result of a refusal 
to make full payment because of defective goods or services or as a 
result of some other justifiable dispute relating to the goods or 
services purchased or contracted for.
    (e) Previous RHCDS loan. RHCDS shall determine whether the 
applicant has had a previous RHCDS debt which was settled, or is 
subject to settlement, or whether RHCDS otherwise suffered a loss on a 
loan to the applicant. If RHCDS suffered any loss related to a previous 
loan, a loan guarantee shall not be issued unless RHCDS determines the 
RHCDS loss was beyond the applicant's control, and any identifiable 
reasons for the loss no longer exist.
    (f) Other Federal debts. The loan approval official will check 
HUD's Credit Alert Interactive Voice Response System (CAIVRS) to 
determine if the applicant is delinquent on a Federal debt. The Lender 
will clearly document both its CAIVRS identifying number and the 
borrower and coborrower's CAIVRS access code near the signature line on 
the mortgage application form. No decision to deny credit can be based 
solely on the results of the CAIVRS inquiry. If CAIVRS identifies a 
delinquent Federal debt, the Lender will immediately suspend processing 
of the application. The applicant will be notified that processing has 
been suspended and will be asked to contact the appropriate Federal 
agency, at the telephone number provided by CAIVRS, to resolve the 
delinquency. When the applicant provides the Lender with official 
documentation that the delinquency has been paid in full or otherwise 
resolved, processing of the application will be continued. An 
outstanding judgment obtained by the United States in a Federal court 
(other than the United States Tax Court), which has been recorded, 
shall cause the applicant to be ineligible to receive a loan guarantee 
until the judgment is paid in full or otherwise satisfied. RHCDS loan 
guarantee funds may not be used to satisfy the judgment. If the 
judgment remains unsatisfied or if the applicant is delinquent on a 
Federal debt and is unable to resolve the delinquency, the Lender will 
reject the applicant.


Sec. 1980.346  Other eligibility criteria.

    The applicant must:
    (a) Be a person who does not own a dwelling in the local commuting 
area or owns a dwelling which is not structurally sound, functionally 
adequate;
    (b) Be without sufficient resources to provide the necessary 
housing and be unable to secure the necessary conventional credit 
without an RHCDS guarantee upon terms and conditions which the 
applicant could reasonably be expected to fulfill.
    (c) Be a natural person (individual) who resides as a citizen in 
any of the 50 [[Page 26995]] States, the Commonwealth of Puerto Rico, 
the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the 
Northern Marianas, Federated States of Micronesia, and the Republics of 
the Marshall Islands and Palau, or a noncitizen who resides in one of 
the foregoing areas after being legally admitted to the U.S. for 
permanent residence or on indefinite parole.
    (d) Possess legal capacity to incur the loan obligation and have 
reached the legal age of majority in the state or have had the 
disability of minority removed by court action.
    (e) Have the potential ability to personally occupy the home on a 
permanent basis. Because of the probability of their moving after 
graduation, full-time students will not be granted loans unless:
    (1) The applicant intends to make the home his or her permanent 
residence and there are reasonable prospects that employment will be 
available in the area after graduation, and
    (2) An adult member of the household will be available to make 
inspections if the home is being constructed.


Sec. 1980.347  Annual income.

    Annual income determinations will be thoroughly documented in the 
Lender's casefile. Historical data based on the past 12 months or 
previous fiscal year may be used if a determination cannot logically be 
made. Annual income to be considered includes:
    (a) Current verified income, either part-time or full-time, 
received by any applicant/borrower and all adult members of the 
household, including any coapplicant/coborrower.
    (b) If any other adult member of the household is not presently 
employed but there is a recent history of such employment, that 
person's income will be considered unless the applicant/borrower and 
the person involved sign a statement that the person is not presently 
employed and does not intend to resume employment in the foreseeable 
future, or if interest assistance is involved, during the term of the 
Interest Assistance Agreement.
    (c) Income from such sources as seasonal type work of less than 12 
months duration, commissions, overtime, bonuses, and unemployment 
compensation must be computed as the estimated annual amount of such 
income for the upcoming 12 months. Consideration should be given to 
whether the income is dependable based on verification by the employer 
and the applicant's history of such income over the previous 24 months.
    (d) The following are included in annual income:
    (1) The gross amount, before any payroll deductions, of wages and 
salaries, overtime pay, commissions, fees, tips, bonuses, and other 
compensation for personal services of all adult members of the 
household.
    (2) The net income from operation of a farm, business, or 
profession. Consider the following:
    (i) Expenditures for business or farm expansion and payments of 
principal on capital indebtedness shall not be used as deductions in 
determining income. A deduction is allowed in the manner prescribed by 
IRS regulations only for interest paid in amortizing capital 
indebtedness.
    (ii) Farm and nonfarm business losses are considered ``zero'' in 
determining annual income.
    (iii) A deduction, based on straight line depreciation, is allowed 
in the manner prescribed by IRS regulations for the exhaustion, wear 
and tear, and obsolescence of depreciable property used in the 
operation of a trade, farm, or business by a member of the household. 
The deduction must be based on an itemized schedule showing the amount 
of straight line depreciation that could be claimed for Federal income 
tax purposes.
    (iv) Any withdrawal of cash or assets from the operation of a farm, 
business, or profession will be included in income, except to the 
extent the withdrawal is reimbursement of cash or assets invested in 
the operation by a member of the household.
    (v) A deduction for verified business expenses, such as for 
lodging, meals, or fuel, for overnight business trips made by salaried 
employees, such as long-distance truck drivers, who must meet these 
expenses without reimbursement.
    (3) Interest, dividends, and other net income of any kind from real 
or personal property, including:
    (i) The share received by adult members of the household from 
income distributed from a trust fund.
    (ii) Any withdrawal of cash or assets from an investment except to 
the extent the withdrawal is reimbursement of cash or assets invested 
by a member of the household.
    (iii) Where the household has net family assets, as defined in 
Sec. 1980.302(a), in excess of $5,000, the greater of the actual income 
derived from all net family assets or a percentage of the value of such 
assets based on the current passbook savings rate.
    (4) The full amount of periodic payments received from social 
security (including social security received by adults on behalf of 
minors or by minors intended for their own support), annuities, 
insurance policies, retirement funds, pensions, disability or death 
benefits, and other similar types of periodic receipts.
    (5) Payments in lieu of earnings; such as unemployment, disability 
and worker's compensation, and severance pay.
    (6) Public assistance except as indicated in paragraph (e)(2) of 
this section.
    (7) Periodic allowances, such as:
    (i) Alimony and/or child support awarded in a divorce decree or 
separation agreement, unless the payments are not received and a 
reasonable effort has been made to collect them through the official 
entity responsible for enforcing such payments and they are not 
received as ordered; or
    (ii) Recurring monetary gifts or contributions from someone who is 
not a member of the household.
    (8) Any amount of educational grants or scholarships or VA benefits 
available for subsistence after deducting expenses for tuition, fees, 
books, and equipment.
    (9) All regular pay, special pay (except for persons exposed to 
hostile fire), and allowances of a member of the armed forces who is 
the applicant/borrower or coapplicant/coborrower, whether or not that 
family member lives in the unit.
    (10) The income of an applicant's spouse, unless the spouse has 
been living apart from the applicant for at least 3 months (for reasons 
other than military or work assignment), or court proceedings for 
divorce or legal separation have been commenced.
    (e) The following are not included in annual income but may be 
considered in determining repayment ability:
    (1) Income from employment of minors (including foster children) 
under 18 years of age. The applicant and spouse are not considered 
minors.
    (2) The value of the allotment provided to an eligible household 
under the Food Stamp Act of 1977.
    (3) Payments received for the care of foster children.
    (4) Casual, sporadic, or irregular cash gifts.
    (5) Lump-sum additions to family assets such as inheritances; 
capital gains; insurance payments from health, accident, hazard, or 
worker's compensation policies; and settlements for personal or 
property losses (except as provided in paragraph (d)(5) of this 
section).
    (6) Amounts which are granted specifically for, or in reimbursement 
of, the cost of medical expenses.
    (7) Amounts of education scholarships paid directly to the student 
or to the educational institution and [[Page 26996]] amounts paid by 
the Government to a veteran for use in meeting the costs of tuition, 
fees, books, and equipment. Any amounts of such scholarships or 
veteran's payments, which are not used for the aforementioned purposes 
and are available for subsistence, are considered to be income. Student 
loans are not considered income.
    (8) The hazardous duty pay to a service person applicant/borrower 
or spouse away from home and exposed to hostile fire.
    (9) Any funds that a Federal statute specifies must not be used as 
the basis for denying or reducing Federal financial assistance or 
benefits. (Listed in exhibit F of FmHA Instruction 1980-D, available in 
any RHCDS office.)
    (f) Income of live-in aides who are not relatives of the applicant 
or members of the household will not be counted in calculating annual 
income and will not be considered in determination of repayment 
ability.


Sec. 1980.348  Adjusted annual income.

    Adjusted annual income is annual income as determined in 
Sec. 1980.347 less the following:
    (a) A deduction of $480 for each member of the family residing in 
the household, other than the applicant, spouse, or coapplicant, who 
is:
    (1) Under 18 years of age;
    (2) Eighteen years of age or older and is disabled as defined in 
Sec. 1980.302(a); or
    (3) A full-time student aged 18 or older.
    (b) A deduction of $400 for any elderly family as defined in 
Sec. 1980.302(a).
    (c) A deduction for the care of minors 12 years of age or under, to 
the extent necessary to enable a member of the applicant/borrower's 
family to be gainfully employed or to further his or her education. The 
deduction will be based only on monies reasonably anticipated to be 
paid for care services and, if caused by employment, must not exceed 
the amount of income received from such employment. Payments for these 
services may not be made to persons whom the applicant/borrower is 
entitled to claim as dependents for income tax purposes. Full 
justification for such deduction must be recorded in detail in the loan 
docket.
    (d) A deduction of the amount by which the aggregate of the 
following expenses of the household exceeds 3 percent of gross annual 
income:
    (1) Medical expenses for any elderly family (as defined in 
Sec. 1980.302(a)). This includes medical expenses for any household 
member the applicant/borrower anticipates incurring over the ensuing 12 
months and which are not covered by insurance (e.g., dental expenses, 
prescription medicines, medical insurance premiums, eyeglasses, hearing 
aids and batteries, home nursing care, monthly payments on accumulated 
major medical bills, and full-time nursing or institutional care which 
cannot be provided in the home for a member of the household); and
    (2) Reasonable attendant care and auxiliary apparatus expenses for 
each disabled member of any household to the extent necessary to enable 
any member of such household (including such disabled member) to be 
employed.


Secs. 1980.349--1980.350  [Reserved]


Sec. 1980.351  Requests for reservation of funds.

    Upon receipt of a viable loan application and prior to loan 
underwriting, the Lender may request a reservation of loan guarantee 
funds for the loan application. The request should be made as follows:
    (a) The Lender must have a complete application on file that 
clearly indicates the borrower has sufficient qualifying income and an 
adequate credit history.
    (b) The reservation shall be valid for 60 days. The Lender must 
submit a request for a loan guarantee on or before the expiration date 
of the reservation. Substitutions of borrowers or dwellings are not 
authorized.
    (c) Reservations may be granted only when adequate funding 
authority is available. Reservations are subject to the availability of 
funds. Reservations will not exceed 90 percent of the funds available 
during that quarter.
    (d) [Reserved]
    (e) All reservations will expire at the end of 60 days or no later 
than the pooling date published in subpart L of part 1940 whichever 
occurs first.
    (f) [Reserved]


Sec. 1980.352  [Reserved]


Sec. 1980.353  Filing and processing applications.

    (a) Loan priorities. Complete applications will be considered by 
RHCDS in the order received from Lenders authorized to participate in 
the program except as provided in paragraph (b) of this section.
    (b) Preference. Preference is considered when there is a shortage 
of funds and there is more than one request for a conditional 
commitment or reservation of funds ready for approval. Applications for 
guarantees on loans to first-time homebuyers or veterans, their 
spouses, or children of deceased servicemen who died during one of the 
periods described in the definition of ``Veteran'' in Sec. 1980.302(a) 
will be given preference by RHCDS. Displaced homemakers and single 
parents are first-time homebuyers even though they previously owned or 
resided in a dwelling with a spouse.
    (c) Applications. If, upon completion of the loan underwriting 
process of an application, the Lender concludes that the application 
can be considered for an RHCDS guarantee, the Lender will provide 
written documentation addressing each of the loan eligibility 
requirements of this subpart and the basis for the conclusion in the 
applicant's file. The Lender will submit a request for the guarantee 
using a Form FmHA 1980-21, ``Request for Single Family Housing Loan 
Guarantee.'' The form should contain or be supplemented with all of the 
following information:
    (1) Name, address, telephone number, social security number, age, 
citizenship status of the applicant, and number of persons in the 
household.
    (2) Amount of loan request and proposed use of loan funds.
    (3) Name, address, contact person, and telephone number of the 
proposed Lender.
    (4) Anticipated loan rates and terms, the date and amount of the 
Fannie Mae or VA rate used to determine the interest rate, and the 
Lender's certification that the proposed rate is in compliance with 
Sec. 1980.320.
    (5) Statement from the Lender that it will not make the loan as 
requested by the applicant without the proposed guarantee and that the 
applicant has been advised in writing that the applicant is subject to 
criminal action if he or she knowingly and willfully gives false 
information to obtain a federally guaranteed loan.
    (6) If the applicant is not a United States citizen, evidence of 
being legally admitted for permanent residence or indefinite parole.
    (7) The applicant's sex, race, and veteran status and whether 
applicant is a first-time homebuyer.
    (8) An appraisal report including information about the dwelling 
location with respect to neighborhood and community services and 
facilities, business and industrial enterprises, and streets or roads 
serving the housing.
    (9) Credit report obtained by the Lender.
    (10) An equal opportunity agreement supplied by RHCDS for 
construction contracts costing more than $10,000.
    (11) Evidence of compliance with the Privacy Act of 1974. 
[[Page 26997]] 
    (12) Lender's loan underwriting (repayment ability, 
creditworthiness, and security value).
    (13) A certification from the borrower regarding debarment, 
suspension, ineligibility, and voluntary exclusion from Federal 
programs using a form supplied by RHCDS.
    (14) A statement signed by the borrower acknowledging that the 
borrower understands that RHCDS approval of the guarantee is required 
and is subject to the availability of funds.
    (15) A copy of a valid verification of income for each adult member 
of the household.
    (16) A copy of the purchase agreement or bid for construction 
contract.
    (d) [Reserved]
    (e) Verifying information provided. Written documentation from 
third parties is the preferred method of verifying information. 
Verifications must pass directly from the source of information to the 
Lender and shall not pass through the hands of a third party or 
applicant.
    (1) Income verification. Employment verifications and other income 
verifications obtained in accordance with this paragraph are valid for 
120 days (180 days for proposed new construction). Income verifications 
must be valid at the time the conditional commitment is issued.
    (i) An RHCDS approved form or the equivalent HUD/FHA/VA or Fannie 
Mae form will be used to verify employment income of the loan applicant 
except when the applicant is self-employed. The form will be signed by 
the applicant or borrower or accompanied by an authorization for a 
release of information form signed by the applicant or borrower and 
sent directly to the employer by the Lender. The Lender should also 
obtain copies of the three most recent paycheck stubs. The information 
in the employer verification should be compared to the information in 
the paycheck stubs for consistency.
    (ii) Income information that cannot be obtained by use of this form 
will be obtained in writing from third parties to the extent possible.
    (iii) Alimony and/or child support payments will be verified by 
obtaining a copy of the divorce decree or other legal document 
indicating the amount of the payments. When the applicant states that 
less than the amount awarded is received, the Lender will request 
documentation from the official entity through which payments are 
received or other third party able to provide the verification when 
payment is not made through an official entity indicating the amounts 
and dates of payments to the applicant during the previous 12 months.
    (iv) When it is not feasible to verify income in paragraph 
(e)(1)(iii) of this section through third parties, the Lender is 
authorized to accept an affidavit from the applicant stating the effort 
made to collect the amount awarded and the amounts and dates of 
payments received during the previous 12 months.
    (v) Applicants and borrowers deriving their income from a farming 
or business enterprise will provide current documentation of the income 
and expenses of the operation. In addition, historic information from 
the previous fiscal year must be presented.
    (vi) Social Security, pension, and disability income may be 
verified by obtaining a copy of the most recent award or benefit letter 
prepared and signed by the authorizing agency. This verification will 
be considered valid only for 1 year from the date of the award or 
benefit letter.
    (2) Verification of disability. An RHCDS supplied form will be used 
to verify disability in cases where State Review Board or Social 
Security records are not available. Receipt of veteran's benefits for 
disability, whether service-oriented or otherwise, does not 
automatically establish disability.
    (3) Verification of alien status. Aliens are required to present 
documentation of their status. Section 1944.9 outlines the acceptable 
forms of documentation.
    (4) Verification of credit history and current debt. The Lender 
shall determine all liabilities of all parties responsible for 
repayment of the proposed loan. Credit reporting information must pass 
directly between the Lender and the credit reporting agency or source.
    (i) Mortgage credit reports shall be used to determine 
creditworthiness unless the applicant resides in a remote rural area 
and conclusive or sufficient information would not be available. 
Information relative to judgments, garnishments, foreclosures, and 
bankruptcies must be obtained when a credit report is not obtained.
    (ii) The credit report must be the most recent revision of the 
Residential Mortgage Credit Report form and meet the standards 
prescribed by Fannie Mae, Freddie Mac, HUD, VA, or RHCDS.


Sec. 1980.354  [Reserved]


Sec. 1980.355  Review of requirements.

    Upon the Lender's review of the conditional commitment, the Lender 
may determine whether to accept the conditions outlined in it.
    (a) Accepting conditions. Immediately after reviewing the 
conditions and requirements in the conditional commitment and the 
options listed on the back of the form, the Lender may proceed with 
loan closing. If the conditions cannot be met, the Lender and borrower 
may propose alternate conditions to RHCDS.
    (b) Canceling commitment. If the Lender indicates in the acceptance 
or rejection of conditions that it desires to obtain a loan note 
guarantee and subsequently decides prior to loan closing that it no 
longer wants a loan note guarantee, the Lender should immediately 
advise the RHCDS approval official.


Secs. 1980.356--1980.359  [Reserved]


Sec. 1980.360  Conditions precedent to issuance of the loan note 
guarantee.

    (a) Lender certification. The Lender must certify to RHCDS that:
    (1) No major changes have been made in the Lender's loan conditions 
and requirements since the issuance of the conditional commitment, 
except those approved in writing by RHCDS. In the event the interest 
rate has not been fixed at the time the conditional commitment is 
issued, and the interest rate increases between the time of issuance of 
the conditional commitment and loan closing, the Lender should note the 
change when submitting the package to RHCDS for loan guarantee. If 
either or both of the underwriting ratios are exceeded as a result of 
the interest rate increase, the Lender should list the compensating 
factors that demonstrate that sufficient repayment ability still 
exists.
    (2) All planned property acquisition has been completed and:
    (i) All development has been completed; or
    (ii) An escrow account has been established in accordance with 
Sec. 1980.315.
    (3) Required insurance coverage is in effect and an escrow account 
has been established for the payment of taxes and insurance.
    (4) Truth-in-lending requirements have been met.
    (5) All equal employment opportunity and nondiscrimination 
requirements have been met.
    (6) The loan has been properly closed by a party skilled and 
experienced in conducting loan closings and the required security 
instruments, including any required shared equity instruments, have 
been obtained and recorded in the appropriate office in a timely and 
accurate manner.
    (7) The borrower has a marketable (clean and defensible) title to 
the property then owned by the borrower, [[Page 26998]] subject to the 
instrument securing the loan to be guaranteed, and any other exceptions 
approved in writing by RHCDS.
    (8) Lien priorities are consistent with the requirements of the 
conditional commitment.
    (9) The loan proceeds have been disbursed for purposes and in 
amounts consistent with the conditional commitment.
    (10) There has been no adverse change in the borrower's situation 
since the conditional commitment was issued by RHCDS.
    (11) All other requirements of the conditional commitment have been 
met.
    (b) Inspections. The Lender will certify to RHCDS that inspections 
in accordance with Sec. 1980.341 have been completed.
    (c) Lender agreement. There must be a valid lender agreement on 
file.
    (d) Lender file. The Lender will maintain a file for each 
guaranteed RH loan containing originals or copies, as appropriate, of 
all documents pertaining to that loan.


Sec. 1980.361  Issuance of loan note guarantee.

    (a) When the Lender has certified that all requirements have been 
met, delivered a completed Loan Closing Report, and paid the guarantee 
fee, the RHCDS approval official will concurrently execute the loan 
note guarantee. The original will be provided to the Lender and be 
attached to the note.
    (b) [Reserved]
    (c) [Reserved]


Sec. 1980.362  [Reserved]


Sec. 1980.363  Review of loan closing.

    The Lender must provide RHCDS with documentation that all of the 
closing conditions have been met within 10 days of issuance of the loan 
note guarantee. The Lender is responsible for deficiencies regardless 
of whether RHCDS discovers them in the loan closing review and/or 
notifies the Lender at that time. RHCDS reviews do not constitute any 
waiver of fraud, misrepresentation, or failure of judgment by the 
Lender.


Secs. 1980.364-1980.365  [Reserved]


Sec. 1980.366  Transfer and assumption.

    (a) General. Lenders may, but are not required to, permit a 
transfer to an eligible applicant. A transfer and assumption must be 
approved by RHCDS in writing. Transfers without assumption are not 
authorized. Transfers and assumptions under this subpart are subject to 
the RHCDS guarantee fee.
    (b) Eligible transferee. An eligible transferee is one who meets 
the eligibility requirements of this subpart and includes situations 
involving transfers of housing in an area that has ceased to be rural. 
Loans made and guaranteed under this subpart prior to March 29, 1989, 
may be transferred to an applicant meeting all eligibility requirements 
of this subpart except the applicant's adjusted annual income may 
exceed the maximum income for the area by not more than 10 percent.
    (c) Determinations by the Lender. Before the transfer and 
assumption can be approved with the guarantee remaining in force, the 
Lender must determine that all of the following conditions can be met:
    (1) The transferee is an eligible applicant.
    (2) The transferee will assume the total remaining debt and acquire 
all of the property securing the guaranteed loan balance.
    (3) The transfer and assumption would not be made without the 
continuation of the loan guarantee.
    (4) The market value of the security being acquired by the 
transferee is at least equal to the secured indebtedness against it.
    (5) The priority of the existing lien securing the guaranteed loan 
will be maintained or improved.
    (6) Proper hazard insurance will be obtained.
    (7) The transfer and assumption can be properly closed and the 
conveyance instruments will be filed, registered, or recorded, as 
appropriate.
    (8) The transferor acknowledges continued liability for the debt in 
writing.
    (d) Changes in the promissory note or security instrument. If the 
assumption will result in changes in the repayment schedule or the 
interest rate, the changes must be approved by the present debtors 
since they will remain liable for the debt. Any changes in rates and 
terms must not exceed rates and terms allowed for new loans under this 
subpart and cannot exceed the interest rate on the initial loan. The 
debt must not exceed the amount remaining due on the original loan. The 
term of the loan may cover a period of up to 30 years from the date of 
transfer and assumption. The Lender's request for approval to RHCDS 
will be accompanied by:
    (1) An explanation of the reasons for the proposed change in the 
rates and terms.
    (2) A statement that the Lender's determinations required by 
paragraph (c) of this section can be made.
    (e) Release of liability. The Lender may not release the transferor 
of liability.
    (f) Forms and case numbers. The assumption may be made on the 
Lender's assumption agreement form. The assumption agreement must 
contain the RHCDS case numbers of the transferor and the transferee.
    (g) Lender's application to RHCDS. The Lender must submit the items 
outlined in Sec. 1980.353(e) of this subpart to RHCDS, in addition to 
items required in this section.
    (h) Notations and notices. The Lender must notify RHCDS whether the 
loan and security can be properly assumed and transferred. The Lender 
shall assure that the conveyance instruments are properly filed, 
registered, or recorded, as appropriate. Upon completion of the 
transfer and assumption, the Lender must provide RHCDS a copy of the 
transfer and assumption agreement. The Lender may present the loan note 
guarantee to RHCDS if it desires RHCDS to note the transfer and 
assumption on the loan note guarantee. If a new note is obtained, it 
will also be attached to the loan note guarantee.
    (i) Interest assistance. The original borrower's Master Interest 
Assistance Agreement may be transferred to an eligible transferee. 
Equity sharing, if any, owed by the transferor must be determined and 
collected at the time the loan is assumed and title to the property is 
transferred. See Sec. 1980.391.
    (j) Closing the transfer and assumption. As soon as the Lender has 
obtained RHCDS approval, the Lender may proceed with closing the 
transaction. The closing must include, but need not be limited to, the 
proper execution and delivery of the conveyance and assumption 
documents, compliance with any legal requirements, and actions 
necessary to perfect the transfer and the required lien priority.
    (k) Loan note guarantee. The existing loan note guarantee will 
continue to be in effect. RHCDS will note the transfer and assumption 
on the original loan note guarantee by completing the Assumption 
Agreement block by inserting the name of the assuming party.
    (l) Material furnished to RHCDS after closing. Immediately after 
closing, the Lender must furnish to RHCDS:
    (1) A conformed copy of the executed assumption agreement.
    (2) A statement showing:
    (i) Any changes made in the provisions of the promissory note or 
security instruments. [[Page 26999]] 
    (ii) That all conditions and requirements of paragraph (b) of this 
section have been met.
    (iii) That the required insertions have been made per paragraph (h) 
of this section.
    (m) Notification of Lender. The RHCDS approval official will review 
the proposed transfer and assumption and notify the Lender of the 
decision in writing. The request for transfer and assumption will be 
treated as an application for guaranteed loan assistance and will be 
handled in accordance with Sec. 1980.353. The Lender may proceed with 
the transfer and assumption upon obtaining RHCDS approval.


Sec. 1980.367  Unauthorized sale or transfer of the property.

    RHCDS consent is required to continue with the RHCDS guarantee in 
the event of a sale or transfer of the property in accordance with 
Sec. 1980.366. If the property is transferred without RHCDS consent, 
the Lender must take one of the following actions:
    (a) Obtain RHCDS consent if the conditions of Sec. 1980.366 can be 
met;
    (b) Satisfy the RHCDS guarantee and continue with the loan without 
the loan note guarantee; or
    (c) Notify the borrower and the transferee of the default and 
service the loan in accordance with Sec. 1980.371.


Secs. 1980.368-1980.369  [Reserved]


Sec. 1980.370  Loan servicing.

    RHCDS encourages Lenders to provide borrowers with the maximum 
opportunity to become successful homeowners. Lenders should provide 
sufficient servicing and counseling to meet the objectives of the loan. 
Loan servicing should be approached as a preventive action rather than 
a curative action. Prompt followup by the Lender on delinquent payments 
and early recognition and solution of problems are keys to resolving 
many delinquent loan cases. The Lender shall perform those services 
which a reasonable and prudent Lender would perform in servicing its 
own portfolio of loans that are not guaranteed.
    (a) Normal loan servicing. The Lender is responsible for servicing 
the loan under the Lender Agreement and this subpart even if the Lender 
has engaged a third party to service the loan on its behalf. Normal 
servicing includes:
    (1) Receiving all payments as they fall due and proper application 
of payments to principal and interest and escrow accounts for taxes 
(including special assessments) and insurance.
    (2) Establishment and maintenance of an escrow account to pay real 
estate taxes and assessments and required hazard and flood insurance on 
the security. All escrow accounts must be fully insured by the Federal 
Deposit Insurance Corporation (FDIC). The Lender is responsible for 
maintaining escrow funds in a reasonable and prudent manner and for 
assuring that real estate taxes and assessments and required hazard and 
flood insurance are paid in a timely manner even if it requires 
advancing the Lender's own funds. The monthly payment may be adjusted 
when it is not adequate to meet established charges of the escrow 
account for the coming year. Escrow funds may be used only for the 
purpose for which they were collected.
    (3) Obtaining compliance with the covenants, loan agreement (if 
any), security instruments, and any supplemental agreements and 
notifying the borrower in writing of any violations.
    (b) Other servicing requirements. Other servicing requirements 
include taking actions to offset the effects of liens, probate 
proceedings, and other legal actions. The Lender's responsibility 
includes assuring that:
    (1) Insurance loss payments, condemnation awards, or similar 
proceeds are applied on debts in accordance with lien priorities on 
which the guarantee was based, or to rebuild or otherwise acquire 
needed replacement collateral.
    (2) The borrower complies with laws and ordinances applicable to 
the loan and the collateral.
    (3) The borrower is not released of liability for the loan except 
as provided in Agency regulations.
    (c) Servicing options. The Lender should make every effort to 
assist borrowers who are cooperative and willing to make a good faith 
effort to cure the delinquency. The Lender should consider the 
borrower's financial condition in attempting to work out repayment 
agreements. The Lender may revise the payment schedule of the loan on a 
temporary basis with the written concurrence of the borrower. Changes 
in the loan repayment such as reamortization of the unpaid balance 
within the remaining term of the loan may be done with prior written 
RHCDS concurrence. Reamortization shall not change the amount of the 
loan guarantee.
    (d) Lender reporting to RHCDS. Reports on Lender servicing case 
loads and performance are required as follows:
    (1) Monthly report. The Lender must prepare and submit a report in 
a manner prescribed by RHCDS identifying each borrower with a loan that 
is more than 30 days delinquent.
    (2) Annual report. The Lender will submit an annual report 
indicating the status of each borrower account as of December 31 using 
the format prescribed by RHCDS.
    (e) [Reserved]


Sec. 1980.371  Defaults by the borrower.

    Default occurs when the borrower fails to perform under any 
covenant of the mortgage or Deed of Trust and the failure continues for 
30 days. The Lender will negotiate in good faith in an attempt to 
resolve any problem. The borrower must be given a reasonable 
opportunity to bring the account current before any foreclosure 
proceedings are started.
    (a) The Lender must make a reasonable attempt to contact the 
borrower if the payment is not received by the 20th day after it is 
due.
    (b) The Lender must make a reasonable attempt to arrange and hold 
an interview with the borrower for the purpose of resolving the 
delinquent account before the loan becomes 60 days delinquent. 
Reasonable effort consists of not less than one letter sent to the 
borrower at the property address via certified mail or similar method 
which the borrower refuses to accept or fails to respond.
    (c) If the Lender is unable to make contact with the borrower, the 
Lender must determine whether the property has been abandoned and the 
value of the security is in jeopardy before the account becomes two 
payments delinquent.
    (d) When the loan becomes three payments delinquent, the Lender 
must report borrower delinquencies to credit repositories and make a 
decision with regard to liquidation of the account. The Lender may 
proceed with liquidation of the account unless there are extenuating 
circumstances.


Sec. 1980.372  Protective advances.

    Protective advances must constitute an indebtedness of the borrower 
to the Lender and be secured by the security instrument. Protective 
advances are advances made for expenses of an emergency nature 
necessary to preserve or protect the physical security. Attorney fees 
are not a protective advance. The Lender will not make protective 
advances in lieu of an additional loan. In order to assure that a 
protective advance over $500 will be included in the loss payment, 
Lenders are encouraged to obtain prior RHCDS approval. [[Page 27000]] 


Sec. 1980.373  [Reserved]


Sec. 1980.374  Liquidation.

    If the Lender concludes the liquidation of a guaranteed loan 
account is necessary because of one or more defaults or third party 
actions that the borrower cannot or will not cure or eliminate within a 
reasonable period of time, the Lender will notify RHCDS of the decision 
to liquidate. Initiation of foreclosure begins with the first public 
action required by law such as filing a complaint or petition, 
recording a notice of default, or publication of a notice of sale. 
Foreclosure must be initiated within 90 days of the date the decision 
to liquidate is made unless the foreclosure has been delayed by law. 
When there is a legal delay (such as bankruptcy), foreclosure must be 
started within 60 days after it becomes possible to do so.
    (a) Expeditious liquidation. Once the decision to liquidate has 
been made, the Lender must proceed in an expeditious manner. Lenders 
must exercise due diligence in completing the foreclosure process. 
Lenders are expected to complete foreclosure within the time frames 
that are reasonable for the state in which the property is located.
    (b) Maximum collection. The Lender is expected to make the maximum 
collection possible on the indebtedness. The Lender will consider the 
possibility of recovery of any deficiency apart from the acquisition or 
sale of collateral. The Lender will submit a recommendation on such 
recovery considering the borrower's assets and ability to pay, 
prospects of future recovery, the costs of pursuing such recovery, 
recommendation for obtaining a judgment, and the collectability of a 
judgment in view of the borrower's assets.
    (c) Allowable liquidation costs. Certain reasonable liquidation 
costs (costs similar to those charged for like services in the area) 
will be allowed during the liquidation process. No in-house expenses of 
the Lender will be allowed including, but not limited to, employee 
salaries, staff lawyers, travel, and overhead. Liquidation costs are 
deducted from the gross sales proceeds of the collateral when the 
Lender has conducted the liquidation.
    (d) Servicing plan. The Lender must submit a servicing plan to 
RHCDS when the account is 90 days delinquent and a method other than 
foreclosure is recommended to resolve delinquency. RHCDS encourages 
Lenders and delinquent borrowers to explore an acceptable alternative 
to foreclosure to reduce loss and expenses of foreclosure. Although 
prior approval is not required in all cases, the Agency may reject a 
plan that does not protect the Government's interest.
    (1) Continuation with the borrower. The Lender may continue with 
the borrower when a clear and realistic plan to eliminate the 
delinquency is presented. The Lender must fully document the borrower's 
prospects of success and make this information available to RHCDS upon 
request.
    (2) Voluntary liquidation. RHCDS may accept the Lender's plan to 
use voluntary liquidation when the plan clearly addresses the 
responsibilities of the parties, the Lender maintains oversight of the 
progress of the sale, the property is listed for sale at a price in 
line with its market value (if there is not already a bona fide 
purchaser for the dwelling), and the expected cost to the Government is 
the same as or less than the cost of foreclosure.
    (3) Deed-in-lieu of foreclosure. The Lender may take a deed-in-lieu 
of foreclosure from the borrower when it will not result in a cost to 
the Government in excess of that expected for foreclosure.
    (4) Other methods. RHCDS may accept a proposal submitted by the 
Lender that is not specifically addressed in but is consistent with the 
provisions of this subpart if the Lender fully documents how the 
proposal will result in a savings to the Government.
    (e) Handling shared equity. Interest assistance payments made under 
Sec. 1980.390 of this subpart will not be subject to shared equity if 
the loan is liquidated in accordance with the Lender Agreement unless:
    (1) The property is sold at or prior to foreclosure for an amount 
exceeding the Lender's unpaid balance and costs of foreclosure, or
    (2) A junior lienholder takes over the Lender's loan.


Sec. 1980.375  Reinstatement of the borrower's account.

    The Lender may reinstate an account when all delinquent payments 
and any funds that were advanced to pay authorized expenses are paid or 
as required under state law. When the Lender wishes to consider other 
offers by the borrower to bring the account current, the Lender must 
obtain RHCDS concurrence.


Sec. 1980.376  Loss payments.

    Settlement of the guarantee will be processed in accordance with 
this section.
    (a) Loss payment. Loss payments will be made within 60 days of the 
Lender's properly filed claim. The Lender must submit its loss claim 
within 30 calendar days of loan liquidation. The claim may include 
interest on the unpaid principal accrued to final loss settlement. 
RHCDS will pay interest within the limits of the guarantee to the date 
the claim is paid when the Lender promptly and properly files the 
claim.
    (1) Determination of loss payment. To calculate the loss payment, 
first determine the unpaid debt by adding the unpaid principal and 
interest on the loan and the unpaid balance for principal and interest 
on authorized protective advances. The net proceeds from the property 
will be first applied to the unpaid debt. Any other proceeds recovered 
by the Lender from other sources shall also be applied to the total 
unpaid debt. Determination of net proceeds will be different depending 
on which of the following circumstances are involved.
    (i) If, at liquidation, title to the property is conveyed to a bona 
fide third-party purchaser, then final loss payment will be based on 
the net sales proceeds received for the property.
    (ii) If, at liquidation, title to the property is conveyed to the 
Lender, then the Lender must prepare and submit a property disposition 
plan to RHCDS for RHCDS concurrence. The plan will address the Lender's 
proposed method for sale of the property, the estimated value and 
minimum sale price, itemized estimated costs of the sale, and any other 
information that could impact the amount of loss on the loan. The 
Lender is allowed up to 6 months from the date the property is acquired 
to sell the property. Upon the Lender's written request, RHCDS will 
authorize one extension not to exceed 30 days to close the sale of a 
purchase offer accepted near the end of the 6-month period. Net 
proceeds will be based on the net proceeds received for the property 
when the sale is conducted in accordance with the plan as approved by 
RHCDS. If no sale offer is accepted within the 6-month period, then the 
RHCDS approval official will obtain and use a liquidation value 
appraisal of the property. When an appraisal is obtained, the amount of 
the net proceeds from the security is then determined by subtracting a 
cost factor, which is found in exhibit D of FmHA Instruction 1980-D 
(available in any RHCDS office), from the current market value.
    (iii) If a deficiency judgment is obtained, the Lender must enforce 
the judgment against the borrower before loss settlement if the current 
situation provides a reasonable prospect of recovery. A loss payment 
will be made when the Lender holds a deficiency judgment but there are 
not current [[Page 27001]] prospects of collection, even if there may 
be in the future.
    (2) Payment procedure. RHCDS will pay losses on the loan according 
to the terms of the loan note guarantee unless RHCDS has determined 
there is cause for reduction of the loss amount. See Sec. 1980.377 for 
future recovery by the Lender.
    (i) If there is no dispute between RHCDS and the Lender regarding 
the amount of the loss and the Lender's eligibility for payment of 
loss, RHCDS will pay the loss within the limits of the guarantee.
    (ii) If RHCDS and the Lender do not agree on the amount of the 
loss, or RHCDS has determined that part of the loss is not payable to 
the Lender under the terms of the loan note guarantee, RHCDS will pay 
the undisputed portion. The disputed portion of the claim will be 
treated as an adverse decision and the Lender may appeal.
    (iii) When RHCDS has cause to believe that Lender fraud or other 
lender actions negating the guarantee exist, no loss payment may be 
made unless the situation is resolved.
    (3) The RHCDS approval official will conduct an audit of the 
account and review the loan in its entirety to determine why the loan 
failed and whether any reason exists for reducing or denying the loss 
claim. This information will be documented in the RHCDS casefile.
    (4) If a Lender's loss claim is denied or reduced, the RHCDS 
approval official will notify the Lender of all of the reasons for the 
action within 10 days of the decision and the Lender may appeal in 
accordance with Sec. 1980.399 and subpart B of part 1900.
    (5) The RHCDS approval official is authorized to approve loss 
payments in amounts of up to 50 percent of his/her delegated loan 
approval authority in accordance with exhibit D of FmHA Instruction 
1901-A (available in any RHCDS office).
    (b) Denial or reduction of loss claims. The RHCDS approval official 
will fully document any loss claim which is denied or reduced including 
an analysis of how the amount of the reduction was determined. A 
connection must be made between the Lender's action or failure to act 
and the loss amount on the loan. The amount of loss occasioned by such 
action will be established. This information will be made available to 
the Lender upon request. A Lender's loss claim may be denied or reduced 
by RHCDS when:
    (1) The Lender has committed fraud. (Denial of claim.)
    (2) The Lender claims items not authorized under RHCDS regulations. 
(Reduced by amount of unauthorized claim.)
    (3) The Lender violated usury laws. (Reduction for amount of loss 
caused by the violation.)
    (4) The Lender failed to obtain required security or maintain the 
security position. (Reduction for loss attributed to failure.)
    (5) Loan funds were used for unauthorized purposes. (Reduction by 
unauthorized amount.)
    (6) The Lender was negligent in loan servicing. Negligent servicing 
is a failure to perform those services which a reasonably prudent 
Lender would perform in servicing its own portfolio of loans that are 
not guaranteed. The term includes a failure to act, a failure to act in 
a timely manner, or acting in a manner contrary to that in which a 
reasonably prudent Lender would act. (Reduction for loss amount 
attributable to Lender negligence.) Examples of negligent servicing 
include:
    (i) A failure to contact the borrower in a timely manner when the 
borrower's account goes into default.
    (ii) A failure to pay real estate taxes or hazard insurance when 
due.
    (iii) A failure to notify RHCDS within required time limits when 
the borrower defaults on the loan.
    (iv) A failure to request loan subsidy when the borrower was 
eligible for loan subsidy and loan subsidy was available (subsidized 
loans only).
    (v) A failure to protect security during the liquidation phase.
    (7) The Lender delayed filing the loss claim. (Reduction in claim 
for interest accrued because the claim was not filed.)


Sec. 1980.377  Future recovery.

    The proceeds of any amounts recovered shall be shared in proportion 
to the amount of loss borne between RHCDS and the Lender. Although the 
Lender's actual loss may be different than the amount on which loss 
settlement was based, the proportion of recovery sharing must be based 
on the loss percentage upon which the loss payment calculation was 
based.


Secs. 1980.378-1980.389  [Reserved]


Sec. 1980.390  Interest assistance.

    In order to assist low-income borrowers in the repayment of the 
loan, RHCDS is authorized to provide interest assistance payments 
subject to the availability of funds. Regardless of what date a 
borrower's loan payment is due each month, interest assistance payments 
will be made by RHCDS directly to the Lender on or before the 15th day 
of the month in which the borrower's payment is due.
    (a) Policy. It is the policy of RHCDS to grant interest assistance 
on guaranteed loans to low-income borrowers to assist them in obtaining 
and retaining decent, safe, and sanitary dwellings and related 
facilities as long as the borrower remains eligible for payments when 
funds are available for interest assistance. Interest assistance must 
be established for the borrower at the time the loan guarantee is 
authorized.
    (b) Processing interest assistance agreements. The Lender will 
process the interest assistance agreement and submit it to RHCDS for 
approval.
    (1) RHCDS will reimburse the Lender in the amounts authorized in 
exhibit D of FmHA Instruction 1980-D (available in any RHCDS office) 
for the cost of processing the agreement. The fee will be paid upon 
receipt of a valid agreement which has been coded as requiring a 
processing fee payment. The processing fee is payable when:
    (i) A new agreement is made with the borrower except at the time of 
loan closing.
    (ii) The borrower had an agreement for the previous year and a new 
agreement is made for the current year.
    (iii) The borrower is eligible for but not presently on interest 
assistance and enters into a new interest assistance agreement.
    (iv) The borrower has a change in circumstances which requires a 
revision to the current agreement. When the change in circumstances 
results in an agreement with less than 90 days remaining, the agreement 
for the subsequent year will be prepared at the same time. This action 
is considered one agreement.
    (2) A processing fee will not be paid when the revision to an 
existing agreement is required due to an error on the part of the 
Lender or the borrower.
    (c) Amount of interest assistance. (1) The amount of interest 
assistance granted will be the difference between the monthly 
installment due on the promissory note eligible for interest assistance 
and the amount the borrower would pay if the note were amortized at the 
rate corresponding to the borrower's income range as outlined in the 
master interest assistance agreement.
    (2) The basis for the amount of interest assistance for each loan 
is determined by the amount of interest assistance authorized to the 
Agency as shown in exhibit D of FmHA Instruction 1980-D (available in 
any RHCDS office) and the note interest rate.
    (3) A borrower receiving a loan in a high cost area will be granted 
an additional 1 percent interest assistance in order to assist the 
borrower up to the [[Page 27002]] maximum rate in exhibit D of FmHA 
Instruction 1980-D (available in any RHCDS office).
    (i) The Administrator may designate an area as a high cost area for 
interest assistance purposes. Such designation may be granted when the 
State Director makes a written request for it and provides 
documentation that low-income borrowers in the area could not afford to 
purchase a dwelling under the interest assistance table in exhibit D of 
FmHA Instruction 1980-D (available in any RHCDS office). The area must 
also be designated by HUD as a high cost area. The amount of additional 
interest assistance for high cost areas is 1 percent; however, in no 
case will more interest assistance be granted than the amount necessary 
to reach the lowest floor rate in exhibit D of FmHA Instruction 1980-D 
(available in any RHCDS office).
    (ii) The change in a designation to (or from) a high cost area will 
not affect existing loans. An individual's loan eligibility for high 
cost designation is determined at the time of issuance of the 
conditional commitment for loan guarantee.
    (d) Shared equity. Prior to loan closing, the Lender will advise 
the applicant that interest assistance is subject to equity sharing.
    (e) Eligibility. To be eligible for interest assistance, a borrower 
must personally occupy the dwelling and must meet the following 
additional requirements:
    (1) Initial loans. Interest assistance may be granted at the time 
the loan note guarantee is issued, or an assumption is processed in 
accordance with Sec. 1980.366, when:
    (i) The borrower's adjusted income at the time of loan guarantee 
approval did not exceed the applicable low-income limit, the loan 
guarantee was funded from interest assisted guaranteed loan funds, and 
a master interest assistance agreement was completed at closing if the 
borrower is ever to receive interest assistance.
    (ii) The borrower's net family assets do not exceed the maximum 
allowable amount as per exhibit D of FmHA Instruction 1980-D (available 
in any RHCDS office) unless an exception is authorized. The calculation 
of net family assets will exclude the value of the dwelling and a 
minimum adequate dwelling site, cash on hand which will be used to 
reduce the amount of the loan, and household goods and personal 
automobiles and the debts against them. The Lender may request an 
exception at the time the initial application is submitted to RHCDS for 
a loan guarantee. For the purpose of determining whether an exception 
is justified, consideration will be given to the nature of the assets 
upon which a borrower is currently dependent for a livelihood or which 
could be used to reduce or eliminate the need for interest assistance.
    (iii) The loan was approved as a subsidized guaranteed loan on or 
after April 17, 1991.
    (iv) The amount of interest assistance will be $20 or more per 
month in accordance with the provisions of paragraph (c)(1) of this 
section. Interest assistance in amounts of less than $20 per month will 
not be granted.
    (2) Existing loans. Interest assistance may be granted at any time 
after loan closing if:
    (i) The requirements of paragraphs (e)(1)(i), (e)(1)(iii), and 
(e)(1)(iv) of this section are met.
    (ii) The borrower's adjusted annual income does not exceed the low-
income limit.
    (iii) The borrower requests interest assistance through the Lender 
or the Lender determines that interest assistance is needed to enable 
the borrower to repay the loan.
    (iv) The Lender processes the interest assistance agreement and 
submits it to RHCDS for approval.
    (f) Processing interest assistance. The Lender will process 
interest assistance agreements in accordance with this section. The 
interest assistance agreement will be executed by the Lender and 
borrower and forwarded to RHCDS for approval.
    (1) Amount of interest assistance. The amount of interest 
assistance for which a borrower is eligible will be determined by use 
of the interest assistance agreement as outlined in paragraph (c) of 
this section.
    (i) Determination of income. The Lender is responsible for 
determining the borrower's annual and adjusted annual income as 
outlined in Secs. 1980.347 and 1980.348 of this subpart. Income of all 
persons occupying the dwelling will be verified in accordance with 
Sec. 1980.347 of this subpart.
    (ii) Effective period. Annual interest assistance agreements will 
be for a 12-month period.
    (2) Interest assistance agreements. The master interest assistance 
agreement will be executed for each qualifying loan at loan closing 
provided funds are available for interest assistance at the time the 
guarantee is issued. This agreement establishes the conditions and 
maximum amounts of interest assistance for the life of the loan. Each 
year, an annual interest assistance agreement will be used to determine 
the amount of interest assistance for the coming 12 months.
    (i) The Lender will determine the borrower's adjusted annual 
income, document the calculations, and complete the interest assistance 
agreement form.
    (ii) The borrower will review the interest assistance agreement 
form and sign the form signifying that all information is correct as 
shown.
    (iii) If the information contained on the interest assistance 
agreement appears correct, RHCDS will approve the agreement and make 
monthly payments to the Lender on behalf of the borrower.
    (iv) When the borrower's income is within the low-income limits but 
the provisions of paragraphs (e)(1)(ii) or (e)(1)(iv) of this section 
preclude granting interest assistance, the master interest assistance 
agreement must be executed if the borrower desires to be considered for 
interest assistance at a later date due to a change in circumstances.
    (g) Interest assistance modification. A change in the borrower's 
circumstances after the effective date of the Annual Interest 
Assistance Agreement will be handled as follows:
    (1) RHCDS required modifications before expiration. The borrower is 
responsible for reporting any increases in income exceeding $100 per 
month to the Lender. The Lender is not responsible for monitoring the 
borrower's income. The Lender must process a revised interest 
assistance agreement when a reported increase in the borrower's income 
results in the need for less interest assistance in accordance with 
paragraph (c) of this section.
    (2) Additional interest assistance before expiration. The borrower 
may request and the Lender may process a modification of the interest 
assistance agreement and submit the modified agreement to RHCDS when:
    (i) The borrower's adjusted annual income decreases by more than 
$100 per month;
    (ii) The interest assistance calculation per paragraph (c) of this 
section indicates that the borrower is eligible for an additional $20 
interest assistance per month; and
    (iii) There are interest assistance funds available if the amount 
needed by the borrower exceeds the initial floor rate established at 
the time the loan was closed per paragraph (c) of this section.
    (3) Other changes in the borrower's circumstances. When one 
coborrower has left the dwelling, interest assistance based on the 
remaining coborrower's income may be extended if: [[Page 27003]] 
    (i) The remaining coborrower is occupying the dwelling, owns a 
legal interest in the property, and is liable for the debt;
    (ii) The remaining coborrower certifies as to who lives in the 
house;
    (iii) Separation is not due only to work assignment or military 
orders; and
    (iv) The remaining coborrower is informed and agrees that should 
the coborrower begin to live in the dwelling, that coborrower's income 
will then be counted toward annual income and interest assistance may 
be reduced or canceled.
    (4) Effect of modification. An interest assistance agreement 
modified as per paragraph (g)(1), (g)(2), or (g)(3) of this section is 
valid for the remainder of the agreement period.
    (5) Correction of interest assistance agreement. When an error by 
RHCDS or the Lender resulted in too little interest assistance being 
granted, a corrected agreement will be prepared effective the date of 
the error if the error results in granting $20 or more per month less 
interest assistance than the borrower was eligible to receive. The 
Lender must return any overpayment made by the borrower unless an 
agreement is reached to apply the funds to the loan as an extra 
payment.
    (h) Eligibility review. Borrowers receiving interest assistance 
will be reviewed annually within 30 to 60 days prior to the anniversary 
date of the loan. All existing agreements must be reviewed and 
processed for the upcoming 12 months during the review period. Interest 
assistance will not be renewed if the amount that the borrower 
qualifies for is less than $20 per month.
    (1) The Lender will obtain written verification of the income of 
each borrower and all adult members of the borrower's household and 
conduct the review.
    (i) Borrower responsibility. The borrower will:
    (A) Report the income of each adult member of the household to the 
Lender;
    (B) Assure that each household member has provided sufficient 
information on that person's income for the Lender to conduct the 
review; and
    (C) Cooperate in the Lender's efforts to verify income.
    (ii) [Reserved]
    (2) Processing interest assistance renewals not reviewed during the 
review period. The Lender may process interest assistance renewals not 
completed during the review period as follows:
    (i) The amount of interest assistance will be based on the 
borrower's current annual income.
    (ii) The effective date will be:
    (A) The expiration period of the previous interest assistance 
agreement if the RHCDS approval official determines failure to renew 
was the fault of RHCDS or the Lender.
    (B) The next payment due date following approval in all other 
cases.
    (3) Interest assistance form. Interest assistance payments will not 
be made after the expiration date unless RHCDS receives and approves a 
new interest assistance agreement form.
    (i) Cancellation of interest assistance. (1) An existing interest 
assistance agreement will be canceled under the following 
circumstances:
    (i) When the borrower has never occupied the dwelling, the interest 
assistance will be canceled as of the date of issuance of the 
guarantee. The Lender will refund all interest assistance payments to 
RHCDS.
    (ii) The cancellation will be effective on the date on which the 
earliest action occurs which causes the cancellation or the date the 
Lender became aware of the situation if the date cannot be determined 
when:
    (A) The borrower ceases to occupy, sells, or conveys title to the 
dwelling.
    (B) The borrower has received improper interest assistance and a 
corrected agreement will not be submitted.
    (C) The borrower has had an increase in income and is no longer 
eligible for interest assistance.
    (D) The security is acquired by the Lender.
    (E) The Lender formally declares the loan to be in default and 
accelerates the loan.
    (2) [Reserved]
    (j) Overpayment. When the Lender becomes aware of circumstances 
that have resulted in an overpayment of interest assistance for any 
reason, except as provided in paragraph (k) of this section, the 
following actions will be taken:
    (1) The Lender will immediately notify RHCDS.
    (2) The borrower will be notified and the interest assistance 
agreement will be corrected.
    (3) A repayment agreement acceptable to RHCDS will be reached.
    (k) Unauthorized use of loan funds. When RHCDS becomes aware that 
the Lender allowed loan funds to be used for unauthorized purposes, 
interest assistance paid on said amounts will be promptly repaid by the 
Lender. The Lender may work out a repayment agreement with the borrower 
but is expected to make every effort to minimize the adverse impact on 
the borrower's repayment ability.
    (l) Appeals. All applicants/borrowers and Lenders may appeal 
adverse determinations in accordance with Sec. 1980.399 when RHCDS 
denies, reduces, cancels, or refuses to renew interest assistance.
    (m) Reinstatement of interest assistance. The RHCDS approval 
official may authorize reinstatement of the borrower's interest 
assistance if it was canceled because the loan was accelerated and if 
the acceleration was withdrawn with RHCDS approval.


Sec. 1980.391  Equity sharing.

    The policy of RHCDS is to collect all or a portion of interest 
assistance granted on a guaranteed RH loan when any of the events 
described in paragraph (a) of this section occur, if any equity exists 
in the security.
    (a) Determining the amount of shared equity. The RHCDS approval 
official will calculate shared equity when a borrower's account is 
settled by payment-in-full (including refinancing) of the outstanding 
indebtedness, the transfer of title, or when the borrower ceases to 
occupy the property. The calculation of shared equity when the account 
is in liquidation will be handled in accordance with Sec. 1980.374(e).
    (1) How to calculate. The amount of shared equity will be based on 
the amount of interest assistance granted on the loan, the appreciation 
in property value between the closing date of the loan and the date the 
account is satisfied or acquired by the Lender via liquidation action, 
the period of time the loan is outstanding, the amount of original 
equity the borrower has in the property, and the value of capital 
improvements to the property. Shared equity will be the lesser of the 
interest assistance granted or the amount of value appreciation 
available for shared equity. Value appreciation available for shared 
equity means the market value of the property less all debts secured by 
prior liens, sales expenses, any original borrower equity, principal 
reduction, and value added by any capital improvements.
    (i) Market value. Market value of the property as of the date the 
loan is to be paid in full or the date the borrower ceases to occupy 
and will be documented by one of the following:
    (A) A sales contract which reasonably represents the fair market 
value based on the Lender's and RHCDS approval official's knowledge of 
the property and the area.
    (B) Lender's appraisal when the loan will be refinanced provided 
the appraisal reasonably represents the fair market value.
    (C) If the items listed in either paragraph (a)(l)(i)(A) or 
(a)(1)(i)(B) of this section are not available, another 
[[Page 27004]] current appraisal, if readily available, when the 
appraiser meets the qualifications of Sec. 1980.334.
    (D) When the account is being paid off from insurance proceeds, the 
most recent appraisal available if the Lender or RHCDS can document 
that it represents an accurate indication of the value at the time the 
dwelling was damaged or destroyed. If not, the best information 
available will be used to determine the market value. The RHCDS 
approval official will interview the borrower to determine the extent 
of improvements, if any, and the general condition of the property at 
the time of loss. The amount of the insurance payment is generally a 
good indication of value; however, tax records or comparable sales will 
be considered.
    (E) RHCDS appraisal, with prior approval of the State Director.
    (ii) Prior liens. Prior liens refers to the amount of liens that 
are prior to the Lender's liens and include, but may not be limited to, 
prior mortgages, and real estate taxes and assessments levied against 
the property.
    (iii) Sale/refinancing expenses. Sale/refinancing expenses include, 
but are not limited to, expenses commonly associated with the sale or 
refinancing of real estate that are not reimbursed, such as sales 
commissions, advertising costs, recording fees, pro rata taxes, points 
based on the current interest rate, appraisal fees, transfer tax, deed 
preparation fee, loan origination fee, etc. In refinancing situations, 
only those expenses necessary to finance the amount of the current 
RHCDS debt are allowed. Shared equity may be calculated using estimated 
expenses if actual expenses cannot be obtained and the RHCDS approval 
official is satisfied with the estimated amount and the prorating of 
the expenses are accurate for this transaction.
    (iv) Original borrower equity. Original equity consists of a 
contribution by the borrower that reduces the amount of the loan below 
the market value. The contribution may be in the form of cash and/or 
value of the lot if the home was constructed on the borrower's 
property.
    (v) Capital improvements. Capital improvements will be considered 
to the extent that they do not exceed market value contribution as 
indicated by a sales comparison analysis. Generally, the value added by 
improvements will be the difference in market value at the time of sale 
and market value without capital improvements. Cost of the improvement 
will not be considered, only contribution to value. Maintenance cost 
and replacement of short-lived depreciable items are normal expenses 
associated with home ownership and are not considered capital 
improvements.
    (2) Other considerations. (i) Overpayments of interest assistance. 
When RHCDS has overpaid interest assistance and the overpaid amounts 
remain uncollected at the time shared equity is calculated, the 
overpaid amount will be added to shared equity.
    (ii) Multiple loans. When a borrower has more than one loan and 
elects to pay only some of the loans, shared equity will not be 
calculated unless the remaining loan is not subject to shared equity. 
Shared equity will be calculated when the account is paid in full 
taking into consideration all of the interest assistance granted on the 
account.
    (b) Miscellaneous provisions--(1) Changes in terms. Shared equity 
will not be calculated when an account is reamortized.
    (2) Junior liens. Junior liens are not considered in the shared 
equity calculation. In the event a junior lienholder forecloses, the 
RHCDS approval official will calculate shared equity before providing 
the lienholder with a pay-off figure, which is in addition to any 
amounts still due the Lender on the loan in the same manner as 
paragraph (a) of this section.
    (c) Affordable housing proposals. Shared equity under an affordable 
housing innovation (such as limited equity or a state or county 
sponsored shared equity) will be calculated in accordance with this 
subpart unless prior written approval is obtained from RHCDS. Proposals 
that deviate from this subpart must be reviewed and approved in the 
National office prior to issuance of the loan note guarantee.


Sec. 1980.392  Mortgage Credit Certificates (MCCs) and Funded Buydown 
Accounts.

    (a) MCCs. MCCs are authorized under the Tax Reform Act of 1986 and 
allow the borrower to receive a Federal tax credit for a percentage of 
their mortgage interest payment. They may be used by RHCDS guaranteed 
RH borrowers to improve their repayment ability for the loan. MCCs 
impact on the borrower's tax liability. MCCs may be used with interest 
assisted loans when the amount of the tax credit is based on the amount 
of interest actually paid by the borrower. MCCs are subject to shared 
equity of a portion of any ``gain'' realized on the property when sold 
within 10 years after purchase. If the loan is also an RHCDS interest 
assisted loan, RHCDS shall receive priority for shared equity 
repayment. Income taxes are complex issues; RHCDS employees and Lenders 
are not expected to be able to identify all issues impacting the 
borrower's taxes. Lenders should encourage borrowers to consult with a 
tax advisor.
    (1) When the Lender is participating in an MCC program the amount 
of the tax credit is considered as an additional resource available for 
repayment of the loan when the credit is taken on a monthly basis from 
withholding.
    (2) The Lender will submit a copy of the MCC and a copy of the 
applicant's Form IRS W-4, ``Employee's Withholding Allowance 
Certificate,'' along with the other materials for the loan guarantee 
request. The amount of tax credit is limited to the applicant's maximum 
tax liability.
    (i) The MCC must show the rate of credit allowed.
    (ii) The Form IRS W-4 must reflect that the borrower is taking the 
tax credit on a monthly basis.
    (iii) The Lender will certify that the borrower has completed and 
processed all of the necessary documents to obtain the tax credit in 
accordance with this section.
    (b) Funded buydown accounts. A funded buydown account is a prepaid 
arrangement between a builder or a seller and a Lender that is designed 
to improve applicant's repayment ability. Funded buydown accounts are 
permitted when the Lender obtains prior RHCDS concurrence. RHCDS will 
consider buydown accounts when there are compensating factors which 
indicate the borrower's ability to meet the expected increases in loan 
payment. The seller, Lender or other third party must place funds in an 
escrow account with monthly releases scheduled directly to the Lender 
to reduce the borrower's monthly payment during the early years of the 
loan. The maximum reduction which may be considered is 2 percent below 
the note rate, even though the actual buydown may be for more. 
Reductions in buydown assistance may not result in an increase in the 
interest rate paid by the borrower of more than 1 percent per year. The 
borrower shall not be required to repay escrowed buydown funds. Funds 
must be escrowed with a state or federally supervised Lender. Funded 
buydown accounts must be fully funded for the buydown period. Buydown 
periods must be at least 12 months for each 1 percent of the buydown.


Secs. 1980.393-1980.396  [Reserved]


Sec. 1980.397  Exception authority.

    The Administrator may, in individual cases, make an exception to 
any requirement or provision of this subpart or address any omission of 
this subpart which is not inconsistent with the authorizing statute or 
other applicable [[Page 27005]] law if the Administrator determines 
that application of the requirement, or provision, or failure to take 
action in the case of an omission would adversely affect the 
Government's financial interest. The Administrator will exercise this 
authority upon request of the State Director with the recommendation of 
the Assistant Administrator for Housing. Requests for exception must be 
made in writing accompanied by the borrower's casefile in cases 
involving specific borrowers and supported with documentation to 
explain the adverse effect, propose alternative courses of action, and 
to show how the adverse effect will be eliminated or minimized if the 
exception is granted.


Sec. 1980.398  Unauthorized assistance and other deficiencies.

    (a) Unauthorized assistance. Unauthorized assistance includes, but 
is not limited to, issuance of a loan note guarantee when the borrower 
was not eligible for the loan or the borrower was eligible but the loan 
was not made for authorized purposes. Unauthorized assistance in the 
form of interest assistance is discussed in Sec. 1980.390.
    (b) Initial determination of unauthorized assistance. The reasons 
for unauthorized assistance being received by the Lender may include:
    (1) Submission of false or inaccurate information by the Lender;
    (2) Submission of false or inaccurate information by the borrower;
    (3) Error by RHCDS personnel; or
    (4) Error by the Lender.
    (c) [Reserved]
    (d) [Reserved]
    (e) Categories of unauthorized assistance.
    (1) Minor deficiency. A minor deficiency is one that does not 
change the eligibility of the borrower, the eligibility of the 
property, or amount of the loan. Such incidents will be brought to the 
Lender's attention in writing. Examples of minor deficiencies include 
improperly completed builder certifications, use of an outdated credit 
report, or use of an outdated income verification. Minor deficiencies 
also include those significant deficiencies when the Lender is willing 
and able to correct the problem such as obtaining flood insurance for a 
dwelling located in a flood hazard area and assuring the escrow amount 
is sufficient.
    (2) Significant deficiency. A significant deficiency is one that 
creates a significant risk of loss to the Government, or involves 
acceptance of a borrower or property not permitted by Agency 
regulations. Such cases may result in probation or withdrawal of the 
Lender's approval for program participation. Examples of significant 
deficiencies include gross miscalculation of income, acceptance of 
property that is severely deficient of the required standards, missing 
builder certifications, and construction changes that materially affect 
value without proper change orders.
    (3) Fraud or misrepresentation. A deficiency that involves an 
action by the Lender to misrepresent either the financial capacity of 
the borrower or the condition of the property being financed may, in 
addition to any criminal and civil penalties, result in a withdrawal of 
RHCDS approval, or debarment. Examples of this type of deficiency 
include falsified Verifications of Employment, false certifications, 
reporting a delinquent loan as being current, and omitting conditions 
relating to the health and safety of a property.
    (f) Borrower noncompliance. When the borrower receives unauthorized 
assistance due to an error or oversight, the Lender may continue with 
the guaranteed loan. More serious violations will be viewed on a case-
by-case basis by the National office.
    (g) RHCDS error oversight. When the borrower receives unauthorized 
assistance solely due to an error or oversight by RHCDS, the Lender may 
continue with the guaranteed loan.


Sec. 1980.399  Appeals.

    The borrower and the Lender respectively can appeal an RHCDS 
administrative decision that directly and adversely impacts them. 
Decisions made by the Lender are not covered by this paragraph even if 
RHCDS concurrence is required before the Lender can proceed. Appeals 
will be conducted in accordance with the rules of the National Appeals 
Division, USDA.
    (a) Appealable decisions. (1) The borrower and the Lender must 
jointly execute the written request for an alleged adverse decision 
made by RHCDS. The Lender need not be an active participant in the 
appeal process.
    (2) The Lender only may appeal cases where RHCDS has denied or 
reduced the amount of a loss payment to the Lender.
    (b) Nonappealable decisions. (1) The Lender's decision as to 
whether to make a loan is not subject to appeal.
    (2) The Lender's decision to deny servicing relief is not subject 
to appeal.
    (3) The Lender's decision to accelerate the account is not subject 
to appeal.


Sec. 1980.400  [Reserved]

    Dated: March 22, 1995.
Michael V. Dunn,
Acting Under Secretary for Rural Economic and Community Development.
[FR Doc. 95-11943 Filed 5-19-95; 8:45 am]
BILLING CODE 3410-07-U