[Federal Register Volume 62, Number 88 (Wednesday, May 7, 1997)]
[Proposed Rules]
[Pages 24874-24886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11808]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 36

RIN 2900-AI16


Loan Guaranty: Credit Standards

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend VA's loan guaranty regulations 
regarding credit standards used by lenders to evaluate the 
creditworthiness of veteran-borrowers for home loans. VA is committed 
to regular review and revision of the standards used to determine the 
creditworthiness of veteran-applicants as issues arise and as the 
mortgage industry changes. These proposed changes are designed to keep 
VA in step with the rest of the home mortgage industry, at least to an 
extent appropriate for a Government benefit-related mortgage program. 
This document also requests Paperwork Reduction Act comments concerning 
the collection of information contained in this document.

DATES: Comments must be received on or before July 7, 1997.

ADDRESSES: Mail or hand deliver written comments to: Director, Office 
of Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Avenue, NW, Room 1154, Washington, DC 20420. Comments should 
indicate that they are submitted in response to ``RIN 2900-AI16.'' All 
written comments received will be available for public inspection at 
the above address in the Office of Regulations Management, Room 1158, 
between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday 
(except holidays).

FOR FURTHER INFORMATION CONTACT: Ms. Judith Caden, Assistant Director 
for Loan Policy (264), Loan Guaranty Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW, 
Washington, DC 20420, (202) 273-7368.

SUPPLEMENTARY INFORMATION: VA is proposing to amend its loan guaranty 
regulations regarding credit standards used by lenders to evaluate the 
creditworthiness of veteran-borrowers for home loans. The regulations 
proposed to be amended are set forth at 38 CFR 36.4337.
    Statutory credit criteria applicable to the VA Loan Guaranty 
Program are set forth at 38 U.S.C. 3710. Under the VA Loan Guaranty 
Program, a loan may not be guaranteed unless the veteran is a 
satisfactory credit risk, and the

[[Page 24875]]

contemplated terms of payment required in a mortgage to be given in 
part payment of the purchase price or the construction cost bear a 
proper relation to the veteran's present and anticipated income and 
expenses. When making a credit determination for a VA-guaranteed loan, 
the lender must consider that a veteran's benefit is involved. The law 
intends that the veteran have this benefit provided the requirements of 
the law are met. However, it serves no purpose to approve or make a 
loan to a veteran who will be unable to meet the repayment terms or is 
not a satisfactory credit risk. Such an approval would be, in fact, a 
disservice since it could well result in the veteran losing the home, a 
debt being owed by the veteran to the U.S. Government, and an adverse 
effect on the veteran's credit standing.
    VA is committed to regular review and revision of the standards 
used to determine the creditworthiness of veteran-applicants as issues 
arise and as the mortgage industry changes. VA recognizes that it is 
important to keep in step with the rest of the home mortgage industry, 
at least to an extent appropriate for a Government benefit-related 
mortgage program.
    Accordingly, we are proposing to amend Sec. 36.4337 for the reasons 
discussed below.

Tax-Exempt Income (Paragraphs (d) and (f))

    It is proposed to amend paragraph (d) and to add a new paragraph 
(f)(4) concerning tax-free income when underwriting a loan. Previously, 
VA regulations recognized the impact of tax-free income on the debt-to-
income ratio (generally higher) through noting it as a compensating 
factor. However, the mortgage industry has come to require direct 
recognition through what is generally called ``grossing up.'' This is 
the adjusting of the tax-exempt income upward to a pre-tax or gross 
income amount which, after deducting State and Federal income taxes, 
would equal the tax-exempt income. This enables the calculation of the 
debt-to-income ratio as if the borrower's income were all taxable and 
results in the same ratio as a borrower with after-tax income equal to 
the borrower's tax-exempt income. In recognition of the industry 
practice, and for consistency, this proposed change to VA regulations 
would allow ``grossing up'' for the purpose of calculating the debt-to-
income ratio. The actual tax-exempt income would be required to be used 
in calculating the residual income.

Compensating Factors for Underwriting a Loan (Paragraph (c))

    It is proposed to add two additional factors to the list of 
compensating factors lenders are to consider in the course of 
underwriting a loan. Upon review, it appears to be appropriate to 
expand this list to include tax credits for child care and tax benefits 
of home ownership as additional compensating factors.

Increase in Residual Income Required for Family Support (Paragraph 
(e))

    It is proposed to provide for an increase in the amount of residual 
income required for family support. The computation of the Residual 
Income tables set forth in this paragraph is based upon cost-of-living 
and expenditure data compiled by the U.S. Bureau of Labor Statistics. 
Based upon VA's review of that data, a 4-percent increase in those 
guideline amounts appears to be an appropriate reflection of that data.

Inclusion of Household Members in Residual Income Determinations 
(Paragraph (e))

    It is proposed to clarify that the use of residual income 
guidelines is to be based on consideration of all members of the 
veteran's household. This reflects that all members of a household 
(without regard to the nature of the relationship) are relevant to 
determinations regarding residual income.

Residual Income Tiers (Paragraph (e))

    It is proposed to adjust the breakpoint in the two residual income 
tiers from $70,000 to $80,000. When the tiers were originally 
established in December 1987, the median VA loan was approximately 
$70,000. The median loan amount has risen steadily to its current level 
of approximately $87,000, and it appears that an adjustment would be in 
order. However, since this revision would constitute a slight loosening 
of the credit standards, limiting the increase in the breakpoint in the 
two tiers to $80,000 would be consistent with prudent underwriting 
policy.

Age of Credit Documentation (Paragraphs (f), (g), and (h))

    VA is proposing to change the maximum allowable age of credit 
documentation to 120 days (or 180, in the case of new construction) 
from the date the note is signed. This is proposed in order to 
establish a standard consistent with industry standards and to clarify 
the baseline for determining the maximum allowable age of credit 
documents. Previously, the maximum age was 90 days, and, for automatic 
loans, the baseline was the date of application. The use of the date of 
application as the baseline sometimes resulted in cases in which the 
documents were very old by the time they were used to underwrite the 
borrowers' qualifications. This change would establish a standard more 
closely tied to the time of the underwriting decision, which is usually 
made at a time close to loan closing.

Reserves or National Guard (Paragraph (f))

    VA is proposing a change to include members of the Reserves or 
National Guard in the requirements that pertain to active duty 
applicants within 12 months of release from active duty. Since income 
received by a member of the Reserves or National Guard can be important 
to a borrower's ability to qualify for a loan and since Reserves and 
National Guard are subject to the same downsizing as the active 
military, those applicants who are within 12 months of completion of 
their current terms of service would be subject to the same 
documentation requirements as members of the active military within 12 
months of release from active duty.

Verification of Employment (Paragraph (f))

    It is proposed to clarify that if an employer puts N/A or otherwise 
declines to complete the block for ``probability of continued 
employment'' on the Verification of Employment (VOE), no further action 
would be required of the lender. Although written verification of 
employment forms contain space for the employer to indicate the 
borrower's probability of continued employment, many employers have 
adopted the policy of not giving any indication as to such probability. 
In order to assure that the lender will not be considered to have been 
deficient in underwriting the loan without the probability of continued 
employment having been given by the employer, if the space is shown as 
``NA'' or has an indication that the company policy precludes giving 
such information, no further development of probability of continued 
employment would be required. The lender would be expected to have made 
an assessment based on the borrower's overall work history and tenure 
in his/her current position.

Income Such As Workers' Compensation and Foster Care (Paragraph 
(f))

    It is proposed to clarify when income such as workers' compensation 
and

[[Page 24876]]

foster care income can be used as income. In the past VA has addressed 
some types of unusual income, but workers' compensation and foster care 
income have not been addressed. This proposed regulatory change would 
set forth that such income can be considered when it can be determined 
to be stable and reliable.

Automobile Allowance or Other Expense Account Type of Income 
(Paragraph (f))

    It is proposed to address income derived from an automobile 
allowance or other expense account type of income. VA credit standards 
have not previously addressed ``income'' derived from automobile or 
similar allowances, which are often a part of the borrower's overall 
income. Therefore, VA proposes to add information for determining when 
an automobile allowance or other expense allowance constitutes income 
for loan qualification purposes.

Profit and Loss Statements Prepared by Accountants (Paragraph (f))

    It is proposed to delete the requirement that profit and loss 
statements be prepared by an accountant. Inasmuch as full tax returns 
are required in connection with every self-employed applicant and the 
cost of an accountant-prepared financial statement can be an excessive 
burden for very small businesses (e.g., hairdressers or independent 
house painters), the requirement to submit an accountant-prepared 
profit and loss statement in every instance would be deleted. Instead, 
it is proposed that the financial statement must be sufficient for a 
loan underwriter to determine the necessary information for loan 
approval and that an independent audit by a Certified Public Accountant 
would be required if necessary for such determination.

Temporary Income (Paragraph (f))

    It is proposed to change the length of time temporary income such 
as that from public assistance programs must be expected to continue 
before it can be counted for loan qualification purposes, from ``a 
substantial fraction of the term of the loan, i.e., one-third or more'' 
to 3 years or more. This proposed change is consistent with current 
industry standards.

Rental Income From a Multi-Unit Residence (Paragraph (f))

    It is also proposed to simplify the treatment of rental income in 
the credit underwriting standards. Existing instructions for 
consideration of rental income from a multi-unit residence require 
analysis of the seller's records. Since such records are seldom 
actually available for review, the regulations are proposed to be 
changed to provide for use of 75 percent of expected gross rental 
income, unless documentation supports use of a greater amount. This 
percentage would be consistent with current industry standards.

Consumer Credit Counseling Plan (Paragraph (g))

    It is proposed to state that veterans in a Consumer Credit 
Counseling (CCC) plan would be treated in the same manner as 
individuals in a plan under Chapter 13 of the Bankruptcy Code, since 
CCC plans and Chapter 13 plans are similar programs for those having 
credit difficulties. This change would incorporate that policy for 
borrowers with bad credit who entered a counseling program. We also 
note that the proposed policy would address participation in a CCC plan 
by a veteran who entered such a program before reaching the point of 
having bad credit and would not treat the participation as a negative 
credit item, since we believe this would be unfair.

Chapter 13 Bankruptcy (Paragraph (g))

    It is proposed that the provisions be changed regarding when a 
borrower should be considered a satisfactory credit risk after having 
filed for relief under Chapter 13 of the Bankruptcy Code. The prior 
criteria of requiring a Chapter 13 plan be 75 percent completed before 
a borrower can be found to be a satisfactory credit risk is more 
stringent when the plan calls for payout over a 5-year period than the 
requirement for someone who took straight bankruptcy under Chapter 7. 
This proposed change to accept satisfactory payment over 12 months 
would remove that inequity and make VA's guideline consistent with 
other criteria in the industry. Court approval for new credit would 
still be required.

Chapter 7 Bankruptcy (Paragraph (g))

    It is proposed to provide that a Chapter 7 bankruptcy would not 
cause a person to be considered a bad credit risk if 2 years have 
elapsed from the date of discharge in bankruptcy and to clarify 
treatment of more recent bankruptcies. This would eliminate imprecise 
language concerning longer periods and would bring VA's provisions in 
line with criteria used in the rest of the industry, including the 
Department of Housing and Urban Development (HUD), the Federal National 
Mortgage Association (FNMA), and the Federal Home Loan Mortgage 
Corporation (Freddie Mac).

Re-establishment of Satisfactory Credit (Paragraph (g))

    It is proposed to state when satisfactory credit is considered to 
be reestablished. One of the frequently asked questions for which VA's 
credit standards have not previously provided an answer is when to 
consider that satisfactory credit has been reestablished after a period 
of bad credit not involving bankruptcy. To be consistent with other 
criteria involving Consumer Credit Counseling and Chapter 13 plans, 12 
months since the date of the last derogatory credit item would be 
sufficient to consider that satisfactory credit has been reestablished.

Minimum Payment of Monthly Debts (Paragraph (g))

    It is proposed to delete the requirement to include in an analysis 
of monthly debts a minimum payment even if a revolving account has a 
zero balance. Previously, a requirement to include a minimum payment 
for a revolving charge that has a zero balance at the time of loan 
application was intended to offset those who temporarily pay off such 
an account for the sole purpose of appearing to have a stronger 
financial status than is usual. However, it is very difficult to 
distinguish between those with an open account but no balance at the 
moment, those who seldom use the account and pay it off every month, 
and those who have not used the account in many months. Since assuming 
that a borrower will be using the account is potentially unfair, the 
requirement that a minimum payment amount must be included would be 
deleted as part of this proposal.

Long-Term and Short-Term Debts (Paragraph (g))

    The definition of relatively long-term obligation which must be 
included in a loan analysis is proposed to be changed from one with 
remaining payments of at least 6 months to one with remaining payments 
of at least 10 months. This change would be consistent with current 
industry standards and with HUD requirements. It is also proposed to 
remove unnecessary language.

Allotments Shown on Pay Stubs (Paragraph (g))

    It is proposed to add a requirement that lenders investigate the 
reasons for allotments shown on pay stubs or leave and earning 
statements in order to assure that all debts are properly considered. 
As pay stubs and leave statements have become a common method of 
verifying a borrower's

[[Page 24877]]

income, it has become common to see allotments on those documents which 
are not adequately identified as to whether they exist to repay a debt 
which is not otherwise disclosed by the borrower. This proposed 
regulatory change would require lenders to investigate to determine if 
an allotment is related to a debt.

Debts Assigned by Divorce Decree (Paragraph (g))

    It is proposed to add a clarification regarding debts assigned to 
an ex-spouse by a divorce decree. Often the responsibility for a debt 
that had been jointly established by a veteran and former spouse has 
been assigned to the former spouse by divorce decree. However, since 
the debt remains a part of the veteran's credit history, it may appear 
as an open account on the veteran's credit report. It appears that it 
would be unfair to consider such debts as the veteran's obligation and, 
therefore, VA proposes to establish that such debts would not be 
considered the veteran's obligation.

Collection Accounts (Paragraph (g))

    It is proposed to clarify that collection accounts do not 
necessarily have to be paid off as a condition for loan approval. Only 
account balances reduced to judgment by a court would be required to be 
paid in full.

Merged Credit Reports (Paragraph (g))

    It is proposed to permit the use of a 3-file merged credit report 
(MCR) as an alternative to the Residential Mortgage Credit Report 
(RMCR) currently in use. The use of merged in-file credit reports is 
growing within the mortgage industry, in light of industry analysis 
which shows no extra risk associated with using such reports in 
underwriting mortgages. Therefore, VA proposes to change the credit 
report requirement to allow the use of MCRs as an alternative to RCMRs. 
VA already allows the use of the MCR as an alternative to RCMRs for 
quality control purposes.

Nonsubstantive Changes

    In addition to the proposed changes discussed under the specific 
headings above, nonsubstantive changes would be made for purposes of 
clarity and to correct typographical errors.

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), a 
collection of information is set forth in the provisions of the 
proposed Sec. 36.4337. This section prescribes the information to be 
submitted for approval of a VA loan guaranty and contains material 
which further explains the quality of the information needed for 
approval. To facilitate access to the collection of information 
provisions, all of Sec. 36.4337 is included in the text portion of this 
document. Also, as required under section 3507(d) of the Act, VA has 
submitted a copy of this proposed rulemaking action to the Office of 
Management and Budget (OMB) for its review of the collection of 
information.
    OMB assigns control numbers to collections of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.
    Comments on the collections of information should be submitted to 
the Office of Management and Budget, Attention: Desk Officer for the 
Department of Veterans Affairs, Office of Information and Regulatory 
Affairs, Washington, DC 20503, with copies to the Director, Office of 
Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Avenue, NW, Washington, DC 20420. Comments should indicate that 
they are submitted in response to ``RIN 2900-AI16.''
    Title: Credit Standards.
    Summary of collection of information: Pursuant to 38 U.S.C. 3710, a 
loan may not be guaranteed unless the veteran is a satisfactory credit 
risk. The statute also requires that VA set forth in regulatory form 
standards to be used by lenders in underwriting VA-guaranteed loans and 
obtaining credit information. Lenders must collect certain specific 
information concerning the veteran and the veteran's credit history 
(and spouse or other co-borrower, as applicable), in order to properly 
underwrite the veteran's loan. Collection of this information is normal 
business practice for mortgage lenders. The proposed Sec. 36.4337 would 
require that the lender provide VA with a certification and other 
limited information in addition to that which would be required for a 
non-Government-guaranteed mortgage loan.
    Description of need for information and proposed use of 
information: VA requires the lender to provide the Department with the 
credit information to assure itself that applications for VA-guaranteed 
loans are underwritten in a reasonable and prudent manner.
    Description of likely respondents: Mortgage lenders who make VA-
guaranteed home loans.
    Estimated number of respondents: 300,000 in FY 1997; 280,000 in FY 
1998.
    Estimated frequency of responses: This is a ``one-time'' request 
for each application for a VA-guaranteed loan.
    Estimated average burden per collection: 10 minutes. VA estimates 
that an average of 80 minutes would be needed for the portion of the 
information that would already be collected as normal business practice 
for mortgage lenders. VA estimates that 10 minutes constitutes the 
average additional time needed due to the provisions of this 
information collection.
    Estimated total annual reporting and recordkeeping burden: 5000 
hours in FY 1997 and 4667 hours in FY 1998 for the information that 
would not otherwise be collected and retained in the ordinary course of 
business.
    The Department considers comments by the public on proposed 
collections of information in--
     Evaluating whether the proposed collections of information 
are necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the proposed collections of information, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collections of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    OMB is required to make a decision concerning the proposed 
collection of information contained in this proposed rule between 30 
and 60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. This does not affect 
the deadline for the public to comment on the proposed regulations.

Regulatory Flexibility Act

    The Secretary hereby certifies that these proposed regulatory 
amendments will not, if promulgated, have a significant economic impact 
on a substantial number of small entities as they are defined in the 
Regulatory Flexibility Act, 5 U.S.C. 601-612. Industry norms for other 
lending programs already require lenders to comply with most of the 
proposed

[[Page 24878]]

standards set forth in this regulatory package. Further, activities 
concerning loans subject to the VA Loan Guaranty Program do not 
constitute a significant portion of activities of small businesses.

(The Catalog of Federal Domestic Assistance Program numbers are 
64.106, 64.114, 64.118 and 64.119.)

List of Subjects in 38 CFR Part 36

    Condominiums, Handicapped, Housing Loan programs--housing and 
community development, Reporting and recordkeeping requirements, 
Veterans.

    Approved: February 21, 1997.
Jesse Brown,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR part 36 is proposed 
to be amended as set forth below.

PART 36--LOAN GUARANTY

    1. The authority citation for part 36 Secs. 36.4300 through 36.4375 
continues to read as follows:

    Authority: Sections 36.4300 through 36.4375 issued under 38 
U.S.C. 101, 501, 3701-3704, 3710, 3712-3714, 3720, 3729, 3732, 
unless otherwise noted.

    2. Section 36.4337 is revised to read as follows:


Sec. 36.4337  Underwriting standards, processing procedures, lender 
responsibility, and lender certification.

    (a) Use of standards. Except for refinancing loans guaranteed 
pursuant to 38 U.S.C. 3710(a)(8), the standards contained in paragraphs 
(c) through (j) of this section will be used to determine that the 
veteran's present and anticipated income and expenses, and credit 
history, are satisfactory.
    (b) Waiver of standards. Use of the standards in paragraphs (c) 
through (j) of this section for underwriting home loans will be waived 
only in extraordinary circumstances when the Secretary determines, 
considering the totality of circumstances, that the veteran is a 
satisfactory credit risk.
    (c) Methods. The two primary underwriting tools that will be used 
in determining the adequacy of the veteran's present and anticipated 
income are debt-to-income ratio and residual income analysis. They are 
described in paragraphs (d) through (f) of this section. Ordinarily, to 
qualify for a loan, the veteran must meet both standards. Failure to 
meet one standard, however, will not automatically disqualify a 
veteran. The following shall apply to cases where a veteran does not 
meet both standards:
    (1) If the debt-to-income ratio is 41 percent or less, and the 
veteran does not meet the residual income standard, the loan may be 
approved with justification, by the underwriter's supervisor, as set 
out in paragraph (c)(4) of this section.
    (2) If the debt-to-income ratio is greater than 41 percent (unless 
it is larger due solely to the existence of tax-free income which 
should be noted in the loan file), the loan may be approved with 
justification, by the underwriter's supervisor, as set out in paragraph 
(c)(4) of this section.
    (3) If the ratio is greater than 41 percent and the residual income 
exceeds the guidelines by at least 20 percent, the second level review 
and statement of justification are not required.
    (4) In any case described by paragraphs (c)(1) and (c)(2) of this 
section, the lender must fully justify the decision to approve the loan 
or submit the loan to the Secretary for prior approval in writing. The 
lender's statement must not be perfunctory, but should address the 
specific compensating factors, as set forth in paragraph (c)(5) of this 
section, justifying the approval of the loan. The statement must be 
signed by the underwriter's supervisor. It must be stressed that the 
statute requires not only consideration of a veteran's present and 
anticipated income and expenses, but also that the veteran be a 
satisfactory credit risk. Therefore, meeting both the debt-to-income 
ratio and residual income standards does not mean that the loan is 
automatically approved. It is the lender's responsibility to base the 
loan approval or disapproval on all the factors present for any 
individual veteran. The veteran's credit must be evaluated based on the 
criteria set forth in paragraph (g) of this section as well as a 
variety of compensating factors that should be evaluated.
    (5) The following are examples of acceptable compensating factors 
to be considered in the course of underwriting a loan:
    (i) Excellent long-term credit;
    (ii) Conservative use of consumer credit;
    (iii) Minimal consumer debt;
    (iv) Long-term employment;
    (v) Significant liquid assets;
    (vi) Downpayment or the existence of equity in refinancing loans;
    (vii) Little or no increase in shelter expense;
    (viii) Military benefits;
    (ix) Satisfactory homeownership experience;
    (x) High residual income;
    (xi) Low debt-to-income ratio;
    (xii) Tax credits for child care; and
    (xiii) Tax benefits of home ownership.
    (6) The list in paragraph (c)(5) of this section is not exhaustive 
and the items are not in any priority order. Valid compensating factors 
should represent unusual strengths rather than mere satisfaction of 
basic program requirements. Compensating factors must be relevant to 
the marginality or weakness.
    (d) Debt-to-income ratio. A debt-to-income ratio that compares the 
veteran's anticipated monthly housing expense and total monthly 
obligations to his or her stable monthly income will be computed to 
assist in the assessment of the potential risk of the loan. The ratio 
will be determined by taking the sum of the monthly Principal, 
Interest, Taxes and Insurance (PITI) of the loan being applied for, 
homeowners and other assessments such as special assessments, 
condominium fees, homeowners association fees, etc., and any long-term 
obligations divided by the total of gross salary or earnings and other 
compensation or income. The ratio should be rounded to the nearest two 
digits; e.g., 35.6 percent would be rounded to 36 percent. The standard 
is 41 percent or less. If the ratio is greater than 41 percent, the 
steps cited in paragraphs (c)(1) through (c)(6) of this section apply.
    (e) Residual income guidelines. The guidelines provided in this 
paragraph for residual income will be used to determine whether the 
veteran's monthly residual income will be adequate to meet living 
expenses after estimated monthly shelter expenses have been paid and 
other monthly obligations have been met. All members of the household 
must be included in determining if the residual income is sufficient. 
They must be counted even if the veteran's spouse is not joining in 
title or on the note, or if there are any other individuals depending 
on the veteran for support, such as children from a spouse's prior 
marriage who are not the veteran's legal dependents. It is appropriate, 
however, to reduce the number of members of a household to be counted 
for residual income purposes if there is sufficient verified income not 
otherwise included in the loan analysis, such as child support being 
regularly received as discussed in paragraph (e)(4) of this section. In 
the case of a spouse not to be obligated on the note, verification that 
he/she has stable and reliable employment as discussed in paragraph 
(f)(3) of this section would allow not counting the spouse in 
determining the sufficiency of the residual income. The guidelines for 
residual income are based on data supplied in the Consumer Expenditure 
Survey (CES) published by the Department of Labor's Bureau of Labor 
Statistics. Regional minimum incomes

[[Page 24879]]

have been developed for loan amounts up to $79,999 and for loan amounts 
of $80,000 and above. It is recognized that the purchase price of the 
property may affect family expenditure levels in individual cases. This 
factor may be given consideration in the final determination in 
individual loan analyses. For example, a family purchasing in a higher-
priced neighborhood may feel a need to incur higher-than-average 
expenses to support a lifestyle comparable to that in their 
environment, whereas a substantially lower-priced home purchase may not 
compel such expenditures. It should also be clearly understood from 
this information that no single factor is a final determinant in any 
applicant's qualification for a VA-guaranteed loan. Once the residual 
income has been established, other important factors must be examined. 
One such consideration is the amount being paid currently for rental or 
housing expenses. If the proposed shelter expense is materially in 
excess of what is currently being paid, the case may require closer 
scrutiny. In such cases, consideration should be given to the ability 
of the borrower and spouse to accumulate liquid assets, such as cash 
and bonds, and to the amount of debts incurred while paying a lesser 
amount for shelter. For example, if an application indicates little or 
no capital reserves and excessive obligations, it may not be reasonable 
to conclude that a substantial increase in shelter expenses can be 
absorbed. Another factor of prime importance is the applicant's manner 
of meeting obligations. A poor credit history alone is a basis for 
disapproving a loan, as is an obviously inadequate income. When one or 
the other is marginal, however, the remaining aspect must be closely 
examined to assure that the loan applied for will not exceed the 
applicant's ability or capacity to repay. Therefore, it is important to 
remember that the figures provided below for residual income are to be 
used as a guide and should be used in conjunction with the steps 
outlined in paragraphs (c) through (j) of this section. The residual 
income guidelines are as follows:
    (1) Table of residual incomes by region (for loan amounts of 
$79,999 and below):

                   Table of Residual Incomes by Region                  
                 [For loan amounts of $79,999 and below]                
------------------------------------------------------------------------
 Family size                                                            
     \1\         Northeast       Midwest         South          West    
------------------------------------------------------------------------
1............           390            382            382            425
2............           654            641            641            713
3............           788            772            772            859
4............           888            868            868            967
5............           921            902            902          1,004
------------------------------------------------------------------------
\1\ For families with more than five members, add $75 for each          
  additional member up to a family of seven. ``Family'' includes all    
  members of the household.                                             

    (2) Table of residual incomes by region (for loan amounts of 
$80,000 and above):

                   Table of Residual Incomes by Region                  
                 [For loan amounts of $80,000 and above]                
------------------------------------------------------------------------
 Family size                                                            
     \1\         Northeast       Midwest         South          West    
------------------------------------------------------------------------
1............           450            441            441            491
2............           755            738            738            823
3............           909            889            889            990
4............         1,025          1,003          1,003          1,117
5............         1,062          1,039          1,039          1,158
------------------------------------------------------------------------
\1\ For families with more than five members, add $80 for each          
  additional member up to a family of seven. ``Family'' includes all    
  members of the household.                                             

    (3) Geographic regions for residual income guidelines: Northeast--
Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, 
Pennsylvania, Rhode Island and Vermont; Midwest--Illinois, Indiana, 
Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, North Dakota, 
Ohio, South Dakota and Wisconsin; South--Alabama, Arkansas, Delaware, 
District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maryland, 
Mississippi, North Carolina, Oklahoma, Puerto Rico, South Carolina, 
Tennessee, Texas, Virginia, West Virginia; West--Alaska, Arizona, 
California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, 
Oregon, Utah, Washington and Wyoming.
    (4) Military adjustments. For loan applications involving an 
active-duty serviceperson or military retiree, the residual income 
figures will be reduced by a minimum of 5 percent if there is a clear 
indication that the borrower or spouse will continue to receive the 
benefits resulting from the use of facilities on a nearby military 
base. (This reduction applies to tables in paragraph (e) of this 
section.)
    (f) Stability and reliability of income. Only stable and reliable 
income of the veteran and spouse can be considered in determining 
ability to meet mortgage payments. Income can be considered stable and 
reliable if it can be concluded that it will continue during the 
foreseeable future.
    (1) Verification. Income of the borrower and spouse which is 
derived from employment and which is considered in determining the 
family's ability to meet the mortgage payments, payments on debts and 
other obligations, and other expenses must be verified. If the spouse 
is employed and will be contractually obligated on the loan, the 
combined income of both the veteran and spouse is considered when the 
income of the veteran alone is not sufficient to qualify for the amount 
of the loan sought. In other than community property states, if the

[[Page 24880]]

spouse will not be contractually obligated on the loan, Regulation B, 
promulgated by the Federal Reserve Board pursuant to the Equal Credit 
Opportunity Act, prohibits any request for, or consideration of, 
information concerning the spouse (including income, employment, 
assets, or liabilities), except that if the applicant is relying on 
alimony, child support, or maintenance payments from a spouse or former 
spouse as a basis for repayment of the loan, information concerning 
such spouse or former spouse may be requested and considered (see 
paragraph (f)(4) of this section). In community property states, 
information concerning a spouse may be requested and considered in the 
same manner as that for the applicant. The standards applied to income 
of the veteran are also applicable to that of the spouse. There can be 
no discounting of income on account of sex, marital status, or any 
other basis prohibited by the Equal Credit Opportunity Act. Income 
claimed by an applicant that is not or cannot be verified cannot be 
considered when analyzing the loan. If the veteran or spouse has been 
employed by a present employer for less than 2 years, a 2-year history 
covering prior employment, schooling, or other training must be 
secured. Any periods of unemployment must be explained. Employment 
verifications and pay stubs must be no more than 120 days (180 days for 
new construction) old to be considered valid. For loans closed 
automatically, this requirement will be considered satisfied if the 
date of the employment verification is within 120 days (180 days for 
new construction) of the date the note is signed. For prior approval 
loans, this requirement will be considered satisfied if the 
verification of employment is dated within 120 days of the date the 
application is received by VA.
    (2) Active-duty applicants. (i) In the case of an active-duty 
applicant, a military Leave & Earnings Statement is required and will 
be used instead of an employment verification. The statement must be no 
more than 120 days old (180 days for new construction) and must be the 
original or a lender-certified copy of the original. For loans closed 
automatically, this requirement is satisfied if the date of the Leave & 
Earnings Statement is within 120 days (180 days for new construction) 
of the date the note is signed. For prior approval loans, this 
requirement will be considered satisfied if the verification of 
employment is dated within 120 days of the date the application is 
received by VA.
    (ii) For servicemembers within 12 months of release from active 
duty, including members of the Reserves or National Guard, one of the 
following is also required:
    (A) Documentation that the servicemember has in fact already 
reenlisted or extended his/her period of active duty to a date beyond 
the 12-month period following the projected closing of the loan.
    (B) Verification of a valid offer of local civilian employment 
following release from active duty. All data pertinent to sound 
underwriting procedures (date employment will begin, earnings, etc.) 
must be included.
    (C) A statement from the servicemember that he/she intends to 
reenlist or extend his/her period of active duty to a date beyond the 
12 month period following the projected loan closing date, and a 
statement from the service member's commanding officer confirming that 
the service member is eligible to reenlist or extend his/her active 
duty as indicated and that the commanding officer has no reason to 
believe that such reenlistment or extension of active duty will not be 
granted.
    (D) Other unusually strong positive underwriting factors, such as a 
downpayment of at least 10 percent, significant cash reserves, or clear 
evidence of strong ties to the community coupled with a nonmilitary 
spouse's income so high that only minimal income from the active duty 
servicemember is needed to qualify.
    (iii) Each active-duty member who applies for a loan must be 
counseled through the use of VA Form 26-0592, Counseling Checklist for 
Military Homebuyers. Lenders must submit a signed and dated VA Form 26-
0592 with each prior approval loan application or automatic loan report 
involving a borrower on active duty.
    (3) Income reliability. Income received by the borrower and spouse 
is to be used only if it can be concluded that the income will continue 
during the foreseeable future and, thus, should be properly considered 
in determining ability to meet the mortgage payments. If an employer 
puts N/A or otherwise declines to complete a verification of employment 
statement regarding the probability of continued employment, no further 
action is required of the lender. Reliability will be determined based 
on the duration of the borrower's current employment together with his 
or her overall documented employment history. There can be no 
discounting of income solely because it is derived from an annuity, 
pension or other retirement benefit, or from part-time employment. 
However, unless income from overtime work and part-time or second jobs 
can be accorded a reasonable likelihood that it is continuous and will 
continue in the foreseeable future, such income should not be used. 
Generally, the reliability of such income cannot be demonstrated unless 
the income has continued for 2 years. The hours of duty and other work 
conditions of the applicant's primary job, and the period of time in 
which the applicant was employed under such arrangement, must be such 
as to permit a clear conclusion as to a good probability that overtime 
or part-time or secondary employment can and will continue. Income from 
overtime work and part-time jobs not eligible for inclusion as primary 
income may, if properly verified for at least 12 months, be used to 
offset the payments due on debts and obligations of an intermediate 
term, i.e., 6 to 24 months. Such income must be described in the loan 
file. The amount of any pension or compensation and other income, such 
as dividends from stocks, interest from bonds, savings accounts, or 
other deposits, rents, royalties, etc., will be used as primary income 
if it is reasonable to conclude that such income will continue in the 
foreseeable future. Otherwise, it may be used only to offset 
intermediate-term debts, as above. Also, the likely duration of certain 
military allowances cannot be determined and, therefore, will be used 
only to offset intermediate-term debts, as above. Such allowances are: 
Pro-pay, flight or hazard pay, and overseas or combat pay, all of which 
are subject to periodic review and/or testing of the recipient to 
ascertain whether eligibility for such pay will continue. Only if it 
can be shown that such pay has continued for a prolonged period and can 
be expected to continue because of the nature of the recipient's 
assigned duties, will such income be considered as primary income. For 
instance, flight pay verified for a pilot can be regarded as probably 
continuous and, thus, should be added to the base pay. Income derived 
from service in the Reserves or National Guard may be used if the 
applicant has served in such capacity for a period of time sufficient 
to evidence good probability that such income will continue beyond 12 
months. The total period of active and reserve service may be helpful 
in this regard. Otherwise, such income may be used to offset 
intermediate-term debts. There are a number of additional income 
sources whose contingent nature precludes their being considered as 
available for repayment of a long-term mortgage obligation. Temporary 
income items

[[Page 24881]]

such as VA educational allowances and unemployment compensation do not 
represent stable and reliable income and will not be taken into 
consideration in determining the ability of the veteran to meet the 
income requirement of the governing law. As required by the Equal 
Opportunity Act Amendments of 1976, Public Law 94-239, income from 
public assistance programs is used to qualify for a loan if it can be 
determined that the income will probably continue for 3 years or more.
    (4) Tax-exempt income. Special consideration can be given to 
verified nontaxable income once it has been established that such 
income is likely to continue (and remain untaxed) into the foreseeable 
future. Such income includes certain military allowances, child support 
payments, workers' compensation benefits, disability retirement 
payments and certain types of public assistance payments. In such 
cases, current income tax withholding tables may be used to determine 
an amount which can be prudently employed to adjust the borrower's 
actual income. This adjusted or ``grossed up'' income may be used to 
calculate the monthly debt-to-income ratio, provided the analysis is 
documented. Only the borrower's actual income may be used to calculate 
the residual income. Care should be exercised to ensure that the income 
is in fact tax-exempt.
    (5) Alimony, child support, maintenance, workers' compensation, 
foster care payments. (i) If an applicant chooses to reveal income from 
alimony, child support or maintenance payments (after first having been 
informed that any such disclosure is voluntary pursuant to the Federal 
Reserve Board's Regulation B), such payments are considered as income 
to the extent that the payments are likely to be consistently made. 
Factors to be considered in determining the likelihood of consistent 
payments include, but are not limited to: Whether the payments are 
received pursuant to a written agreement or court decree; the length of 
time the payments have been received; the regularity of receipt; the 
availability of procedures to compel payment; and the creditworthiness 
of the payor, including the credit history of the payor when available 
under the Fair Credit Reporting Act or other applicable laws. However, 
the Fair Credit Reporting Act (15 U.S.C. 1681(b)) limits the 
permissible purposes for which credit reports may be ordered, in the 
absence of written instructions of the consumer to whom the report 
relates, to business transactions involving the subject of the credit 
report or extensions of credit to the subject of the credit report.
    (ii) If the applicant chooses to reveal income related to workers' 
compensation, it will be considered as income to the extent it can be 
determined such income will continue.
    (iii) Income received specifically for the care of any foster 
child(ren) may be counted as income if documented. Generally, however, 
such foster care income is to be used only to balance the expenses of 
caring for the foster child(ren) against any increased residual income 
requirements.
    (6) Military quarters allowance. With respect to off-base housing 
(quarters) allowances for service personnel on active duty, it is the 
policy of the Department of Defense to utilize available on-base 
housing when possible. In order for a quarters allowance to be 
considered as continuing income, it is necessary that the applicant 
furnish written authorization from his or her commanding officer for 
off-base housing. This authorization should verify that quarters will 
not be made available and that the individual should make permanent 
arrangements for nonmilitary housing. A Department of Defense form, DD 
Form 1747, Status of Housing Availability, is used by the Family 
Housing Office to advise personnel regarding family housing. The 
applicant's quarters allowance cannot be considered unless item b 
(Permanent) or d is completed on DD Form 1747, dated October 1990. Of 
course, if the applicant's income less quarters allowance is 
sufficient, there is no need for assurance that the applicant has 
permission to occupy nonmilitary housing provided that a determination 
can be made that the occupancy requirements of the law will be met. 
Also, authorization to obtain off-base housing will not be required 
when certain duty assignments would clearly qualify service personnel 
with families for quarters allowance. For instance, off-base housing 
authorizations need not be obtained for service personnel stationed 
overseas who are not accompanied by their families, recruiters on 
detached duty, or military personnel stationed in areas where no on-
base housing exists. In any case in which no off-base housing 
authorization is obtained, an explanation of the circumstances 
justifying its omission must be included with the loan application 
except when it has been established by the VA facility of jurisdiction 
that the waiting lists for on-base housing are so long that it is 
improbable that individuals desiring to purchase off-base housing would 
be precluded from doing so in the foreseeable future. If stations make 
such a determination, a release shall be issued to inform lenders.
    (7) Automobile (or similar) allowance. Generally, automobile 
allowances are paid to cover specific expenses related to an 
applicant's employment, and it is appropriate to use such income to 
offset a corresponding car payment. However, in some instances, such an 
allowance may exceed the car payment. With proper documentation, income 
from a car allowance which exceeds the car payment can be counted as 
effective income. Likewise, any other similar type of allowance which 
exceeds the specific expense involved may be added to gross income to 
the extent it is documented to exceed the actual expense.
    (8) Commissions. When all or a major portion of the veteran's 
income is derived from commissions, it will be necessary to establish 
the stability of such income if it is to be considered in the loan 
analysis for the repayment of the mortgage debt and/or short-term 
obligations. In order to assess the value of such income, lenders 
should obtain written verification of the actual amount of commissions 
paid to date, the basis for the payment of such commissions and when 
commissions are paid; i.e., monthly, quarterly, semiannually, or 
annually. Lenders should also obtain signed and dated individual income 
tax returns, plus applicable schedules, for the previous 2 years, or 
for whatever additional period is deemed necessary to properly 
demonstrate a satisfactory earnings record. The length of the veteran's 
employment in the type of occupation for which commissions are paid is 
also an important factor in the assessment of the stability of the 
income. If the veteran has been employed for a relatively short time, 
the income should not normally be considered stable unless the product 
or service was the same or closely related to the product or service 
sold in an immediate prior position. Generally, income from commissions 
is considered stable when the applicant has been receiving such income 
for at least 2 years. Less than 2 years of income from commissions 
cannot usually be considered stable. When an applicant has received 
income from commissions for less than 1 year, it will rarely be 
possible to demonstrate that the income is stable for qualifying 
purposes; such cases would require in-depth development.
    (9) Self-employment. Generally, income from self-employment is 
considered stable when the applicant has been in business for at least 
2 years. Less than 2 years of income from self-

[[Page 24882]]

 employment cannot usually be considered stable unless the applicant 
has had previous related employment and/or extensive specialized 
training. When an applicant has been self-employed less than 1 year, it 
will rarely be possible to demonstrate that the income is stable for 
qualifying purposes; such cases would require in-depth development. The 
following documentation is required for all self-employed borrowers:
    (i) A profit-and-loss statement for the prior fiscal year (12-month 
accounting cycle), plus the period year to date since the end of the 
last fiscal year (or for whatever shorter period records may be 
available), and balance sheet based on the financial records. The 
financial statement must be sufficient for a loan underwriter to 
determine the necessary information for loan approval and an 
independent audit (on the veteran and/or the business) by a Certified 
Public Accountant will be required if necessary for such determination; 
and
    (ii) Copies of signed individual income tax returns, plus all 
applicable schedules for the previous 2 years, or for whatever 
additional period is deemed necessary to properly demonstrate a 
satisfactory earnings record, must be obtained. If the business is a 
corporation or partnership, copies of signed Federal business income 
tax returns for the previous two years plus all applicable schedules 
for the corporation or partnership must be obtained; and
    (iii) If the business is a corporation or partnership, a list of 
all stockholders or partners showing the interest each holds in the 
business will be required. Some cases may justify a written credit 
report on the business as well as the applicant. When the business is 
of an unusual type and it is difficult to determine the probability of 
its continued operation, explanation as to the function and purpose of 
the business may be needed from the applicant and/or any other 
qualified party with the acknowledged expertise to express a valid 
opinion.
    (10) Recently discharged veterans. Loan applications received from 
recently discharged veterans who have little or no employment 
experience other than their military occupation and from veterans 
seeking VA-guaranteed loans who have retired after 20 years of active 
military duty require special attention. The retirement income of the 
latter veterans in many cases may not be sufficient to meet the 
statutory income requirements for the loan amount sought. Many have 
obtained full-time employment and have been employed in their new jobs 
for a very short time.
    (i) It is essential in determining whether veterans in these 
categories qualify from the income standpoint for the amount of the 
loan sought, that the facts in respect to their present employment and 
retirement income be fully developed, and that each case be considered 
on its individual merits.
    (ii) In most cases the veteran's current income or current income 
plus his or her retirement income is sufficient. The problem lies in 
determining whether it can be properly concluded that such income level 
will continue for the foreseeable future. If the veteran's employment 
status is that of a trainee or an apprentice, this will, of course, be 
a factor. In cases of the self-employed, the question to be resolved is 
whether there are reasonable prospects that the business enterprise 
will be successful and produce the required income. Unless a favorable 
conclusion can be made, the income from such source should not be 
considered in the loan analysis.
    (iii) If a recently discharged veteran has no prior employment 
history and the veteran's verification of employment shows he or she 
has not been on the job a sufficient time in which to become 
established, consideration should be given to the duties the veteran 
performed in the military service. When it can be determined that the 
duties a veteran performed in the service are similar or are in direct 
relation to the duties of the applicant's present position, such duties 
may be construed as adding weight to his or her present employment 
experience and the income from the veteran's present employment thus 
may be considered available for qualifying the loan, notwithstanding 
the fact that the applicant has been on the present job only a short 
time. This same principle may be applied to veterans recently retired 
from the service. In addition, when the veteran's income from 
retirement, in relation to the total of the estimated shelter expense, 
long-term debts and amount available for family support, is such that 
only minimal income from employment is necessary to qualify from the 
income standpoint, it would be proper to resolve the doubt in favor of 
the veteran. It would be erroneous, however, to give consideration to a 
veteran's income from employment for a short duration in a job 
requiring skills for which the applicant has had no training or 
experience.
    (iv) To illustrate the provisions of this paragraph (f), it would 
be proper to use short-term employment income in qualifying a veteran 
who had experience as an airplane mechanic in the military service and 
the individual's employment after discharge or retirement from the 
service is in the same or allied fields; e.g., auto mechanic or 
machinist. This presumes, however, that the verification of employment 
included a statement that the veteran was performing the duties of the 
job satisfactorily, the possibility of continued employment was 
favorable and that the loan application is eligible in all other 
respects. An example of nonqualifying experience is that of a veteran 
who was an Air Force pilot and has been employed in insurance sales on 
commission for a short time. Most cases, of course, fall somewhere 
between those extremes. It is for this reason that the facts of each 
case must be fully developed prior to closing the loan automatically or 
submitting the case to VA for prior approval.
    (11) Employment of short duration. The provisions of paragraph 
(f)(7) of this section are similarly applicable to applicants whose 
employment is of short duration. Such cases will entail careful 
consideration of the employer's confirmation of employment, probability 
of permanency, past employment record, the applicant's qualifications 
for the position, and previous training, including that received in the 
military service. In the event that such considerations do not enable a 
determination that the income from the veteran's current position has a 
reasonable likelihood of continuance, such income should not be 
considered in the analysis. Applications received from persons employed 
in the building trades, or in other occupations affected by climatic 
conditions, should be supported by documentation evidencing the 
applicant's total earnings to date and covering a period of not less 
than 1 year as well as signed and dated copies of complete income tax 
returns, including all schedules for the past 2 years or for whatever 
additional period is deemed necessary to properly demonstrate a 
satisfactory earnings record. If the applicant works out of a union, 
evidence of the previous year's earnings should be obtained together 
with a verification of employment from the current employer.
    (12) Rental income.--(i) Multi-unit subject property. When the loan 
pertains to a structure with more than a one-family dwelling unit, the 
prospective rental income will not be considered unless the veteran can 
demonstrate a reasonable likelihood of success as a landlord, and 
sufficient cash reserves are verified to enable the veteran to carry 
the mortgage loan payments (principal, interest, taxes, and insurance) 
without assistance from the rental income for a period of at least 6 
months. The determination of the veteran's likelihood of success as a

[[Page 24883]]

landlord will be based on documentation of any prior experience in 
managing rental units or other collection activities. The amount of 
rental income to be used in the loan analysis will be based on 75 
percent of the amount indicated on the lease or rental agreement, 
unless a greater percentage can be documented.
    (ii) Rental of existing home. Proposed rental of a veteran's 
existing property may be used to offset the mortgage payment on that 
property, provided there is no indication that the property will be 
difficult to rent. If available, a copy of the rental agreement should 
be obtained. It is the responsibility of the loan underwriter to be 
aware of the condition of the local rental market. For instance, in 
areas where the rental market is very strong the absence of a lease 
should not automatically prohibit the offset of the mortgage by the 
proposed rental income.
    (iii) Other rental property. If income from rental property will be 
used to qualify for the new loan, the documentation required of a self-
employed applicant should be obtained together with evidence of cash 
reserves equaling 3 months PITI on the rental property. As for any 
self-employed earnings (see paragraph (f)(7) of this section), 
depreciation claimed may be added back in as income. In the case of a 
veteran who has no experience as a landlord, it is unlikely that the 
income from a rental property may be used to qualify for the new loan.
    (13) Taxes and other deductions. Deductions to be applied for 
Federal income taxes and Social Security may be obtained from the 
Employer's Tax Guide (Circular E) issued by the Internal Revenue 
Service (IRS). (For veterans receiving a mortgage credit certificate 
(MCC), see paragraph (f)(14) of this section.) Any State or local taxes 
should be estimated or obtained from charts similar to those provided 
by IRS which may be available in those states with withholding taxes. A 
determination of the amount paid or withheld for retirement purposes 
should be made and used when calculating deductions from gross income. 
In determining whether a veteran-applicant meets the income criteria 
for a loan, some consideration may be given to the potential tax 
benefits the veteran will realize if the loan is approved. This can be 
done by using the instructions and worksheet portion of IRS Form W-4, 
Employee's Withholding Allowance Certificate, to compute the total 
number of permissible withholding allowances. That number can then be 
used when referring to IRS Circular E and any appropriate similar State 
withholding charts to arrive at the amount of Federal and State income 
tax to be deducted from gross income.
    (14) Mortgage credit certificates. (i) The Internal Revenue Code, 
as amended by the Tax Reform Act of 1984, allows states and other 
political subdivisions to trade in all or part of their authority to 
issue mortgage revenue bonds for authority to issue MCCs. Veterans who 
are recipients of MCCs may realize a significant reduction in their 
income tax liability by receiving a Federal tax credit for a percentage 
of their mortgage interest payment on debt incurred on or after January 
1, 1985.
    (ii) Lenders must provide a copy of the MCC to VA with the home 
loan application. The MCC will specify the rate of credit allowed and 
the amount of certified indebtedness; i.e., the indebtedness incurred 
by the veteran to acquire a principal residence or as a qualified home 
improvement or rehabilitation loan.
    (iii) For credit underwriting purposes, the amount of tax credit 
allowed to a veteran under an MCC will be treated as a reduction in the 
monthly Federal income tax. For example, a veteran having a $600 
monthly interest payment and an MCC providing a 30-percent tax credit 
would receive a $180 (30 percent x $600) tax credit each month. 
However, because the annual tax credit, which amounts to $2,160 (12 x 
$180), exceeds $2,000 and is based on a 30-percent credit rate, the 
maximum tax credit the veteran can receive is limited to $2,000 per 
year (Pub. L. 98-369) or $167 per month ($2,000/12). As a consequence 
of the tax credit, the interest on which a deduction can be taken will 
be reduced by the amount of the tax credit to $433 ($600--$167). This 
reduction should also be reflected when calculating Federal income tax.
    (iv) For underwriting purposes, the amount of the tax credit is 
limited to the amount of the veteran's maximum tax liability. If, in 
the example in paragraph (f)(14)(iii) of this section, the veteran's 
tax liability for the year were only $1,500, the monthly tax credit 
would be limited to $125 ($1,500/12).
    (g) Credit. The conclusion reached as to whether or not the veteran 
and spouse are satisfactory credit risks must also be based on a 
careful analysis of the available credit data. Regulation B (12 CFR 
part 202), promulgated by the Federal Reserve Board pursuant to the 
Equal Credit Opportunity Act, requires that lenders, in evaluating 
creditworthiness, shall consider, on the applicant's request, the 
credit history, when available, of any account reported in the name of 
the applicant's spouse or former spouse which the applicant can 
demonstrate accurately reflects the applicant's creditworthiness. In 
other than community property states, if the spouse will not be 
contractually obligated on the loan, Regulation B prohibits any request 
for or consideration of information about the spouse concerning income, 
employment, assets or liabilities. In community property states, 
information concerning a spouse may be requested and considered in the 
same manner as that for the applicant.
    (1) Adverse data. If the analysis develops any derogatory credit 
information and, despite such facts, it is determined that the veteran 
and spouse are satisfactory credit risks, the basis for the decision 
must be explained. If a veteran and spouse have debts outstanding which 
have not been paid timely, or which they have refused to pay, the fact 
that the outstanding debts are paid after the acceptability of the 
credit is questioned or in anticipation of applying for new credit does 
not, of course, alter the fact that the record for paying debts has 
been unsatisfactory. With respect to unpaid debts, lenders may take 
into consideration a veteran's claim of bona fide or legal defenses. 
Such defenses are not applicable when the debt has been reduced to 
judgment. Where a collection account has been established, if it is 
determined that the borrower is a satisfactory credit risk, it is not 
mandatory that such an account be paid off in order for a loan to be 
approved. Court-ordered judgments, however, must be paid off before a 
new loan is approved.
    (2) Bankruptcy. When the credit information shows that the borrower 
or spouse has been discharged in bankruptcy under the ``straight'' 
liquidation and discharge provisions of the bankruptcy law, this would 
not in itself disqualify the loan. However, in such cases it is 
necessary to develop complete information as to the facts and 
circumstances concerning the bankruptcy. Generally speaking, when the 
borrower or spouse, as the case may be, has been regularly employed 
(not self-employed) and has been discharged in bankruptcy within the 
last one to two years, it probably would not be possible to determine 
that the borrower or spouse is a satisfactory credit risk unless both 
of the following requirements are satisfied:
    (i) The borrower or spouse has obtained credit subsequent to the 
bankruptcy and has met the credit payments in a satisfactory manner 
over a continued period; and
    (ii) The bankruptcy was caused by circumstances beyond the control 
of the borrower or spouse, e.g.,

[[Page 24884]]

unemployment, prolonged strikes, medical bills not covered by 
insurance. Divorce is not generally viewed as beyond the control of the 
borrower and/or spouse. The circumstances alleged must be verified. If 
a borrower or spouse is self-employed, has been adjudicated bankrupt, 
and subsequently obtains a permanent position, a finding as to 
satisfactory credit risk may be made provided there is no derogatory 
credit information prior to self-employment, there is no derogatory 
credit information subsequent to the bankruptcy, and the failure of the 
business was not due to misconduct. If a borrower or spouse has been 
discharged in bankruptcy within the past 12 months, it will not 
generally be possible to determine that the borrower or spouse is a 
satisfactory credit risk.
    (3) Petition under Chapter 13 of Bankruptcy Code. A petition under 
chapter 13 of the Bankruptcy Code filed by the borrower or spouse is 
indicative of an effort to pay their creditors. Some plans may provide 
for full payment of debts while others arrange for payment of scaled-
down debts. Regular payments are made to a court-appointed trustee over 
a 2-to 3-year period (or up to 5 years in some cases). When the 
borrowers have made all payments in a satisfactory manner, they may be 
considered as having reestablished satisfactory credit. When they apply 
for a home loan before completion of the payout period, favorable 
consideration may nevertheless be given if at least 12 months' worth of 
payments have been made satisfactorily and the Trustee or Bankruptcy 
Judge approves of the new credit.
    (4) Foreclosures. (i) When the credit information shows that the 
veteran or spouse has had a foreclosure on a prior mortgage; e.g., a 
VA-guaranteed, or HUD-insured mortgage, this will not in itself 
disqualify the borrower from obtaining the loan. Lenders and field 
station personnel should refer to the preceding guidelines on 
bankruptcies for cases involving foreclosures. As with a borrower who 
has been adjudicated bankrupt, it is necessary to develop complete 
information as to the facts and circumstances of the foreclosure.
    (ii) When VA pays a claim on a VA-guaranteed loan as a result of a 
foreclosure, the original veteran may be required to repay any loss to 
the Government. In some instances VA may waive the veteran's debt, in 
part or totally, based on the facts and circumstances of the case. 
However, guaranty entitlement cannot be restored unless the 
Government's loss has been repaid in full, regardless of whether or not 
the debt has been waived, compromised, or discharged in bankruptcy. 
Therefore, a veteran who is seeking a new VA loan after having 
experienced a foreclosure on a prior VA loan will in most cases have 
only remaining entitlement to apply to the new loan. The lender should 
assure that the veteran has sufficient entitlement for its secondary 
marketing purposes.
    (5) Federal debts. An applicant for a Federally assisted loan will 
not be considered a satisfactory credit risk for such loan if the 
applicant is presently delinquent or in default on any debt to the 
Federal Government, e.g., a Small Business Administration loan, a U.S. 
Guaranteed Student loan, a debt to the Public Health Service, or where 
there is a judgment lien against the applicant's property for a debt 
owed to the Government. The applicant may not be approved for the loan 
until the delinquent account has been brought current or satisfactory 
arrangements have been made between the borrower and the Federal agency 
owed, or the judgment is paid or otherwise satisfied. Of course, the 
applicant must also be able to otherwise qualify for the loan from an 
income and remaining credit standpoint. Refinancing under VA's interest 
rate reduction refinancing provisions, however, is allowed even if the 
borrower is delinquent on the VA guaranteed mortgage being refinanced. 
Prior approval processing is required in such cases.
    (6) Absence of credit history. The fact that recently discharged 
veterans may have had no opportunity to develop a credit history will 
not preclude a determination of satisfactory credit. Similarly, other 
loan applicants may not have established credit histories as a result 
of a preference for purchasing consumer items with cash rather than 
credit. There are also cases in which individuals may be genuinely wary 
of acquiring new obligations following bankruptcy, consumer credit 
counseling (debt proration), or other disruptive credit occurrence. The 
absence of the credit history in these cases will not generally be 
viewed as an adverse factor in credit underwriting. However, before a 
favorable decision is made for cases involving bankruptcies or other 
derogatory credit factors, efforts should be made to develop evidence 
of timely payment of non-installment debts such as rent and utilities. 
It is anticipated that this special consideration in the absence of a 
credit history following bankruptcy would be the rare case and 
generally confined to bankruptcies that occurred over 3 years ago.
    (7) Consumer credit counseling plan. If a veteran, or veteran and 
spouse, have prior adverse credit and are participating in a Consumer 
Credit Counseling plan, they may be determined to be a satisfactory 
credit risk if they demonstrate 12 months' satisfactory payments and 
the counseling agency approves the new credit. If a veteran, or veteran 
and spouse, have good prior credit and are participating in a Consumer 
Credit Counseling plan, such participation is to be considered a 
neutral factor, or even a positive factor, in determining 
creditworthiness.
    (8) Re-establishment of satisfactory credit. In circumstances not 
involving bankruptcy, satisfactory credit is generally considered to be 
reestablished after the veteran, or veteran and spouse, have made 
satisfactory payments for 12 months after the date of the last 
derogatory credit item.
    (9) Long-term v. short-term debts. All known debts and obligations 
including any alimony and/or child support payments of the borrower and 
spouse must be documented. Significant liabilities, to be deducted from 
the total income in determining ability to meet the mortgage payments 
are accounts that, generally, are of a relatively long term, i.e., 10 
months or over. Other accounts for terms of less than 10 months must, 
of course, be considered in determining ability to meet family 
expenses. Certainly, any severe impact on the family's resources for 
any period of time must be considered in the loan analysis. For 
example, monthly payments of $300 on an auto loan with a remaining 
balance of $1,500 would be included in those obligations to be deducted 
from the total income regardless of the fact that the account can be 
expected to pay out in 5 months. It is clear that the applicant will, 
in this case, continue to carry the burden of those $300 payments for 
the first, most critical months of the home loan.
    (10) Requirements for verification. If the credit investigation 
reveals debts or obligations of a material nature which were not 
divulged by the applicant, lenders must be certain to obtain 
clarification as to the status of such debts from the borrower. A 
proper analysis is obviously not possible unless there is total 
correlation between the obligations claimed by the borrower and those 
revealed by a credit report or deposit verification. Conversely, 
significant debts and obligations reported by the borrower must be 
dated. If the credit report fails to provide necessary information on 
such accounts, lenders will be expected to obtain their own 
verifications of those debts directly from the creditors. Credit 
reports and verifications must be no more than 120 days old (180 days 
for new

[[Page 24885]]

construction) to be considered valid. For loans closed automatically, 
this requirement will be considered satisfied if the date of the credit 
report or verification is within 120 days (180 days for new 
construction) of the date the note is signed. For prior approval loans, 
this requirement will be considered satisfied if the date of the credit 
report or verification is within 120 days of the date of the 
application is received by VA. Of major significance are the 
applicant's rental history and outstanding or recently retired 
mortgages, if any, particularly prior VA loans. Lenders should be sure 
ratings on such accounts are obtained; a written explanation is 
required when ratings are not available. A determination is necessary 
as to whether alimony and/or child support payments are required. 
Verification of the amount of such obligations should be obtained, 
although documentation concerning an applicant's divorce should not be 
obtained automatically unless it is necessary to verify the amount of 
any alimony or child support liability indicated by the applicant. If 
in the routine course of processing the loan application, however, 
direct evidence is received (e.g., from the credit report) that an 
obligation to pay alimony or child support exists (as opposed to mere 
evidence that the veteran was previously divorced), the discrepancy 
between the loan application and credit report can and should be fully 
resolved in the same manner as any other such discrepancy would be 
handled. When a pay stub or leave-and-earnings statement indicates an 
allotment, the lender must investigate the nature of the allotment(s) 
to determine whether the allotment is related to a debt. Debts assigned 
to an ex-spouse by a divorce decree will not generally be charged 
against a veteran-borrower.
    (11) Job-related expenses. Known job-related expenses should be 
documented. This will include costs for any dependent care, significant 
commuting costs, etc. When a family's circumstances are such that 
dependent care arrangements would probably be necessary, it is 
important to determine the cost of such services in order to arrive at 
an accurate total of deductions.
    (12) Credit reports. Credit reports obtained by lenders on VA-
guaranteed loan applications must be either a three-file Merged Credit 
Report (MCR) or a Residential Mortgage Credit Report (RMCR). If used, 
the RMCR must meet the standards formulated jointly by the Department 
of Veterans Affairs, Federal National Mortgage Association, Federal 
Home Loan Mortgage Corporation, Federal Housing Administration, Farmers 
Home Administration, credit repositories, repository affiliated 
consumer reporting agencies and independent consumer reporting 
agencies. All credit reports obtained by the lender must be submitted 
to VA.
    (h) Borrower's personal and financial status. The number and ages 
of dependents have an important bearing on whether income after 
deduction of fixed charges is sufficient to support the family. Type 
and duration of employment of both the borrower and spouse are 
important as an indication of stability of their employment. The amount 
of liquid assets owned by the borrower or spouse, or both, is an 
important factor in determining that they have sufficient funds to 
close the loan, as well as being significant in analyzing the overall 
qualifications for the loan. (It is imperative that adequate cash 
assets from the veteran's own resources are verified to allow the 
payment (see Sec. 36.4336(a)(3)) of any difference between the sales 
price of the property and the loan amount, in addition to that 
necessary to cover closing costs, if the sales price exceeds the 
reasonable value established by VA.) Verifications must be no more than 
120 days old (180 days for new construction) to be considered valid. 
For loans closed on the automatic basis, this requirement will be 
considered satisfied if the date of the deposit verification is within 
120 days (180 days for new construction) of the date of the veteran's 
application to the lender. For prior approval loans, this requirement 
will be considered satisfied if the verification of employment is dated 
within 120 days of the date the application is received by VA. Current 
monthly rental or other housing expense is an important consideration 
when compared to that to be undertaken in connection with the 
contemplated housing purchase.
    (i) Estimated monthly shelter expenses. It is important that 
monthly expenses such as taxes, insurance, assessments and maintenance 
and utilities be estimated accurately based on property location and 
type of house; e.g., old or new, large or small, rather than using or 
applying a ``rule of thumb'' to all properties alike. Maintenance and 
utility amounts for various types of property should be realistically 
estimated. Local utility companies should be consulted for current 
rates. The age and type of construction of a house may well affect 
these expenses. In the case of condominiums or houses in a planned unit 
development (PUD), the monthly amount of the maintenance assessment 
payable to a homeowners association should be added. If the amount 
currently assessed is less than the maximum provided in the covenants 
or master deed, and it appears likely that the amount will be 
insufficient for operation of the condominium or PUD, the amount used 
will be the maximum the veteran could be charged. If it is expected 
that real estate taxes will be raised, or if any special assessments 
are expected, the increased or additional amounts should be used. In 
special flood hazard areas, include the premium for any required flood 
insurance.
    (j) Lender responsibility. (1) Lenders are fully responsible for 
developing all credit information; i.e., for obtaining verifications of 
employment and deposit, credit reports, and for the accuracy of the 
information contained in the loan application.
    (2) Verifications of employment and deposits, and requests for 
credit reports and/or credit information must be initiated and received 
by the lender.
    (3) In cases where the real estate broker/agent or any other party 
requests any of this information, the report(s) must be returned 
directly to the lender. This fact must be disclosed by appropriately 
completing the required certification on the loan application or report 
and the parties must be identified as agents of the lender.
    (4) Where the lender relies on other parties to secure any of the 
credit or employment information or otherwise accepts such information 
obtained by any other party, such parties shall be construed for 
purposes of the submission of the loan documents to VA to be authorized 
agents of the lender, regardless of the actual relationship between 
such parties and the lender, even if disclosure is not provided to VA 
under paragraph (j)(3) of this section. Any negligent or willful 
misrepresentation by such parties shall be imputed to the lender as if 
the lender had processed those documents and the lender shall remain 
responsible for the quality and accuracy of the information provided to 
VA.
    (5) All credit reports secured by the lender or other parties as 
identified in paragraphs (j)(3) and (j)(4) of this section shall be 
provided to VA. If updated credit reports reflect materially different 
information than that in other reports, such discrepancies must be 
explained by the lender and the ultimate decision as to the effects of 
the discrepancy upon the loan application fully addressed by the 
underwriter.
    (k) Lender certification. Lenders originating loans are responsible 
for determining and certifying to VA on the appropriate application or 
closing form that the loan meets all statutory and regulatory 
requirements. Lenders will

[[Page 24886]]

affirmatively certify that loans were made in full compliance with the 
law and loan guaranty regulations as prescribed in this section.
    (1) Definitions. The definitions contained in part 42 of this title 
and the following definitions are applicable in this section.
    (i) Another appropriate amount. In determining the appropriate 
amount of a lender's civil penalty in cases where the Secretary has not 
sustained a loss or where two times the amount of the Secretary's loss 
on the loan involved does not exceed $10,000, the Secretary shall 
consider:
    (A) The materiality and importance of the false certification to 
the determination to issue the guaranty or to approve the assumption;
    (B) The frequency and past pattern of such false certifications by 
the lender; and
    (C) Any exculpatory or mitigating circumstances.
    (ii) Complaint includes the assessment of liability served pursuant 
to this section.
    (iii) Defendant means a lender named in the complaint.
    (iv) Lender includes the holder approving loan assumptions pursuant 
to 38 U.S.C. 3714.
    (2) Procedures for certification. (i) As a condition to VA issuance 
of a loan guaranty on all loans closed on or after October 27, 1994, 
and as a prerequisite to an effective loan assumption on all loans 
assumed pursuant to 38 U.S.C. 3714 on or after the effective date of 
these regulations, the following certification shall accompany each 
loan closing or assumption package:

    The undersigned lender certifies that the (loan) (assumption) 
application, all verifications of employment, deposit, and other 
income and credit verification documents have been processed in 
compliance with 38 CFR part 36; that all credit reports obtained or 
generated in connection with the processing of this borrower's 
(loan) (assumption) application have been provided to VA; that, to 
the best of the undersigned lender's knowledge and belief the (loan) 
(assumption) meets the underwriting standards recited in chapter 37 
of title 38 United States Code and 38 CFR part 36; and that all 
information provided in support of this (loan) (assumption) is true, 
complete and accurate to the best of the undersigned lender's 
knowledge and belief.

    (ii) The certification shall be executed by an officer of the 
lender authorized to execute documents and act on behalf of the lender.
    (3) Any lender who knowingly and willfully makes a false 
certification required pursuant to Sec. 36.4337(k)(2) shall be liable 
to the United States Government for a civil penalty equal to two times 
the amount of the Secretary's loss on the loan involved or to another 
appropriate amount, not to exceed $10,000, whichever is greater.
    (l) Assessment of liability. (1) Upon an assessment confirmed by 
the Under Secretary for Benefits, in consultation with the 
Investigating Official, that a certification, as required in this 
section, is false, a report of findings of the Under Secretary for 
Benefits shall be submitted to the Reviewing Official setting forth:
    (i) The evidence that supports the allegations of a false 
certification and of liability;
    (ii) A description of the claims or statements upon which the 
allegations of liability are based;
    (iii) The amount of the VA demand to be made; and
    (iv) Any exculpatory or mitigating circumstances that may relate to 
the certification.
    (2) The Reviewing Official shall review all of the information 
provided and will either inform the Under Secretary for Benefits and 
the Investigating Official that there is not adequate evidence, that 
the lender is liable, or serve a complaint on the lender stating:
    (i) The allegations of a false certification and of liability;
    (ii) The amount being assessed by the Secretary and the basis for 
the amount assessed;
    (iii) Instructions on how to satisfy the assessment and how to file 
an answer to request a hearing, including a specific statement of the 
lender's right to request a hearing by filing an answer and to be 
represented by counsel; and
    (iv) That failure to file an answer within 30 days of the complaint 
will result in the imposition of the assessment without right to appeal 
the assessment to the Secretary.
    (m) Hearing procedures. A lender hearing on an assessment 
established pursuant to this section shall be governed by the 
procedures recited at 38 CFR 42.8 through 42.47.
    (n) Additional remedies. Any assessment under this section may be 
in addition to other remedies available to VA, such as debarment and 
suspension pursuant to 38 U.S.C. 3704 and part 44 of this title or loss 
of automatic processing authority pursuant to 38 U.S.C. 3702, or other 
actions by the Government under any other law including but not limited 
to title 18, U.S.C. and 31 U.S.C. 3732.

(Authority: 38 U.S.C. 3703, 3710.)
[FR Doc. 97-11808 Filed 5-6-97; 8:45 am]
BILLING CODE 8320-0-P