# Loan Guaranty: Loan Servicing and Claims Procedures Modifications

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A08-337

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** February 1, 2008
- **Citation:** 73 FR 6294

## Text

DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 36
RIN 2900-AL65
Loan Guaranty: Loan Servicing and Claims Procedures Modifications

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This document establishes a new series for the Department of Veterans Affairs (VA) Loan Guaranty regulations, which will be phased in over an approximately eleven-month timeframe, as mortgage servicing industry segments “go live” on a new computer-based tracking system being established by VA. This new series replicates existing regulations for most aspects of the VA Loan Guaranty program, but also includes changes related to several aspects of the servicing and liquidating of guaranteed housing loans in default, and the submitting of guaranty claims by loan holders. Specific topics revised in the new 4800 series include: increasing authority of servicers to implement loss-mitigation options, making incentive payments to servicers for successful loss-mitigation options, establishing a system of measuring and ranking servicer performance, establishing updated reporting requirements, permitting loan holders to review liquidation appraisals, requiring holders to calculate the net value of the security property prior to foreclosure, establishing a timeframe for when foreclosure of a defaulted loan should be completed, limiting the amount of interest and other fees and charges that may be included in a guaranty claim, establishing allowable attorneys fees to be included in the guaranty claim, establishing a deadline for the submission of guaranty claims, modifying the requirements for title evidence for properties conveyed to VA following foreclosure, modifying the requirements for how long a holder must maintain records relating to loans for which VA has paid a claim on the guaranty, and eliminating the requirement for the submission of legal procedural papers to VA. This document also includes specific revisions to three rules related to increased attorney fee allowances, establishment of a time limit for filing a claim under the guaranty, and granting authority for the Servicer Appraisal Processing Program that will be effective for all program participants upon publication of these rules.

DATES:

This rule is effective February 1, 2008.

FOR FURTHER INFORMATION CONTACT:

Mike Frueh, Assistant Director for Loan Management (261), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, at 202-461-9521. (This is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION:

Statutory Background

Under 38 U.S.C. chapter 37, VA guarantees loans made by private lenders to veterans for the purchase, construction, and refinancing of homes owned and occupied by veterans.

Business Process Reengineering Review

Beginning in 2001, VA conducted an internal, in-depth review of the entire Loan Administration process that was effectively a business process reengineering (BPR) effort. “Loan Administration” includes the servicing of existing loans, dealing with loans in default and loans being terminated, and the processing of claims by loan holders under the guaranty after defaulted loans have been foreclosed or otherwise terminated. Loan Administration also includes efforts by VA and private loan holders to assist homeowners whose loans are in default to cure the default, retain their home if possible, or find other means short of foreclosure. VA's BPR team recommended revising the Loan Administration process to reflect changes in the loan servicing industry in recent years, as well as advances in technology. VA's BPR team also recommended placing greater reliance on private sector servicing in accordance with VA guidelines, with VA using advanced technology to oversee servicing actions.

Regulatory Background

On February 18, 2005 (70 FR 8472), VA proposed to amend its loan guaranty regulations in order to implement the following recommendations proposed by the BPR team: giving servicers increased authority to implement loss-mitigation alternatives to foreclosure and paying servicers an incentive bonus for each successful loss-mitigation alternative to foreclosure; establishing a performance-based tier-ranking system for servicers; permitting qualified loan holders to review liquidation appraisals and establish the fair market value of the property; requiring loan holders to calculate the net value of properties securing loans prior to foreclosure; establishing timeframes for when VA would expect holders, exercising reasonable diligence, should be able to complete the foreclosure of defaulted loans; limiting the amount of interest and other fees and charges that may be included in a guaranty claim; establishing reasonable and customary attorney fees allowed to be claimed under the guaranty; establishing a deadline for holders to submit claims under the guaranty and to request reconsideration of denied claims; modifying the requirements for title evidence submitted to VA when the holder is conveying the property to VA following the liquidation sale; modifying the requirements for how long a holder must maintain records relating to loans for which VA has paid a claim on the guaranty; modifying the requirements for holders to report key events with regard to loans being serviced; and repealing the requirement for holders to provide VA with procedural papers in legal or equitable proceedings related to a loan on the security property. VA published a supplemental notice on November 27, 2006 (71 FR 68498), to provide specific information regarding the computer-based system that VA proposed to implement as part of the loan servicing and claims procedure modifications. VA published another supplemental notice on June 1, 2007 (72 FR 30505), to provide information on a decision to phase-in implementation of most of the new rules, based on previous comments from the industry and the development of VA's computer-based tracking system.

Discussion of Public Comments

The initial public comment period closed on April 19, 2005. VA received 51 comments from the public about various aspects of the proposed changes. The public comment period was reopened following publication of the first supplemental notice and closed December 11, 2006. VA received an additional 8 comments from the public about the proposed reporting requirements for VA's new computer-based system. The public comment period was again reopened following publication of the second supplemental notice and closed June 15, 2007. VA received 2 comments from the public about its proposed phased implementation and clarifications regarding modifications.

The final rule has been revised to incorporate changes that VA agrees are necessary in light of, or as the logical outgrowth of, the comments provided. In order to accommodate the phased implementation of the new rules, VA is establishing a new subpart F (§§ 36.4800 through 36.4893, inclusive) of part 36 that contains substantive rules identical

to those in the current rules (§§ 36.4300 through 36.4393). In addition, we redesignate those current rules as subpart B of title 38, CFR. Subpart F will be effective upon publication of this notice only for the first segment of the mortgage servicing industry, as described in the second supplemental notice published June 1, 2007 (72 FR 30505). The table below is similar to the one in that notice, and provides the effective date for the first segment that will be affected by these rules, as well as an indication of the time periods during which we expect to make these rules applicable to all other segments of the industry (although these time periods may change due to unforeseen circumstances). We will publish as notices in the
Federal Register
the actual applicability dates for industry segments two through nine.

Segment No.
Applicability date of phased-in rules (by calendar year quarter)

1
February 1, 2008.

2
2nd Quarter, 2008.

3
2nd Quarter, 2008.

4
4th Quarter, 2008.

5
2nd Quarter, 2008.

6
3rd Quarter, 2008.

7
3rd Quarter, 2008.

8
3rd Quarter, 2008.

9
4th Quarter, 2008.

Subpart B will continue to be the governing rules for industry segments until the dates they become subject to the new subpart F. VA is aware that certain portions of subpart B, specifically §§ 36.4302 and 36.4312, are in need of revision to match recent legislative amendments, as well as to update VA positions on certain requirements. However, in order to avoid confusion with those issues not directly impacting the servicing and liquidating of guaranteed housing loans in default, and the submitting of guaranty claims by loan holders, those changes have not been included in this rulemaking. Instead, VA is preparing proposed changes to §§ 36.4302 and 36.4312 in subpart B and in the corresponding §§ 36.4802 and 36.4813 in the new subpart F, and will request comments from the public on those changes after the effective date of these new rules.

In our review of subpart B, we also identified a number of minor errors, such as erroneous cross-references, typographical errors, and hanging provisions (flush text) that needed reformatting, and have corrected these wherever necessary in the new subpart F. However such corrections have not affected the rights, responsibilities, or obligations of program participants.

The following paragraphs discuss the comments VA received in response to the proposed rules and the supplemental notices. The paragraphs are in order by the new subpart F section number and provide VA responses. The preamble does not discuss sections about which we did not receive any public comment. The preamble also does not discuss any section that is substantively the same as its counterpart in §§ 36.4300 through 36.4393. However, such a section may contain conforming renumbering changes and/or technical revisions or reorganization. This final rule includes three changes to subpart B in §§ 36.4313(b)(5), 36.4321(d), and 36.4344a, and the comments and rationale for those changes are the same as those in the comments and responses on the new final rules in corresponding §§ 36.4814(b)(5), 36.4824(d), and 36.4848.

36.4800 Applicability of §§ 36.4800 Through 36.4893, Inclusive

Comment:
VA should consider the time needed to adapt industry servicing systems and carefully test all aspects of the proposed electronic reporting requirements. This could also include special circumstances such as recent acquisitions, changes in servicing platforms, or other unforeseen situations.

VA Response:
VA has carefully considered the factors that are essential to the success of its new electronic reporting environment, and determined that a phased implementation by industry segment offers the best chance for success. Accordingly, VA has established nine industry segments for program participants, with each segment “going live” on VA's new computer-based tracking system over an approximately 11-month timeframe. Each phase of implementation will include time for data clean-up, system modifications, defect corrections, testing of interfaces and data transmission, and review of lessons learned before initiating the next phase. Throughout this phase-in process, VA will remain flexible in adjusting its implementation schedule in order to accommodate participants' unique circumstances, such as changes in servicing platforms or unforeseen events. In addition, VA has the authority under § 36.4838 to administratively offer relief to entities not meeting VA requirements, such as electronic reporting.

36.4801 Definitions

Comments:
VA should provide its definitions of “repayment plans” and “special forbearances.”

VA Response:
When VA published the proposed rule to replace the existing § 36.4317 with an arrangement to establish incentive payments for loss mitigation options, VA believed that the mortgage industry had a common understanding of the basic concepts of repayment plans and special forbearance agreements. However, while reviewing comments, and in researching definitions established by major industry participants (Fannie Mae, Freddie Mac, and the Department of Housing and Urban Development [HUD]), VA realized that each entity has its own slightly different definition for each of these terms. Accordingly, VA has added detailed definitions of “repayment plan” and “special forbearance” in this final rule in § 36.4801 to avoid any confusion as to what is required for each of these types of loss mitigation actions. VA is also clarifying the role of the servicer by adding a definition to state that the servicer is the entity which will be assigned a tier ranking based on its performance and will receive any incentive payment on a loan it services for the loan holder. The definitions are only minor clarifications of basic concepts customary in the loan servicing industry and do not impose any new requirements or take away any substantive rights of program participants. VA has listed all of the loss mitigation options in § 36.4819 in their preferred order of consideration (i.e., a hierarchy for review), but recognizes that individual circumstances may lead to “out of the ordinary” procedures. VA also plans to provide more detailed examples and advice on a number of issues, including repayment plans and special forbearances, as part of the training it will provide to servicers after publishing these rules.

Comment:
VA should clarify the payment of incentives for successful loss mitigation efforts.

VA Response:
VA concurs. The holder is the entity ultimately responsible for compliance with VA regulations and under § 36.4801 “Holder” includes “the authorized servicing agent of the lender or assignee or transferee.” However, for purposes of tier ranking (§ 36.4818) and loss mitigation options and incentives (§ 36.4819), VA's intent is to measure performance of the actual loan servicer and reward it accordingly. In order to make this distinction clearer, we provide a definition in § 36.4801 of “servicer.” The authorized servicer is

either the servicing agent of a holder; or the holder itself, if the holder is performing all servicing functions on a loan. The servicer is typically the entity reporting all loan activity to VA and filing claims under the guaranty on behalf of the holder. VA will generally issue guaranty claims and other payments to the servicer, who will be responsible for forwarding funds to the holder in accordance with its servicing agreement. Incentives under § 36.4819 will generally be paid directly to the servicer based on its performance under that section and in accordance with its tier ranking under § 36.4818.

Comment:
VA should clarify the procedures and implications of debt reductions used to ensure a property is eligible for conveyance to VA.

VA Response:
In § 36.4823, we clarify the procedures to be followed to reduce debts in order to gain the right to convey to VA properties acquired at liquidation sales. However, to avoid confusion with multiple definitions of similar terms, we do not use the terms “Indebtedness”, “Specified amount” and “Unguaranteed portion of the indebtedness” in this final rule in § 36.4801; that section will instead use the term “Total indebtedness.” The terms are defined in § 36.4301 because they are used primarily in §§ 36.4320 and 36.4321. However, the new final §§ 36.4823 and 36.4824 do not contain them and refer only to the total indebtedness as defined in the statute and the new final § 36.4801.

The other definitions included in § 36.4801 that are different from those in § 36.4301 were previously proposed.

36.4809 Transfer of Title by Borrower or Maturity by Demand or Acceleration

In § 36.4308(g), we refer to a time period specified in § 36.4316, which in turn establishes a three-month waiting period prior to the filing of a notice of intention to foreclose. The reporting and processing of defaults is handled differently under the new rules in §§ 36.4800 through 36.4893, and § 36.4818 does not refer to a waiting period. Therefore, in § 36.4809(g), we do not refer to another section but rather refer to the actual time frame of three months.

36.4814 Advances and Other Charges

Comment:
VA should review its proposed foreclosure attorney fee schedule, which is very similar to those published by HUD, Fannie Mae, and Freddie Mac in 2001, to account for reasonable increases in living costs over the past several years, as well as other cost increases since that time due to increased labor and operational expenses for attorneys.

VA Response:
VA concurs. VA has carefully reviewed the proposed foreclosure attorney fee schedule and has adjusted the amounts in accordance with the information provided in the comments, as well as updated information obtained from other sources. The table provided below, as referenced in final rules § 36.4313(b)(5)(ii) and § 36.4814(b)(5)(ii), is reasonably consistent with the fees allowed by other agencies for comparable work, and the commitment in paragraph (b)(5)(ii) to review the schedule annually will ensure the opportunity to timely address any imbalance in the schedule. In addition, VA has slightly modified the proposed language in new final rules § 36.4313(b)(5)(iii) and § 36.4814(b)(5)(iii) to allow additional trustee fees, above those allowed for legal services, when the trustee conducting the sale must be a Government official under local law, or if an individual other than the foreclosing attorney (or any employee of that attorney) is appointed as part of judicial proceedings, and local law also establishes the fees payable for the services of the public or judicially appointed trustee.

VA intends to reimburse only for attorney fees for services related to foreclosure of loans. Most of the attorneys commenting on the proposed rule reported that over the past five years many servicers have been outsourcing the foreclosure oversight process (i.e., hiring third parties to perform functions previously handled as part of the servicer's routine duties), and firms providing such outsourcing services are charging attorney firms a fee for providing the file needed to initiate the foreclosure action. While VA understands that servicers may find efficiencies in outsourcing certain functions, the cost for such outsourcing must be considered as an operating expense of the firm contracting for the outsourcing; i.e., the servicer. VA cannot consider outsourcing fees to be part of the cost of an attorney fee for completing a foreclosure. Consistent with our proposed rule, VA is establishing maximum amounts for legal services in each State, and those amounts are intended to reimburse for reasonable attorney fees. This is consistent with the position taken by Freddie Mac, which prohibits payment for referral fees, packaging or other similar fees, and new case start-up fees in its Single Family Seller/Servicer Guide, Volume 2, Chapter 71, section 71.18. Fannie Mae also notes in its 2006 Servicing Guide, Part VIII, Chapter 1, section 104.03, that it will not reimburse a servicer for legal fees and expenses related to actions that are essentially servicing functions.

Comment:
VA should allow a fee to cover the costs of restarting a foreclosure that has been postponed, for example, by the filing of a bankruptcy petition. This would be in addition to the reimbursement for obtaining relief from the bankruptcy stay.

VA Response:
VA concurs. VA recognizes that this is occurring more frequently, and is a true cost of doing business. Therefore, VA has allowed in the table provided herein in accordance with the final rules § 36.4313(b)(5)(ii) and § 36.4814(b)(5)(ii) an additional $350 “foreclosure restart” fee when a foreclosure sale is postponed or cancelled through no fault of the servicer or its foreclosure attorney. This includes but is not limited to bankruptcy, VA requested delay, property damage, hazardous conditions, condemnation, natural disaster, property seizure, or relief under the Servicemembers Civil Relief Act.

Comment:
VA should consider increasing its maximum allowable bankruptcy fees, for reasons similar to those suggested for foreclosure fees.

VA Response:
VA concurs. VA has reviewed the fees allowed by other entities, as well as the arguments made for increasing bankruptcy fees. VA believes that a modest adjustment is appropriate at this time and is revising the table referenced in the final rules in § 36.4313(b)(5)(ii) and § 36.4814(b)(5)(ii) to allow attorney fees of $650 (Chapter 7) or $850 (initial Chapter 13) for obtaining bankruptcy releases directly related to loan termination. For additional relief filed under either chapter, VA will allow an additional $250. VA will continue to monitor these fees on an annual basis.

The current legal services table is as follows:

Jurisdiction
Non-judicial foreclosure

Judicial
foreclosure

Deed-in-lieu of foreclosure

Foreclosure restart fee
2

Chapter 13

release
3

Chapter 7

release
3

Alabama
550
N/A
350
350
850
650

Alaska
1200
N/A
350
350
850
650

Arizona
625
N/A
350
350
850
650

Arkansas
750
N/A
350
350
850
650

California
600
N/A
350
350
850
650

Colorado
800
N/A
350
350
850
650

Connecticut
N/A
1250
350
350
850
650

Delaware
N/A
950
350
350
850
650

District of Columbia
600
N/A
350
350
850
650

Florida
N/A
1200
350
350
850
650

Georgia
600
N/A
350
350
850
650

Guam
1200
N/A
350
350
850
650

Hawaii
N/A
1850
350
350
850
650

Idaho
600
N/A
350
350
850
650

Illinois
N/A
1100
350
350
850
650

Indiana
N/A
1000
350
350
850
650

Iowa
550
850
350
350
850
650

Kansas
N/A
850
350
350
850
650

Kentucky
N/A
1100
350
350
850
650

Louisiana
N/A
900
350
350
850
650

Maine
N/A
1250
350
350
850
650

Maryland
800
N/A
350
350
850
650

Massachusetts
N/A
1250
350
350
850
650

Michigan
650
N/A
350
350
850
650

Minnesota
650
N/A
350
350
850
650

Mississippi
550
N/A
350
350
850
650

Missouri
650
N/A
350
350
850
650

Montana
600
N/A
350
350
850
650

Nebraska
600
850
350
350
850
650

Nevada
600
N/A
350
350
850
650

New Hampshire
900
N/A
350
350
850
650

New Jersey
N/A
1300
350
350
850
650

New Mexico
N/A
900
350
350
850
650

New York—Western Counties
1

N/A
1250
350
350
850
650

New York—Eastern Counties
N/A
1800
350
350
850
650

North Carolina
550
N/A
350
350
850
650

North Dakota
N/A
900
350
350
850
650

Ohio
N/A
1100
350
350
850
650

Oklahoma
N/A
900
350
350
850
650

Oregon
675
N/A
350
350
850
650

Pennsylvania
N/A
1250
350
350
850
650

Puerto Rico
N/A
1100
350
350
850
650

Rhode Island
900
N/A
350
350
850
650

South Carolina
N/A
850
350
350
850
650

South Dakota
650
850
350
350
850
650

Tennessee
550
N/A
350
350
850
650

Texas
550
N/A
350
350
850
650

Utah
600
N/A
350
350
850
650

Vermont
N/A
950
350
350
850
650

Virginia
600
N/A
350
350
850
650

Virgin Islands
N/A
1100
350
350
850
650

Washington
675
N/A
350
350
850
650

West Virginia
550
N/A
350
350
850
650

Wisconsin
N/A
1100
350
350
850
650

Wyoming
600
N/A
350
350
850
650

1
Western Counties of New York are: Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Livingston, Monroe, Niagara, Ontario, Orleans, Steuben, Wayne, Wyoming, and Yates. The remaining counties are in Eastern New York.

2
When a foreclosure is stopped due to circumstances beyond control of the holder or its attorney (including, but not limited to bankruptcy, VA-requested delay, property damage, hazardous conditions, condemnation, natural disaster, property seizure, or relief under the Servicemembers Civil Relief Act) and then restarted, VA will allow the restart fee in addition to the base foreclosure attorney fee.

3
For each additional relief of stay under either chapter, VA will pay $250.

Comment:
VA should publish a single national reimbursable fee schedule so that servicers will be able to accurately calculate total indebtedness. VA should provide at least 30 days advance notice of changes in fees to allow for system updates and procedural modifications.

VA Response:
VA does not concur at this time because this information is maintained at the Regional Loan Center (RLC) level in order to be updated as quickly as possible when local changes occur, so that holders may be reimbursed for actual expenses as they occur, rather than experiencing a lag time. The current schedules provide the local fees and expenses and we believe that this data should continue to be provided at the local level. However, VA will initiate plans to post such a national schedule of fees when this can be accomplished in a timely manner.

36.4815 Loan Modifications

Comment:
VA should not require holders to reduce the interest rate on a loan modification where market interest rates have decreased since the date of loan origination.

VA Response:
VA does not concur, but is changing the new final rule in § 36.4815 in an effort to make it easier for servicers to administer. The existing VA regulation dealing with loan modifications (§ 36.4314) allows no change to the interest rate on the loan. In fact, another regulation (§ 36.4311(c)) specifically states that interest in excess of the rate reported by the lender when requesting evidence of guaranty shall not be payable. The vast majority of VA-guaranteed loans are securitized in GNMA (Government National Mortgage Association) insured pools, which require the holder to purchase the loan from the pool in order to modify the loan. The proposed change recognized the difficulty faced by loan servicers in attempting to resecuritize loans with interest rates well below the market average, and thus allowed for increasing interest rates on modifications when market conditions dictate. However, VA also believes it is only fair to veterans to similarly reduce interest rates when market rates have decreased since loan origination. The impact of reduced interest rates would be similar to the effect of other creditworthy borrowers refinancing at lower interest rates, and should not adversely affect VA lenders. Therefore, VA is not departing from requiring an interest rate reduction where market interest rates have decreased since loan origination. VA is, however, removing the one percent cap on interest rate increases that had been contained in the proposed rule so that modifications will become a more widely used tool to help veterans retain their homes. VA is also slightly modifying the language that had been in paragraph (c) of the proposed rule in § 36.4314 to make adjustments easier, by allowing the maximum interest rate to be based on a month-end rate, rather than requiring a daily adjustment as the proposed rule had provided. Therefore, § 36.4812(c) is changed to allow a higher interest rate on a modified loan. The final rule in § 36.4815 is changed as described above to remove the one percent cap on increases and to clarify the date to be used in establishing the new maximum interest rate allowable on a modified loan.

Comment:
VA should increase the guaranty on a modified loan to match the percentage guaranteed at loan origination, rather than only allowing an increase in the amount of guaranty if it would otherwise provide less than 25% guaranty of the modified loan amount.

VA Response:
VA does not concur. The proposal in § 36.4314(g) to increase the guaranty on a modified loan to 25% of the loan amount was another effort to help modified VA-guaranteed loans qualify for resecuritization. Under the existing § 36.4314, the amount of the guaranty does not increase upon loan modification, which means that the percentage of guaranty, in effect, will decrease if the modified loan amount is greater than the original loan amount. This is important because all VA-guaranteed loans greater than $144,000 at origination have a maximum 25% guaranty, and the average new loan is often well above that amount. Under the existing § 36.4314 any such loan being modified would retain the same amount of guaranty, and thus have an effective percentage of guaranty less than 25% whenever the modified loan amount is greater than the original loan amount. This final rule in § 36.4815(h) (due to minor realignment of the section paragraphs) allows the guaranty amount on the modified loan to increase up to 25% of the modified loan amount, subject to the maximum amount of guaranty allowable under the law. This should be sufficient to allow repooling in a new GNMA-insured security, and provide adequate risk sharing for the modified loan among VA, the holder, and GNMA. Therefore, no further revision is necessary, other than conforming language in §§ 36.4802(h) and 36.4824(a).

Comment:
VA should not require the same underwriting standards for loan modifications as those used at loan origination.

VA Response:
VA does not concur. VA's existing § 36.4314(a) governing loan modifications requires that the holder determine that the borrower is a satisfactory credit risk, and the proposed rule did the same by referencing the criteria in § 36.4337. In establishing that the veteran is a satisfactory credit risk, there must be an analysis of the veteran's income and obligations, as well as a review of the credit history. The proposed rule specifically addressed the issue of credit history with respect to the event(s) that led to the need for loan modification, and the criteria in § 36.4337 provide for the acknowledgement of compensating factors to address issues that might otherwise preclude the extension of credit. VA therefore believes the proposed regulation was sufficiently flexible to accommodate the assessment of the creditworthiness of borrowers who seek to modify their loans, and no changes are necessary in the final § 36.4815(a). A specific comment requested that the use of “in-file” credit reports be allowed to reduce costs, and VA agrees this will be in accordance with the way its underwriting criteria have been interpreted in order to expedite processing.

Comment:
VA should make provision for other expenses of modification not being rolled into the new loan.

VA Response:
VA concurs. The existing § 36.4314 makes no provision for inclusion of any expenses in the modified loan amount. The proposed rule provided that only certain items could be included in the modified indebtedness. VA carefully reviewed the comments on this subject and is clarifying § 36.4815(e) so that it addresses all possible expenses of modification. In addition to allowing holders to include unpaid principal, accrued interest, and deficits in the taxes and insurance impound accounts in the modified indebtedness, holders will also be allowed to capitalize advances required to preserve their lien position, such as homeowner association fees, special assessments, water and sewer liens, etc. By limiting the items that may be included in the modified loan indebtedness, VA is attempting to protect both the interests of the Government and the veteran borrower by keeping the potential loan-to-value (LTV) ratio as low as possible, while recognizing that it may often exceed 100%. In a case where modification is determined to be the best alternative early in the course of a default, there will be little else in the way of other fees and expenses that need to be paid. In such a case the borrower should be able to handle those other costs as a demonstration of creditworthiness, and after including the expenses allowed by the new final rule in the modified loan amount, the resulting LTV ratio may not be significantly different than at loan origination. If a default has continued for quite some time before modification is deemed feasible, then it is likely that the additional fees and costs may have accrued to a sum equal to one or more monthly mortgage payments. VA never envisioned that such fees and costs would be forgiven by the loan holder. Because the modification process involves some period when regular payments are not made on the loan, the borrower should be able to accumulate funds to cover the fees and costs accrued during the default, rather than having them rolled into the modified loan indebtedness. This is similar to the HUD requirements for modifications. As for any costs associated with processing the modification, VA expects that the incentives paid for successful modifications will offset such expenses, and VA will not allow any processing costs to be charged to the borrower as stated in the final § 36.4815(f).

Comment:
VA should not require that all current owners occupy the property

and should pay for a title insurance policy covering the modified loan.

VA Response:
VA agrees that occupancy should not be a requirement because the basic program requirements do not require continued occupancy in order for the guaranty to remain in effect (i.e., at some point a veteran borrower may move from the home securing the VA-guaranteed loan, but that does not invalidate the guaranty). Hence, § 36.4815(a) will not require that all current owners occupy the property.

As for title insurance policies, existing VA regulation § 36.4828(b) does require that holders obtain and retain a lien of proper dignity against the security property, and title insurance is often used at loan origination to satisfy this requirement. If a holder decides to require title insurance in connection with a loan modification to ensure its lien status, then VA would not object to a reasonable expense to the buyer for this service. Since in most cases a title insurance policy was obtained at loan origination, any insurance obtained at modification would only need to cover the period from loan origination to the date of modification, and it is expected that the cost for a title endorsement, or other form of insurance “update,” would be considerably less than the amount paid at loan origination. The final rule in § 36.4815(f) slightly revises the proposed rule to provide this clarification.

Comment:
VA should not require that all current owners agree to the modification.

VA Response:
VA does not concur. VA is retaining the provision in the new final rule in § 36.4815(a)(5) that all current owners must be obligated on the loan and participate in any modification, because it would not be fair to allow a change in the terms of a loan secured by a property without first notifying all parties with an ownership interest in that property and obtaining their agreement to the change. If a holder encounters unusual circumstances that lead it to believe a modification not meeting the requirements in § 36.4815(a)(1)-(6) would be beneficial to a veteran, then the case may be submitted to VA for prior approval.

Comment:
VA should not restrict the number of times that a loan may be modified because other agencies/investors have no such limits.

VA Response:
Under § 36.4314, we permit three modifications to any one loan without prior VA approval, but also may allow unlimited modifications with prior VA approval. To that extent, we agree with the comment.

However, to the extent that the comment requests unlimited modifications without VA review, VA does not concur because VA has a responsibility to ensure that loan modifications are fair to the borrower, and to protect the interests of the Government. The final rule in § 36.4815 provides sufficient flexibility to address almost all situations that may arise. Although the rule cannot address every possible circumstance, it does adequately provide for loss mitigation by authorizing holders in advance to modify the vast majority of loans, while allowing holders to seek direct approval from VA for unusual cases that do not fit the general criteria described in the regulation.

In order to avoid any misunderstandings about the authorizations granted, the final rule is modified by adding paragraph (j), which advises that the authority contained in § 36.4815 does not create a right of a borrower to have a loan modified but simply authorizes the loan holder to modify a loan in certain situations without the prior approval of the Secretary. This is in keeping with past VA policy and court decisions over the years that have found that VA's refunding program (§ 36.4820) is not a veteran's benefit, but rather an administrative option established by the regulation to enable VA to assist a veteran when VA makes the determination that the option is appropriate.

Comment:
VA should include the words “or default is imminent” in § 36. 4815(a)(1).

VA Response:
VA does not concur. The proposed rule in § 36.4314(a) included those words and the second supplemental notice proposed deleting them. As stated in the second supplemental notice, because VA is proposing a hierarchy of loss mitigation options for consideration within the new regulatory package, it would not be appropriate for a holder to consider modification of a loan until after first considering a repayment plan or a period of forbearance in order to allow loan reinstatement. Therefore, it would not normally be feasible for a holder to consider modification of a loan where default is only imminent, because that would not allow for prior consideration of a repayment plan or a period of forbearance. However, if an unusual circumstance arises, a holder may seek direct approval from VA for approval of a case that does not fit the general criteria. Therefore, the final rule in § 36.4815(a)(1) will remain as proposed in the second supplemental notice.

36.4817 Servicer Reporting Requirements

Comment:
VA should review its need for the requested data, should reduce the number of reportable items, and should eliminate the expedited, event-specific reporting.

VA Response:
VA concurs for the most part. VA has carefully reviewed the report timing and the required items in the proposed rule in § 36.4315a in light of industry comments, consultation with information technology specialists, and review of the goals and operating procedures in VA's new loan servicing environment, as well as the reporting requirements of HUD, Fannie Mae, and Freddie Mac. In conducting this review, VA identified and retained only those items for reporting that VA determined absolutely necessary to conduct proper oversight of servicer actions. That oversight must include review of servicer actions that are being newly delegated by VA, servicer actions that were previously reviewed by VA utilizing extensive paper reports provided by servicers, and servicer actions that in the past were reviewed only upon submission of various documentation from servicers. Providing this information electronically should greatly reduce the time required for interaction between VA and servicers via telephone and written communications that occurs under the present operating procedures. VA has determined that a number of items (including escrow disbursements and legal actions other than terminations) will not be included in the list of what must be reported to VA. We discuss these items later in this document, responding to specific comments. In addition, remaining items for loans not in default may all be reported on a monthly basis (i.e., no later than the seventh calendar day of the month following the month in which the event occurred), while most of the items related to loan defaults will also be required on a monthly basis, rather than within five business days of an event. VA is changing these events and most of the remaining events that must be reported expeditiously to require reporting within 7 calendar days, rather than 5 business days because most tracking systems are not equipped to calculate business days, but can easily handle computation of calendar days.

As suggested by the comments, one item previously proposed to be reported on all loans, bankruptcy filing information, will only be required on loans reported in default. Only events denoting significant action on loans

reported in default (such as referral to an attorney to initiate foreclosure, establishment of a liquidation sale date, advice that a sale has been held, etc.) will still need to be reported within seven calendar days of the event. As in the past, holders will need to notify VA within 15 calendar days of a liquidation sale when they desire to convey a property to VA.

An example of one item that was in the proposed rule § 36.4315a(c)(2) with a five business day reporting requirement was information on assumption of a VA-guaranteed loan. Existing rule § 36.4303 presently requires reporting of information on approved assumptions and unauthorized transfers of ownership. The first supplemental notice, which provided more detail on the specific events to be reported, required electronic reporting of transfer of ownership (i.e., an authorized assumption) and unauthorized transfer of ownership. In light of the comments, VA is not, under § 36.4817(c), requiring electronic reporting of unauthorized transfer of ownership, but is requiring electronic reporting of authorized transfer of ownership, which will be renamed accordingly. The final rule in § 36.4803(l)(2) continues to require the holder to notify VA within 60 days of learning of an unauthorized transfer, as in the existing § 36.4303(l)(2).

Comment:
Information on the Servicemembers Civil Relief Act should only be required if that is a reason for delay of a foreclosure sale.

VA Response:
VA concurs with deleting the requirement to report this event. If the event causes delay in loan termination, then information about it may be reported as part of the claim event reporting.

Comment:
VA should allow reporting of multiple events occurring on a single loan during a monthly reporting period.

VA Response:
VA agrees with this comment and the file reporting format will allow for multiple events to be reported on each loan.

Comment:
The requirement to report substantial equity (25% or more) will necessitate a special title search and should be deleted, as it could require servicers to upgrade their systems to load junior lien information and to calculate the equity.

VA Response:
VA concurs with deleting this requirement. VA proposed this requirement in § 36.4315a(f) in order to ensure review of cases where substantial equity could exist. However, after reviewing the other data requested and the computing capabilities offered by its new computer system, VA decided it can instead use the other reported data to calculate its own estimate of equity and take appropriate action to ensure that veterans receive every reasonable opportunity to salvage that equity prior to loss through foreclosure. Therefore, there is no requirement in the final rule to calculate or report substantial equity.

Comment:
VA should consider using the HUD Single Family Default Monitoring System (SFDMS) file layout for reporting information, rather than requesting data that may not presently be available in many loan servicing systems.

VA Response:
VA considered this possibility, but decided it was not feasible. As VA began developing the computer system that it will use to receive data from servicers, VA obtained considerable information about HUD's file layout and other systems from a leading provider of loan accounting and default tracking services, which is subcontracted to the contractor developing VA's system. As that development continued, it was clear that the information VA needs to monitor servicer activities that have been delegated will require more details than those obtained by HUD's SFDMS. This is due to different processes used by the agencies in conducting oversight, as well as making payments for incentives, acquisitions, and claims. VA has found that almost all of the data fields it is still seeking presently exist in most servicing systems. VA worked collaboratively with the providers of the most widely utilized loan servicing systems, and continued to reduce its data requirements as much as possible, in order to develop the easiest file layout and method of transmission for reporting. That layout has been posted on VA's public Web site. Therefore, VA expects that the industry will be able to easily comply with its remaining reporting requirements in § 36.4817.

Comment:
VA should consider the potential cost to servicers of the additional reporting requirements, the time needed to implement those changes, and the security risks of transmitting additional information.

VA Response:
VA has carefully considered all of those issues in developing its final reporting rule in § 36.4817.

VA recognizes that few changes can be made without some costs. However, by using a fixed width flat file layout, VA is utilizing the simplest format currently available for reporting data. Moreover, VA has developed a methodology to reduce the amount of computations required by most loan servicing platforms when extracting data from their systems to report events to VA. This should also significantly reduce the cost of changes. There will be a few additional data fields that most servicing systems will need to add over time, and VA realizes that there will be some expenses to accomplish this, but the result will be data that is available electronically rather than manually.

While there may be some programming costs incurred by servicers due to the additional reporting requirements in § 36.4817, VA expects that servicers will benefit in a number of ways. First, with the change to electronic reporting, servicers will greatly reduce their monthly expenses of reporting defaults and loan status updates via paper forms to VA, as well as reducing the time required by their employees to respond to written and telephone inquiries from VA. Second, the additional data required is for purposes of VA oversight, but that data should be of considerable value to servicers in tracking their internal servicing performance (for example, providing greater control over insoluble defaults and ensuring faster referral for termination, allowing closer review of payment plans to monitor performance, etc.). Third, having the data available electronically should eliminate many manual processes that are much more costly. VA expects there will be many more areas in which servicers will benefit from the availability of this new data.

VA is well aware that considerable lead time is needed in order to change loan servicing systems to capture additional data. VA has worked with its contractor and subcontractor to develop a phased approach to implementation of its new, computer-based tracking system, the VA Loan Electronic Reporting Interface (VALERI). VA will implement VALERI over an approximately 11-month timeframe, with program participants grouped into nine segments that will “go live” on VA's new system during designated phases of implementation. Each phase of implementation will incorporate time for data clean-up, system modifications, defect corrections, testing of interfaces and data transmission, and review of lessons learned before initiating the next phase. VA is also developing a Web portal to allow manual input of information that is not yet contained in major loan servicing systems, and for smaller servicers who may not utilize servicing system providers, although the ultimate goal is automated file transfers of all information.

Data security is of the utmost importance to VA. Servicer suggestions to delete requests for sensitive information, such as Social Security

Numbers (SSNs), have been honored as much as possible. VA will not request SSNs as part of the basic monthly reporting as originally proposed. Instead, the only request for SSNs will be when servicers report them for new loan assumers. Those SSNs and all other data will be encrypted during transmission, appropriate protocols will be established with each servicer and its loan servicing system (or provider) to ensure secure transmissions, and access to the data at VA and its contractors will be limited to authorized users.

36.4818 Servicer Tier Rankings—Temporary Procedures

Comment:
In developing its tier rankings, VA should consider a methodology that is publicly disseminated and can easily be determined by servicers based on information available to them. VA should also incorporate some allowance for the purchase of delinquent loans from other servicers.

VA Response:
VA concurs to an extent. In our development of a proposed rule to implement the tier ranking system, we will consider the negative impact of the purchase of delinquent loans from other servicers. In the preamble to this proposed rule, VA indicated an intent to model its tier ranking system after that used by the Federal Home Loan Mortgage Corporation (FHLMC), also known as Freddie Mac. After VA has collected data under its new reporting requirements for six months, VA intends to review the data and develop the criteria for ranking servicers. Those criteria will then be published in the
Federal Register
for notice and comment. Whether the final rule that implements the tier ranking system is similar to the Freddie Mac model will depend upon the data we collect and the comments we receive. VA expects that the computer system for collecting data will be operational in 2008, and proposed rules for tier ranking will be published in calendar year 2009. Accordingly, the final rule in § 36.4818 remains as proposed.

Comment:
VA should consider paying incentives at higher than the Tier II ranking during the first year, either due to some assessment of higher performance, or else based on a servicer's participation in VA's current Server Loss Mitigation Program (SLMP).

VA Response:
VA does not concur. The proposed rule § 36.4316(a) provided for four levels of tier rankings of servicers, with all servicers in Tier II for the initial ranking period as of the effective date of this rule. Because VA will have no published methodology for rating servicer performance during the first year of the new program, it would not be fair to attempt to determine which servicers should be paid at the Tier I or any other level, other than the initial Tier II rating for all servicers. While VA has had the SLMP in operation for many years, that program has not attempted to measure specific performance in a manner similar to the proposed Servicer Tier Ranking system, and the SLMP has only allowed two loss mitigation alternatives, and not the three home retention alternatives in the new program. Accordingly, it would not be fair to grant SLMP participants a higher tier ranking until the criteria for performance have been established. In any event, the proposed incentive payments for Tier II compare favorably to what VA allowed under SLMP, and have been adjusted slightly to account for the time elapsed since the initial publication of the proposed amounts, as well as changes by other agencies during that time. Therefore, the final rule in § 36.4818 remains as proposed.

36.4819 Servicer Loss Mitigation Options and Incentives

Comment:
VA should simply adopt HUD (Department of Housing and Urban Development) loss mitigation procedures, fees, and reimbursement schedules, including incentive payment upon execution of a repayment plan, rather than waiting for final or partial completion of the plan to pay for the additional work required in analyzing data and establishing a plan.

VA Response:
VA does not concur. VA carefully considered loss mitigation programs developed by HUD, Fannie Mae, Freddie Mac, and private mortgage insurers as part of its BPR project. Although most had attractive features, no one program by itself addressed all the issues of loss mitigation in the manner VA felt was necessary to ensure proper assistance to veterans, while also rewarding loan servicers in an appropriate fashion for success in mitigating potential losses.

As for the comment suggesting that incentives be paid upon execution of a repayment plan or special forbearance agreement because of the work involved in developing the plan, VA believes this is part of the normal activity of servicing a delinquent loan in order to determine whether it may be reinstated or whether the default is insoluble. While one comment was that loss mitigation efforts have historically been considered extraordinary servicing activity, VA believes that any servicer interested in properly managing its portfolio (and ensuring future servicing income) will exert reasonable efforts to obtain borrower financial information to determine the likelihood of loan reinstatement. Therefore, the incentives authorized under this section are in recognition of basic concepts customary in the loan servicing industry, and do not impose any new requirements or take away any substantive rights of program participants. However, paying an incentive simply for executing a repayment or forbearance agreement would not serve as a true incentive for developing a plan that is likely to succeed, but could instead encourage plans where success is improbable. Therefore, VA will not revise its program to make an incentive payable upon execution of a loss-mitigation alternative and the new final rules in §§ 36.4819 and 36.4822(e) and (f) (adjusted from (f) and (g)) remain generally as proposed. In order to clarify VA's intended use of the options and alternatives, they are listed in § 36.4819(b) from top to bottom in their preferred order of consideration (i.e., a hierarchy for review), but VA recognizes that individual circumstances may occasionally lead to “out of the ordinary” considerations.

Comment:
VA should provide a partial claim loss mitigation benefit similar to that offered by HUD.

VA Response:
VA does not concur. Under the HUD Partial Claim option, a mortgagee will advance funds on behalf of a mortgagor in an amount necessary to reinstate a delinquent loan (not to exceed the equivalent of 12 months PITI). The mortgagor will execute a promissory note and subordinate mortgage payable to HUD. Currently, these promissory or “Partial Claim” notes assess no interest and are not due and payable until the mortgagor either pays off the first mortgage or no longer owns the property.

The issue of a similar VA partial claim program has been discussed for many years within Congress and at VA. However, Congress has not specifically authorized VA to develop such a program. As explained above, partial claim payments are actually payments on behalf of homeowners to their loan holders, but VA has no authorization to make direct loans to borrowers to cover their delinquent payments, so a partial claim program is not feasible. Instead, VA believes that by encouraging holders to consider extended repayment plans or even loan modifications, borrowers should receive the assistance necessary to retain ownership of their homes. Therefore, VA does not concur that a partial claim program should be instituted in the new final rule in § 36.4819.

36.4820 Refunding of Loans in Default

Comment:
VA should establish a process to extend the deadline to allow for recording of documents.

VA Response:
VA does not concur. VA proposed in § 36.4318(c) to establish a deadline for submission of title documents on refunded loans, and to allow VA to impose a penalty for continued failure to comply with that deadline. VA must retain the option to take appropriate action when a holder has demonstrated a continued pattern of non-compliance with VA requests for timely delivery of documents that should be readily available, given the routine nature of loan transfers within the industry. VA has slightly modified the language to clarify that in accordance with the general rule, as applied throughout VA's regulations, notice to VA is deemed to be effective as of the date that VA receives such notice; notice from VA to others is deemed effective as of the date that VA sends or transmits such notice. If a holder encounters an occasional delay due to failure by a former servicer to adequately document a servicing transfer, for example, then VA does not expect to take the action authorized by the proposed rule in § 36.4318(c). On the other hand, if a servicer routinely fails to properly perform its duties on behalf of the holder and consistently fails to timely provide documents that should be readily available, and if the servicer fails to correct its practices after VA provides notice, then the final rule in § 36.4820(c) enables VA to focus the attention of the servicer to its problems by temporarily withholding all payments until the specific deficiencies cited by VA have been resolved. Therefore, the “process” proposed by the comment is not necessary and the final rule in § 36.4820 remains as proposed.

Comment:
VA should make the title document requirements for refunding conform to the liquidation title package requirements.

VA Response:
VA does not concur. The proposed rule § 36.4318 required provision of all legal documents required to evidence proper loan transfer. Refunding of a loan is simply an assignment, rather than a liquidation, and therefore does not involve documents establishing ownership of a property. Accordingly, the title document requirements for refunding review and conveyance of properties must be different. The final rule § 36.4820(c) remains as proposed.

36.4821 Service of Process

Comment:
VA should define “procedural papers” in more detail—for example, does this include pleadings, claim back up, etc.?

VA Response:
VA does not concur. The existing rule § 36.4319(a) requires that all “procedural papers” be provided to VA whenever a loan holder institutes suit or otherwise becomes a party in any legal or equitable proceeding brought on or in connection with the guaranteed or insured loan indebtedness, or involving title to, or other lien on, the security. The final rule § 36.4821(a) requires only that VA and the United States Attorney be provided with process when the Secretary of Veterans Affairs is actually named as a party to a legal action, which is effectively the definition of “procedural papers” that must be delivered to VA. VA has no specific requirement for the retention of pleadings or other actions in the normal course of a loan termination, although the final rule in § 36.4833 requires the holder to maintain a record of the amounts received on the obligation and disbursements chargeable thereto and the dates thereof, including copies of bills and receipts for such disbursements. This is the type of “claim backup” referenced in § 36.4824(d)(5), which provides that supporting documents will not be submitted with the claim under guaranty, but are subject to inspection as provided in § 36.4833. The final rule § 36.4821 remains as proposed.

36.4822 Loan Termination

Comment:
VA should adjust the timeframes for foreclosure and also establish automatic extensions for many different types of delays.

VA Response:
VA has reviewed all of the individual State timeframes for foreclosure in the proposed rule § 36.4319a(a), has taken into consideration the specific information provided in the comments on the processes, and is adjusting the timeframes in the final rule. In addition, VA is slightly revising the final § 36.4814(f)(2) and § 36.4824(a)(3)(ii), which describe the calculation of the maximum interest payable on a foreclosure, so that the calculation of the date to which interest will be paid shall include 210 calendar days from the due date of the last paid installment, in addition to the State calendar day timeframe for foreclosure. This is in response to comments requesting additional time for loss mitigation efforts. It equates to the present guideline used by VA in establishing interest cutoffs, in that it allows 180 days from the date of last paid installment (which is typically the time that VA requests initiation to terminate a loan), plus 30 days (which reflects the time allowed for initiation of such action under the existing § 36.4319(f)), plus the actual time to complete foreclosure. The timeframes will be reviewed as appropriate and changes published in the
Federal Register
, and maintained throughout the year on a Web site under VA's control, such as at
http://www.homeloans.va.gov.
The timeframes have been revised to reflect that the timeframes are in calendar days. The timeframes effective as of the date of this rule are as follows:

Jurisdiction
Procedure
Final event
Time frame (calendar days)

Alabama
Non-Judicial
Sale
60

Alaska
Non-Judicial
Sale
120

Arizona
Non-Judicial
Sale
120

Arkansas
Non-Judicial
Sale
90

California
Non-Judicial
Sale
150

Colorado
Non-Judicial
Sale
150

Connecticut
Judicial
Sale (Vesting Date)
180

Delaware
Judicial
Confirmation/Ratification
240

District of Columbia
Non-Judicial
Sale
60

Florida
Judicial
Confirmation/Ratification
150

Georgia
Non-Judicial
Sale
90

Guam
Non-Judicial
Sale
180

Hawaii
Judicial
Confirmation
240

Idaho
Non-Judicial
Sale
180

Illinois
Judicial
Sale
300

Indiana
Judicial
Sale
270

Iowa
Judicial
Sale
180

Non-Judicial
Sale (Filing of Affidavit)
60

Kansas
Judicial
Sale
150

Kentucky
Judicial
Confirmation
150

Louisiana
Judicial
Sale
180

Maine
Judicial
Sale
300

Maryland
Non-Judicial
Ratification Date
90

Massachusetts
Judicial Order
Sale
180

Michigan
Non-Judicial
Sale
90

Minnesota
Non-Judicial
Sale
90

Mississippi
Non-Judicial
Sale
90

Missouri
Non-Judicial
Sale
60

Montana
Non-Judicial
Sale
150

Nebraska
Judicial
Confirmation
180

Non-Judicial
Sale
120

Nevada
Non-Judicial
Sale
150

New Hampshire
Non-Judicial
Sale
90

New Jersey
Judicial
Sale
300

New Mexico
Judicial
Confirmation
180

New York—Western Counties
1

Judicial
Sale
240

New York—Eastern Counties
Judicial
Sale
270

North Carolina
Non-Judicial
Sale
120

North Dakota
Judicial
Sale
240

Ohio
Judicial
Confirmation
360

Oklahoma
Judicial
Confirmation
210

Oregon
Non-Judicial
Sale
150

Pennsylvania
Judicial
Sale
270

Puerto Rico
Judicial
Confirmation
450

Rhode Island
Non-Judicial
Sale
90

South Carolina
Judicial
Sale
180

South Dakota
Judicial
Sale
150

Non-Judicial
Sale
90

Tennessee
Non-Judicial
Sale
60

Texas
Non-Judicial
Sale
90

Utah
Non-Judicial
Sale
150

Vermont
Judicial
Sale
300

Virginia
Non-Judicial
Sale
60

Virgin Islands
Judicial
Sale
540

Washington
Non-Judicial
Sale
150

West Virginia
Non-Judicial
Sale
60

Wisconsin
Judicial—Abandoned
Confirmation
210

Judicial—Tenant Occupied
Confirmation
240

Judicial—Owner Occupied
Confirmation
330

Wyoming
Non-Judicial
Sale
90

1
Western Counties of New York are: Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Livingston, Monroe, Niagara, Ontario, Orleans, Steuben, Wayne, Wyoming, and Yates. The remaining counties are in Eastern New York.

As for automatic extensions of timeframes due to delays beyond the control of the holder, VA has been developing its system to accomplish this, based on event updates provided by holders. In determining those events that are beyond the control of the holder, VA considered the policy of HUD and the other comments provided. VA believes the largest factor causing delays in foreclosures is the filing of bankruptcy petitions, and by receiving information on such actions as part of the normal event reporting, VA will have on hand the information to automatically adjust the interest computation date when calculating the claim payable under § 36.4824.

When VA receives notice of a bankruptcy filing, the system should automatically allow up to 180 calendar days to enable the servicer to obtain relief from the bankruptcy. VA believes this should be sufficient for most single filings and may cover some multiple bankruptcy cases. If more time is needed, the servicer can request approval from VA for additional time due to delays caused by multiple bankruptcy filings.

VA believes that many of the other events mentioned in the comments as beyond the control of the holder are very infrequent and do not require a process to automatically account for those delays in claim calculation. First, this final rule provides VA the discretion to treat such delays as exceptions and then to allow the holder to justify charging additional interest if the delays extend completion of the liquidation past the timeframe calculated under § 36.4824(a)(3). Given this discretionary authority, we do not find it necessary to incorporate specific rules as to infrequent events. Furthermore, VA does not believe that additional interest should be payable for delays that are generally within the control of the loan holder, such as title issues or missing documents that the holder should have resolved in the normal course of business, rather than waiting until termination to seek resolution. However, we recognize that some delays may require detailed

review and exchange of information to establish whether they were beyond the control of the holder. VA's regulations are flexible enough to allow for this.

Comment:
VA should eliminate the requirement for a promissory note in connection with deeds-in-lieu of foreclosure and compromise sales.

VA Response:
VA concurs. VA reviewed the proposed rule, § 36.4319a(f)(v), (g)(vi), and (h), which required a promissory note in connection with certain deeds-in-lieu of foreclosure and compromise sales, as well as the comments concerning the additional work required in calculating whether a promissory note would be required, and the work necessary to actually obtain such a note. Because the purpose in authorizing deeds and compromise sales is to expedite the processing of such alternatives, and because VA has the authority in § 36.4826(e)(1) to approve a complete release of the Secretary's right to collect a debt related to payment of a claim under the loan guaranty, and the law governing the program provides in 38 U.S.C. 3703(e) that the majority of veterans will not be liable for such indebtedness following loan default, VA has decided to automatically determine that the cooperation of the borrower in completing a deed-in-lieu of foreclosure or a compromise sale is sufficient to justify VA waiver of collection of any indebtedness. Accordingly, the final version of § 36.4822 does not require the holder to obtain a promissory note in connection with a deed-in-lieu of foreclosure or a compromise sale.

VA has also removed the requirements proposed in §§ 36.4319a(f)(iii) and 36.4319a(g)(iv) that the holder determine that the estimated guaranty payment following a deed-in-lieu of foreclosure or compromise would not exceed the estimated payment if the loan proceeded to foreclosure. VA believes there will almost always be cost savings associated with deeds-in-lieu of foreclosure and compromise sales, and therefore will not require the holder to perform an additional calculation as part of the approval process. Cost savings will typically accrue from the reduced cost of a deed versus a foreclosure action, the likelihood that the borrower will be more cooperative in vacating a home after giving a deed instead of being foreclosed upon, and the probability that the home will be in better condition after the borrower gives a deed and arranges an orderly transfer of custody to the holder or VA's agent, rather than the property being abandoned due to foreclosure and subject to possible vandalism. In the case of a compromise claim, VA's requirement that the credit to the indebtedness equals or exceeds the net value of the property will generally ensure cost savings as compared to foreclosure, but even in the rare case when this does not occur, the benefit to the veteran of avoiding foreclosure through a private sale of the home is more than enough to justify acceptance of a compromise offer. The final rule in § 36.4822 incorporates the changes discussed in this section along with those not changed from the proposed rule.

36.4823 Election to Convey Security

Comment:
VA should clarify the procedures and implications of debt reductions used to ensure that a property is eligible for conveyance to VA.

VA Response:
VA has revised the applicable portions of the new final rule in § 36.4823 to clarify the procedures to be followed to reduce debts in order to gain the right to convey to VA properties acquired at liquidation sales. Under the law (38 U.S.C. 3732(c)), if the calculation by the holder shows that the net value is less than the unguaranteed portion of the loan (i.e., the eligible indebtedness minus VA's maximum claim payable under the guaranty), then the property may not be conveyed to VA. VA has had a longstanding policy, however, of allowing holders to bring such a conveyance into statutory compliance by “buying down” the debt to a level where the unguaranteed portion of indebtedness is less than the net value. In these situations, holders must waive any liability a veteran might have otherwise with regard to the amount of indebtedness bought down.

This policy would have continued under the proposal, but it would have been the holder, rather than VA, that was responsible for calculating the buy-down, if any, prior to a liquidation sale. VA received a number of comments expressing concern about the impact that any miscalculation would have on the holder, the servicer, and the veteran, and has therefore revised the final rule in § 36.4823, so that a holder may wait until after the liquidation sale to determine the amount that must be bought down. To make sure the veteran is fully informed, the holder will be required to send the borrower notice no later than 15 calendar days after receipt of VA's guaranty claim payment that the indebtedness in excess of the net value and VA's claim payment has been waived. In addition, VA is revising the final rule in § 36.4838 to designate the conveyance as of an administrative or procedural nature to allow for reasonable accommodations.

Comment:
VA should withdraw the proposal to require three year warranties when conveying property to VA, due to the additional burden this would place on servicers and foreclosure attorneys, who would bear the cost of insuring title to the property without receiving adequate compensation.

VA Response:
VA concurs. VA's goal in the proposed § 36.4320(c) was to standardize and reduce the documentation required as evidence of acceptable title on properties conveyed to the Secretary. The comments received to the proposed rule provided additional insight on many aspects of the present processes that were not clearly evident to VA previously. For example, in many jurisdictions VA was paying for title insurance policies, but had little occasion to seek indemnity under those policies and believed that purchasing title policies was not cost effective. However, the comments disclosed that many title issues were resolved through the title examination required prior to issuance of the policies. Moreover, many attorneys commented that the compensation received for their participation in the sale of title insurance served to reduce the cost they charged for foreclosure services. It appears that if VA were to eliminate title insurance as an option to establish acceptability of title on properties conveyed to VA, foreclosure attorney fees would increase and many title issues would not be discovered until well after conveyance, which could cause considerable interruption in VA's resale efforts. Accordingly, VA is withdrawing the proposed requirement for a three year warranty, and will instead attempt to standardize document requirements nationwide as much as possible, which in most cases will still include an owner's title insurance policy issued after loan termination in the name of the Secretary along with minimal other documents, such as the state-specific foreclosure document, the original deed of trust or mortgage, special warranty deed from the holder to the Secretary, an original or a copy of mortgagee's title policy, loan assignments, and appointment of substitute trustee. This information is maintained at the RLC level and will continue to be available in the same manner. Accordingly, the proposal to change § 36.4320(c) to require a three year warranty on a conveyance is not included in the new final rule § 36.4823.

Comment:
VA should require and pay for a title insurance policy in connection with a deed-in-lieu of foreclosure.

VA Response:
VA concurs. VA agrees that requiring a title policy in connection with a deed-in-lieu of foreclosure is necessary and would expedite the process of conveying a property to VA and the subsequent marketing of that property. Therefore, VA is revising the final rule in § 36.4823(c)(4) to provide reimbursement for a title policy when a property is subsequently conveyed to VA by deed-in-lieu of foreclosure.

36.4824 Guaranty Claims; Subsequent Accounting

Comment:
VA should incorporate in its rule that any errors found in post claim audits will not be extrapolated over a servicer's prior claim submissions in an effort to recover claim payments that have not been actually identified.

VA Response:
VA does not concur, as VA does not believe that such a restrictive rule in § 36.4824 would be in the best interests of the taxpayers supporting the VA home loan program. Extrapolation is basically the practice of reviewing a small sample of cases, determining an error rate, and then applying that error rate across an entire population of claims. While VA does not expect to routinely extrapolate in such a manner, this is a generally accepted tool of auditing that must be preserved.

Before VA would reach the point of exercising this option, it would first follow-up with a holder/servicer to address errors that occurred on a routine basis, and would provide extensive notice of errors discovered that might lead to the extrapolation of errors across all claim submissions. VA does not expect that extrapolation will be applied except in the most egregious cases. Hence, we make no changes based on this comment.

Comment:
VA should not impose a one-year deadline for filing claims, or should at least make the penalty more reasonable, because the penalty far outweighs the impact of late filing. In addition, VA should wait until the end of any redemption period before starting the one-year deadline.

VA Response:
VA does not concur. The proposed rule § 36.4321(d) required submission of a claim under guaranty no later than one year after the liquidation sale. To ensure accuracy in the Federal budget process, VA needs to know within a reasonable time that specific loans for particular cohort years have been terminated and that costs will be incurred. With the highly automated processes that are being implemented, VA believes that holders should be able to ascertain all necessary information and submit a claim within one year of the completion of the loan termination process, even if a redemption period exists in the particular jurisdiction. However, if there is some valid reason why an individual claim is not timely submitted, we will reserve the right to pay a late claim. Accordingly, VA § 36.4838(a)(3) includes the failure to timely file a claim as a provision of an administrative or procedural nature that may be waived by an official named in § 36.4845. The final rules in § 36.4321(f) and § 36.4824(d) retain the requirement to submit a claim within one year after the liquidation sale. VA § 36.4335 is not modified to include failure to timely file a claim as a provision of an administrative or procedural nature because all servicers will be under the new subpart F requirements in less than one year, so the need to grant relief under subpart B will not be necessary.

36.4828 Partial or Total Loss of Guaranty or Insurance

Comment:
The proposed rules did not discuss any plans to implement penalties for late or faulty reporting.

VA Response:
The ability to impose penalties already exists. Final rule § 36.4828, based on current § 36.4325, allows VA to adjust claims to the extent that any failure to comply with a regulation increases the ultimate liability of the Secretary. Therefore, no further provision is needed to establish VA's right to impose a penalty when a servicer's failure causes increased liability to VA. The new final rule § 36.4828(b) is slightly different from the existing § 36.4325(b) in order to improve its structure. In addition, while the proposed rule stated that in § 36.4325 two citations (§ 36.4325(b)(5) and (6)) would be deleted and replaced by one new citation for electronic reporting, in the final rule § 36.4828(b), the one citation for electronic reporting (§ 36.4828(b)(4)) actually replaces what are three citations in the existing § 36.4325(b)(4), (5) and (6).

36.4833 Maintenance of Records

Comment:
Servicers should not be required to submit audit documentation to VA in a particular imaged format as a condition of doing business with VA.

VA Response:
VA concurs. VA did not intend to require a specific imaging format, but inadvertently did so by citing only three specific formats in the proposed rule. This has been changed in the final § 36.4833 to provide that required documents sent to VA electronically be in .jpg, .gif, .pdf, or a similarly widely accepted format.

Comment:
Servicers should not be required to provide imaged documents for audits, as this will greatly increase their costs.

VA Response:
VA does not concur. Servicers are presently required by VA policy and the authority in § 36.4330 to submit paper documentation with
all claims
under the guaranty. That involves copying
all documents
related to payments received on a loan, disbursements chargeable thereto, and the dates thereof, including copies of bills and receipts for such disbursements, which may require conversion of electronic documents to paper form. VA proposed instead in § 36.4321(d) that servicers submit the
information
in those documents in an electronic format when filing a claim, while retaining the supporting documents in the event of a post-claim audit by VA. Post-claim audits by VA will typically involve only a percentage sampling of submitted claims, so the number of cases for which documentation will eventually be submitted to VA will be greatly reduced. VA does not specify how servicers must retain documents in order to comply with this or any other regulatory and statutory requirements, but will allow a reasonable period of time for access to the documents upon request. The proposed requirement to submit electronically only the documents on cases selected for post-audit should be much less of a burden on servicers, because even if converting a document to electronic format may be more costly than making a paper copy, the overall reduction in the number of documents that must be submitted should result in lower costs. Therefore, VA finds no basis for changing the proposal in the final rule § 36.4833.

Comment:
The proposed exception to allow submission of paper documents based on size of servicing portfolio is confusing.

VA Response:
VA concurs and has deleted this exception in the final rule § 36.4833. The fast-paced growth in technology has resulted in its wider availability at ever decreasing costs, so the requirement for electronic submission of documents to VA will not create a significant burden for a servicer of any size.

VA has also corrected erroneous dates that appeared in the proposed § 36.4330(c). When the rule was being drafted it was hoped that it could be effective October 1, 2005, and that date was intended to apply to both types of documentation required, even though the second date was shown as October 1, 2004. In the final § 36.4833 both dates are shown as the effective date of the new rule.

36.4836 [Reserved]

The corresponding § 36.4333 titled “Satisfaction of indebtedness” will not be included in subpart F. This is because the new final § 36.4817(c)(1) requires electronic reporting of loans paid in full, thereby obviating the need for instructions on paper notification of payment in full. This § 36.4836 will be shown as reserved for future use.

36.4838 Supplementary Administrative Action

In response to several comments about the need for discretion on the exercise of new authorities in the new subpart F, VA is including in the new final § 36.4838 additional items of an administrative or procedural nature, including some which replace existing items in the corresponding section of subpart B.

36.4848 Servicer Appraisal Processing Program

Comment:
Servicers expressed concern about accepting the risk that VA might later determine that values rendered by the Servicer Appraisal Processing Program (SAPP) were too high and then adjust claims or even reconvey properties. Servicers also expressed concern that they would be unable to employ sufficient numbers of staff review appraisers, and instead want to rely only on values provided by VA-approved appraisers.

VA Response:
VA believes that servicers should not be concerned about these matters. VA presently prescribes uniform qualifications for appraisers in accordance with 38 U.S.C. 3731. However, that same section requires review by VA of appraisal reports prior to determining the reasonable value of a property that is the security for a VA-guaranteed loan. Public Law 100-198, enacted December 21, 1987, authorized the Lender Appraisal Processing Program (LAPP), which enables VA to permit qualified lenders to review loan-origination appraisals, ensure adherence to VA-published minimum property requirements, and set the reasonable value of properties for purposes of determining the maximum loan VA could guarantee.

VA's experience is that delegating appraisal reviews to lenders under the LAPP has worked well and often expedites the loan-origination process. About 95% of all new appraisals are reviewed under LAPP. The number of appraisals required for loan liquidation purposes is significantly lower than the number related to new loan originations, amounting to about 15% of total appraisals reviewed. With lenders employing enough qualified staff appraisal reviewers to handle 95% of new appraisals, there should be no shortage of reviewers available to handle the much lower volume of liquidation appraisals.

Servicers should have no concerns about VA reconveying properties due to value increases made by staff appraisal reviewers, as VA regulations do not provide for such a practice. As contained in the proposed rule, the final rule in §§ 36.4344a(d) and 36.4848(d) does retain the right for VA to be indemnified for additional loss caused by an increase in value made by the servicer that was unwarranted, or arbitrary and capricious. The final rule in §§ 36.4344a(h) and 36.4848(h) also retains provisions to withdraw, for proper cause, authority of servicers to determine reasonable values, such as determination of a pattern of appraisal reviews being conducted in a careless or negligent manner, especially after being called to the servicer's attention. Such withdrawal of authority would simply return servicers to the position of waiting for VA staff appraisers to review liquidation appraisals and establish reasonable values, rather than being able to more quickly establish fair market value and determine the net value of the property for liquidation purposes. Accordingly, we make no changes based on this comment.

36.4850 Servicing Procedures for Holders

Comment:
VA should adjust the timeframe for reporting abandoned properties in relation to the date on which inspections will be required. VA should also retain the 15-day reporting schedule rather than the proposed 5-day rule.

VA Response:
VA concurs. In the proposed § 36.4346(i) VA intended simply to ensure prompt notice when a holder learns of an abandoned property, which could occur prior to verification through a required property inspection. However, VA agrees that the majority of notices about abandoned property will be the result of property inspections, which will not typically be received until a loan is at least 60 days delinquent, and is therefore changing the final rule accordingly. Reporting of this event will fall under the provisions of the final rule in 38 CFR 36.4817(c)(10), which will require reporting no later than the 7th calendar day of the month following the month the occupancy status change was verified.

Comment:
VA should reconsider the requirements related to abandonment and extraordinary waste or hazard.

VA Response:
VA concurs. Since the time of the proposed rule change to § 36.4346(i)(2), events such as Hurricane Katrina have demonstrated the difficulty in mandating loan termination due to the appearance of the potential for extraordinary waste. VA has even issued guidance to holders following Katrina to exercise additional caution before deciding that a property in a major disaster area could be subject to additional waste because of an apparent lack of care, since many people were displaced without the resources to quickly return and attempt repairs to their homes. Therefore, VA is deleting that part of the proposed rule that would have added “extraordinary waste or hazard”.

The first two sentences of the existing rule § 36.4346(i)(2) describe actions to be taken when a holder obtains information that “indicates” a property may be abandoned, and the proposed rule change was primarily to conform reporting requirements to the proposed rule § 36.4315a. VA believes that while the term abandoned may be somewhat subjective, there are obvious situations, such as when the borrower mails in the keys and advises the holder that no further payments will be made, in which a holder will have no doubt that the property is abandoned. The existing rule calls for action that should lead to confirmation of whether or not a property is actually abandoned. Thus, the final rule in § 36.4850(i)(2) will retain the mandate to report abandonment in accordance with § 36.4817(c)(10) as a change in occupancy status and initiate termination when abandonment has been confirmed.

Comment:
In changing the requirement for provision of an annual statement for income tax purposes, VA should be consistent with Internal Revenue Service (IRS) requirements.

VA Response:
VA concurs. It was VA's intent in the proposed revision to § 36.4346(c) to change from 60 days to 30 days to achieve that consistency. However, the comment pointed out that IRS requires annual statements be sent no later than January 31st of each year, so VA's requirement of 30 days would be different. Accordingly, the final rule § 36.4850(c) has been changed to require an annual statement be provided before February 1st of each calendar year.

36.4979 Payment of Insurance

As with § 36.4809, this requires a conforming amendment in the final rule. The existing rule in § 36.4374 refers to a time period specified in § 36.4316, which is three months. Because reporting and processing of

defaults are handled differently in the new rules in §§ 36.4800 through 36.4893, inclusive, there is not a similar waiting period specified in § 36.4818. Therefore, the final rule in § 36.4879 will replace the reference to another section with the actual time frame of three months. There is a similar situation with a reference in § 36.4374 to reporting under § 36.4317, and in this case the final rule in § 36.4879 will refer to the applicable reporting required by §§ 36.4817 and 36.4850.

Restructuring of and Authority for Part 36

In order to make it easier to refer to the new §§ 36.4800 through 36.4893, inclusive, VA is designating those sections as subpart F of part 36. VA is grouping other portions of part 36 into appropriate subparts as shown in this notice. Also, to make it easier to identify the appropriate authority for each section of the new subpart F, VA is revising the citation for the authority of part 36 to refer only to the general authorities, and is including the specific appropriate authority for each section in the new subpart F.

Administrative Procedures Act

Pursuant to 5 U.S.C. 553(d)(3), we find that there is good cause to dispense with the 30-day delayed effective date requirement. The public has received extensive knowledge of the changes effected by the new rules through the initial publication of the proposed rules and two supplemental notices of revisions to the initial proposals, and VA has received advice that the public is anxious for the new rules to be effective.

One of the primary changes in the new rules is the implementation of electronic reporting of information on VA-guaranteed home loans. Due to the extensive time required for information technology system changes, industry participants in the VA home loan program initiated development work on the system changes soon after the first supplemental notice provided sufficient details. The first industry segment under the planned phased implementation is prepared to begin operations under the proposed changes immediately upon publication of the new rules, and any delays in implementation would create financial burdens as they continue to operate under the old rules while maintaining additional system capability for operations under the new rules. Moreover, all other industry segments will not be subject to these electronic reporting rules for more than 30 days after these rules become effective, and therefore the 30-day delayed effective date would not affect any segment other than the first. VA is also prepared to accept electronic reporting upon publication of the new rules, and veterans will begin to benefit from the new rules as soon as they are effective. Any delays will be financially costly to the Government, both in terms of additional contracting support required until final implementation, and with respect to the loss of savings expected for the program under the new rules.

The changing economic situation, with increasing numbers of foreclosures nationwide, also contributes to the need for immediate implementation of the new rules for several reasons. The new environment for servicing VA-guaranteed home loans created by these rules will encourage earlier additional loss mitigation efforts by private servicers in place of the present Government outreach at later stages of loan default. These earlier efforts should result in more veterans being able to reinstate delinquent loans and avoiding foreclosure. This will also result in fewer claims paid by VA, while the claims actually paid will be less under the new rules due to the standardized timeframes for completing termination in those cases where it is unavoidable. In addition, the increased legal fees for termination allowed under the new rules will ensure that VA-guaranteed loans receive the same priority as those of other guarantors, insurers and investors in the termination process, thereby avoiding the costs associated with undue delays.

Due to the issues described above, it is imperative that the new rules become effective immediately upon publication. Accordingly, there is good cause under section 553(d)(3) to dispense with the 30-day delayed effective date requirement.

Paperwork Reduction Act of 1995

This final rule contains provisions that constitute collections of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521). In the preamble of the proposed rule, we described the information collections that would need OMB approval and provided a comment period. OMB has approved those proposed collections and has assigned control numbers 2900-0021, 2900-0045, 2900-0112, 2900-0362, and 2900-0381. 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.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

Executive Order 12866

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined, and it has been determined to be a significant regulatory action under Executive Order 12866.

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule would not 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 et seq. The vast majority of VA loans are serviced by very large financial companies. Only a handful of small entities service VA loans and they service only a very small number of loans. This rule, which only impacts veterans, other individual

obligors with guaranteed loans, and companies that service VA loans, will have very minor impact on a very small number of small entities servicing such loans. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance program number and title for this program is 64.114, Veterans Housing Guaranteed and Insured Loans.

List of Subjects in 38 CFR Part 36

Condominiums, Handicapped, Housing, Indians, Individuals with disabilities, Loan programs—housing and community development, Loan programs—Indians, Loan programs—veterans, Manufactured homes, Mortgage insurance, Reporting and recordkeeping requirements, Veterans.

Approved: October 24, 2007.
Gordon H. Mansfield,
Acting Secretary of Veterans Affairs.

Editorial Note:

This document was received at the Office of the Federal Register on January 23, 2008.

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

PART 36—LOAN GUARANTY

1. The authority citation for part 36 is revised to read as follows:

Authority:

38 U.S.C. 501 and as otherwise noted.

2. Remove the undesignated center heading preceding § 36.4201 and the authority citation directly below that center heading.

3. A heading for subpart A is added preceding § 36.4201 to read as follows:

Subpart A—Guaranty of Loans to Veterans to Purchase Manufactured Homes and Lots, Including Site Preparation

4. Remove the undesignated center heading preceding § 36.4300 and the authority citation directly below that center heading.

5. A heading for subpart B is added preceding § 36.4300 to read as follows:

Subpart B—Guaranty or Insurance of Loans to Veterans

6. Revise § 36.4313(b)(5) to read as follows:

§ 36.4313
Advances and other charges.

(b) * * *

(5)(i) Fees for legal services actually performed, not to exceed the reasonable and customary fees for such services in the State where the property is located, as determined by the Secretary.

(ii) In determining what constitutes the reasonable and customary fees for legal services, the Secretary shall review allowances for legal fees in connection with the foreclosure of single-family housing loans, including bankruptcy-related services, issued by HUD, Fannie Mae, and Freddie Mac. The Secretary will review such fees annually and, as the Secretary deems necessary, publish in the
Federal Register
a table setting forth the amounts the Secretary determines to be reasonable and customary. The table will reflect the primary method for foreclosing in each state, either judicial or non-judicial, with the exception of those States where either judicial or non-judicial is acceptable. The use of a method not authorized in the table will require prior approval from VA. This table will be available throughout the year on a VA controlled Web site, such as at
www.homeloans.va.gov
.

(iii) If the foreclosure attorney has the discretion to conduct the sale or to name a substitute trustee to conduct the sale, the combined total paid for legal fees under paragraph (b)(5)(i) of this section and trustee's fees pursuant to paragraph (b)(4) of this section shall not exceed the applicable maximum allowance for legal fees established under paragraph (b)(5)(ii) of this section. If the trustee conducting the sale must be a Government official under local law, or if an individual other than the foreclosing attorney (or any employee of that attorney) is appointed as part of judicial proceedings, and local law also establishes the fees payable for the services of the public or judicially appointed trustee, then those fees will not be subject to the maximum established for legal fees under paragraph (b)(5)(ii) of this section and may be included in the total indebtedness.

7. Amend § 36.4321 by adding paragraph (f) immediately before the authority citation at the end of the section to read as follows:

§ 36.4321
Computation of guaranty claims; subsequent accounting.

(f)(1)(i) Except as provided in paragraph (f)(1)(ii) of this section, a holder shall file a claim for payment under the guaranty no later than 1 year after the completion of the liquidation sale. For purposes of this section, the liquidation sale will be considered completed when:

(A) The last act required under State law is taken to make the liquidation sale final, but excluding any redemption period permitted under State law;

(B) If a holder accepts a voluntary conveyance of the property in lieu of foreclosure, the date of recordation of the deed to the holder or the holder's designee; or

(C) In the case of a sale of the property to a third party for an amount less than is sufficient to repay the unpaid balance on the loan where the holder has agreed in advance to release the lien in exchange for the proceeds of such sale, the date of settlement of such sale.

(ii) With respect to any liquidation sale completed prior to February 1, 2008, all claims must be submitted no later than February 2, 2009.

(2) If additional information becomes known to a holder after the filing of a guaranty claim, the holder may file a supplemental claim provided that such supplemental claim is filed within the time period specified in paragraph (f)(1) of this section.

(3) No claim under a guaranty shall be payable unless it is submitted within the time period specified in paragraph (f)(1) of this section.

(4) In the event that VA does not approve payment of any item submitted under a guaranty claim, VA shall notify the holder what items are being denied and the reasons for such denial. The holder may, within 30 days after the date of such denial notification, submit a request to VA that one or more items that were denied be reconsidered. The holder must present any additional information justifying payment of items denied.

8. Add § 36.4344a to read as follows:

§ 36.4344a
Servicer appraisal processing program (SAPP).
(a) Delegation of authority to servicers to review liquidation appraisals and determine reasonable value. Based on the reasonable value, the servicer will be able to determine net value.

(1) To be eligible for delegation of authority to review VA liquidation appraisals and determine the reasonable value for liquidation purposes on properties secured by VA guaranteed or insured loans, a lender must—

(i) Have automatic processing authority under 38 U.S.C. 3702(d), and

(ii) Employ one or more Staff Appraisal Reviewers (SAR) acceptable to the Secretary.

(2) To qualify as a servicer's staff appraisal reviewer an applicant must be a full-time member of the servicer's permanent staff and may not be employed by, or perform services for, any other mortgagee. The individual must not engage in any private pursuits in which there will be, or appear to be, any conflict of interest between those pursuits and his/her duties, responsibilities, and performance as a SAPP staff appraisal reviewer. Three years of appraisal related experience is necessary to qualify as a servicer's staff appraisal reviewer. That experience must demonstrate knowledge of, and the ability to apply industry-accepted principles, methods, practices and techniques of appraising, and the ability to competently determine the value of property. The individual must demonstrate the ability to review the work of others and to recognize deviations from accepted appraisal principle, practices, and techniques, error in computations, and unjustifiable and unsupportable conclusions.

(3) Servicers that have a staff appraisal reviewer determined acceptable to VA, will be authorized to review liquidation appraisals and make reasonable value determinations for liquidation purposes on properties that are the security for VA guaranteed or insured loans. Additionally, servicers must satisfy initial VA office case review requirements prior to being allowed to determine reasonable value without VA involvement. The initial office case review requirement must be satisfied in the VA regional loan center in whose jurisdiction the servicer's staff appraisal reviewer is located before the SAPP authority may be utilized by that servicer in any other VA office's jurisdiction. To satisfy the initial office case review requirement, the first five cases of each servicer staff appraisal reviewer involving properties in the regional office location where the staff appraisal reviewer is located will be processed by him or her up to the point where he or she has made a reasonable value determination and fully drafted, but not issued, the servicer's notice of value. At that point, and prior to loan termination, each of the five cases will be submitted to the VA regional loan center having jurisdiction over the property. After a staff review of each case, VA will issue a notice of value which the servicer may use to compute the net value of the property for liquidation purposes. If these five cases are found to be acceptable by VA, the servicer's staff appraisal reviewer will be allowed to fully process subsequent appraisals for properties regardless of jurisdictional location without prior submission to VA and issuance by VA of a notice of value. Where the servicer's reviewer cannot readily meet the jurisdictional review requirement, the SAR applicant may request that VA expand the geographic area of consideration. VA will accommodate such requests if practicable. The initial office case review requirement may be expanded by VA if acceptable performance has not been demonstrated. After satisfaction of the initial office case review requirement, routine reviews of SAPP cases will be made by VA staff based upon quality control procedures established by the Under Secretary for Benefits. Such review will be made on a random sampling or performance related basis.

(4) Certifications required from the servicer will be specified with particularity in the separate instructions issued by the Secretary, as noted in paragraph (b) of this section.

(b)
Instructions for SAPP Procedures.
The Secretary will publish separate instructions for processing appraisals under the Servicer Appraisal Processing Program. Compliance with these regulations and the separate instructions issued by the Secretary is deemed by VA to be the minimum exercise of due diligence in processing SAPP cases. Due diligence is considered by VA to represent that care, as is to be properly expected from, and ordinarily exercised by, a reasonable and prudent servicer who would be dependent on the property as security to protect its investment.

(c)
Adjustment of value recommendations.
The amount of authority to upwardly adjust the fee appraiser's estimated market value during the servicer staff appraisal reviewer's initial review of the appraisal report or to subsequently process an appeal of the servicer's established reasonable value will be specified in the separate instructions issued by VA as noted in § 36.4344a(b). The amount specified must not in any way be considered an administrative adjustment figure which may be applied indiscriminately and without valid basis or justification.

(1)
Adjustment during initial review.
Any adjustment during the staff appraisal reviewer's initial review of the appraisal report must be fully and clearly justified in writing on the appraisal report form or, if necessary, on an addendum. The basis for the adjustment must be adequate and reasonable by professional appraisal standards. If real estate market or other valid data was utilized in arriving at the decision to make the adjustment, such data must be attached to the appraisal report. All adjustments, comments, corrections, justifications, etc., to the appraisal report must be made in a contrasting color, be clearly legible, and signed and dated by the staff appraisal reviewer.

(2)
Processing appeals.
The authority provided under 38 U.S.C. 3731(d) which permits a lender to obtain a VA fee panel appraiser's report which VA is obligated to consider in an appeal of the established reasonable value shall not apply to cases processed under the authority provided by this section. All appeals of VA fee appraiser's estimated market values or servicer's reasonable value determinations above the amount specified in the separate instructions issued by VA must be submitted, along with the servicer's recommendations, if any, to VA for processing and final determination. Unless otherwise authorized in the separate instructions servicers must also submit appeals, regardless of the amount, to VA in all cases where the staff appraisal reviewer has made an adjustment during their initial review of the appraisal report to the fee appraiser's market value estimate. The fee appraiser's estimated market value or servicer's reasonable value determination may be increased only when such increase is clearly warranted and fully supported by real estate market or other valid data considered adequate and reasonable by professional appraisal standards and the servicer's staff appraisal reviewer clearly and fully justifies the reasoning and basis for the increase in writing on the appraisal report form or an addendum. The staff appraisal reviewer must date and sign the written justification and must cite within it the data used in arriving at the decision to make the increase. All such data shall be attached to the appraisal report form and any addendum.

(d)
Indemnification.
When the Secretary has incurred a loss as a result of a payment of claim under guaranty and in which the Secretary determines an increase made by the servicer under paragraph (c) of this section was unwarranted, or arbitrary and capricious, the lender shall indemnify the Secretary to the extent the Secretary determines such loss was caused or increased, by the increase in value.

(e)
Affiliations.
A servicer affiliated with a real estate firm, builder, land developer or escrow agent as a subsidiary division, or in any other entity in which it has a financial interest or which it owns may not use the authority for any cases involving the affiliate unless the servicer demonstrates to the Secretary's

satisfaction that the servicer and its affiliate(s) are essentially separate entities that operate independently of each other, free of all cross-influences (
e.g.
, a formal corporate agreement exists which specifically sets forth this fact).

(f)
Quality control plans.
The servicer must have an effective self-policing or quality control system to ensure the adequacy and quality of their SAPP staff appraisal reviewer's processing and, that its activities do not deviate from high standards of integrity. The quality control system must include frequent, periodic audits that specifically address the appraisal review activity. These audits may be performed by an independent party, or by the servicer's independent internal audit division which reports directly to the firm's chief executive officer. The servicer must agree to furnish findings and information under this system to VA on demand. While the quality control personnel need not be appraisers, they should have basic familiarity with appraisal theory and techniques and the ability to prescribe appropriate corrective action(s) in the appraisal review process when discrepancies or problems are identified. The basic elements of the system will be described in separate instructions issued by the Secretary. Copies of the lender's quality control plan or self-policing system evidencing appraisal related matters must be provided to the VA office of jurisdiction with the servicer's application of SAPP authority.

(g)
Fees.
The Secretary will require servicers to pay a $100.00 application fee for each SAR the servicer nominates for approval. The application fee will also apply if the SAR begins work for another servicer.

(h)
Withdrawal of servicer authority.
The authority for a servicer to determine reasonable value may be withdrawn by the Loan Guaranty Officer when proper cause exists. A servicer's authority to make reasonable value determinations shall be withdrawn when the servicer no longer meets the basic requirements for delegating the authority, or when it can be shown that the servicer's reasonable value determinations have not been made in accordance with VA regulations, requirements, guidelines, instructions or applicable laws, or when there is adequate evidence to support reasonable belief by VA that a particular unacceptable act, practice, or performance by the servicer or the servicer's staff has occurred. Such acts, practices, or performance include, but are not limited to: Demonstrated technical incompetence (i.e., conduct which demonstrates an insufficient knowledge of industry accepted appraisal principles, techniques and practices; or the lack of technical competence to review appraisal reports and make value determinations in accordance with those requirements); substantive or repetitive errors (i.e., any error(s) of a nature that would materially or significantly affect the determination of reasonable value or condition of the property; or a number or series of errors that, considered individually, may not significantly impact the determination of reasonable value or property condition, but which when considered in the aggregate would establish that appraisal reviews or SAPP case processing are being performed in a careless or negligent manner), or continued instances of disregard for VA requirements after they have been called to the servicer's attention.

(1) Withdrawal of authority by the Loan Guaranty Officer may be either for an indefinite or a specified period of time. For any withdrawal longer than 90 days a reapplication for servicer authority to process appraisals under these regulations will be required. Written notice will be provided at least 30 days in advance of withdrawal unless the Government's interests are exposed to immediate risk from the servicer's activities in which case the withdrawal will be effected immediately. The notice will clearly and specifically set forth the basis and grounds for the action. There is no right to a formal hearing to contest the withdrawal of SAPP processing privileges. However, if within 15 days after receiving notice the servicer requests an opportunity to contest the withdrawal, the servicer may submit, in person, in writing, or through a representative, information and argument to the Loan Guaranty Officer in opposition to the withdrawal. The Loan Guaranty Officer will make a recommendation to the Regional Loan Center Director who shall make the determination as to whether the action should be sustained, modified or rescinded. The servicer will be informed in writing of the decision.

(2) The servicer has the right to appeal the Regional Loan Center Director's decision to the Undersecretary for Benefits. In the event of such an appeal, the Under Secretary for Benefits will review all relevant material concerning the matter and make a determination that shall constitute final agency action. If the servicer's submission of opposition raises a genuine dispute over facts material to the withdrawal of SAPP authority, the servicer will be afforded an opportunity to appear with a representative, submit documentary evidence, present witnesses and confront any witness the Veterans Benefits Administration presents. The Under Secretary for Benefits will appoint a hearing officer or panel to conduct the hearing. When such additional proceedings are necessary, the Under Secretary for Benefits shall base the determination on the facts as found, together with any information and argument submitted by the servicer.

(3) In actions based upon a conviction or civil judgment, or in which there is no genuine dispute over material facts, the Under Secretary for Benefits shall make a decision on the basis of all the information in the administrative record, including any submission made by the servicer.

(4) Withdrawal of the SAPP authority will require that VA make subsequent determinations of reasonable value for the servicer. Consequently, VA staff will review each appraisal report and issue a Notice of Value which can then be used by the servicer to compute the net value of properties for liquidation purposes.

(5) Withdrawal by VA of the servicer's SAPP authority does not prevent VA from also withdrawing automatic processing authority or taking debarment or suspension action based upon the same conduct of the servicer.

(Authority: 38 U.S.C. 3731)

9. Remove the undesignated center heading preceding § 36.4400 and the authority citation directly below that center heading.

10. A heading for subpart C is added preceding § 36.4400 to read as follows:

Subpart C—Assistance to Certain Disabled Veterans in Acquiring Specially Adapted Housing

11. Remove the undesignated center heading preceding § 36.4500 and the authority citation directly below that center heading.

12. A heading for subpart D is added preceding § 36.4500 to read as follows:

Subpart D—Direct Loans

13. Remove the undesignated center heading preceding § 36.4600 and the authority citation directly below that center hearing.

14. A heading for subpart E is added preceding § 36.4600 to read as follows:

Subpart E—Sale of Loans, Guarantee of Payment, and Flood Insurance

15. Add subpart F to read as follows:

Subpart F—Guaranty or Insurance of Loans to Veterans With Electronic Reporting

Sec.
36.4800
Applicability of this subpart.
36.4801
Definitions.
36.4802
Computation of guaranties or insurance credits.
36.4803
Reporting requirements.
36.4804
Deviations; changes of identity.
36.4805
Partial disbursement.
36.4806
Refinancing of mortgage or other lien indebtedness.
36.4807
Interest rate reduction refinancing loan.
36.4808
Joint loans.
36.4809
Transfer of title by borrower or maturity by demand or acceleration.
36.4810
Amortization.
36.4811
Prepayment.
36.4812
Interest rates.
36.4813
Charges and fees.
36.4814
Advances and other charges.
36.4815
Loan modifications.
36.4816
Acceptability of partial payments.
36.4817
Servicer reporting requirements.
36.4818
Servicer tier ranking—temporary procedures.
36.4819
Servicer loss-mitigation options and incentives.
36.4820
Refunding of loans in default.
36.4821
Service of process.
36.4822
Loan termination.
36.4823
Election to convey security.
36.4824
Guaranty claims; subsequent accounting.
36.4825
Computation of indebtedness.
36.4826
Subrogation and indemnity.
36.4827
Release of security.
36.4828
Partial or total loss of guaranty or insurance.
36.4829
Hazard insurance.
36.4830
Substitution of trustees.
36.4831
Capacity of parties to contract.
36.4832
Geographical limits.
36.4833
Maintenance of records.
36.4835
Delivery of notice.
36.4836
[Reserved].
36.4837
Conformance of loan instruments.
36.4838
Supplementary administrative action.
36.4839
Eligibility of loans; reasonable value requirements.
36.4840
Underwriting standards, processing procedures, lender responsibility, and lender certification.
36.4841
Death or insolvency of holder.
36.4842
Qualification for designated fee appraisers.
36.4843
Restriction on designated appraisers.
36.4845
Delegation of authority.
36.4846
Cooperative loans.
36.4847
Lender appraisal processing program.
36.4848
Servicer appraisal processing program.
36.4849
Waivers, consents, and approvals; when effective.
36.4850
Servicing procedures for holders.
36.4851
Minimum property and construction requirements.
36.4852
Authority to close loans on the automatic basis.
36.4853
Withdrawal of authority to close loans on the automatic basis.
36.4854
Estate of veteran in real property.
36.4855
Loans, first, second, or unsecured.
36.4856
Tax, special assessment and other liens.
36.4857
Combination residential and business property.
36.4858
[Reserved]
36.4859
Supplemental loans.
36.4860
Condominium loans.
36.4861
Acceptable ownership arrangements and documentation.
36.4862
Rights and restrictions.
36.4863
Miscellaneous legal requirements.
36.4864
Documentation and related requirements-flexible condominiums and condominiums with offsite facilities.
36.4865
Appraisal requirements.
36.4867
Requirement of construction warranty.
36.4868
Nondiscrimination and equal opportunity in housing certification requirements.
36.4869
Correction of structural defects.
36.4870
Advertising and solicitation requirements.
36.4875
Insured loan and insurance account.
36.4877
Transfer of insured loans.
36.4878
Debits and credits to insurance account under § 36.4820.
36.4879
Payment of insurance.
36.4880
Reports of insured institutions.
36.4890
Purpose.
36.4891
Applicability.
36.4892
Certification requirements.
36.4893
Complaint and hearing procedure.

Subpart F—Guaranty or Insurance of Loans to Veterans With Electronic Reporting

§ 36.4800
Applicability of this subpart.

(a) This subpart applies to loans serviced by a mortgage servicing industry segment on or after the date that VA issues a
Federal Register
notice making this subpart applicable to that segment. This includes loans entitled to an automatic guaranty, or otherwise guaranteed or insured, on or after the date assigned in the
Federal Register
, and loans that were previously guaranteed or insured to the extent that no legal rights vested under the regulations are impaired.

(b) Title 38 U.S.C., chapter 37, is a continuation and restatement of the provisions of Title III of the Servicemen's Readjustment Act of 1944, and may be considered an amendment to such Title III. References to the sections or chapters of title 38 U.S.C., shall, where applicable, be deemed to refer to the prior corresponding provisions of the law.

(Authority: 38 U.S.C. 3703(c)(1))

§ 36.4801
Definitions.
Whenever used in 38 U.S.C. chapter 37 or subpart F of this part, unless the context otherwise requires, the terms defined in this section shall have the following meaning:

A period of more than 180 days.
For the purposes of sections 3707 and 3702(a)(2)(C) of title 38 U.S.C., the term a period of more than 180 days shall mean 181 or more calendar days of continuous active duty.

Acquisition and improvement loan.
A loan to purchase an existing property which includes additional funds for the purpose of installing e

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A08-337. Public record. Not legal advice.