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Small Business Administration, § 120.524 When is SBA released from liability on its guarantee?

Summary

Section 120.524 of 13 CFR lists events, numbered (1) through (10), that release SBA from liability on a loan guarantee, in whole or in part. They include a lender's material failure to comply with loan program requirements, failure to make, close, service or liquidate a loan prudently, failure to disclose or misrepresentation of a material fact, failure to pay the guarantee fee, failure to request purchase within 180 days after maturity, and the borrower paying the loan in full. If SBA determines at any time that one of these events occurred, it is entitled to recover moneys paid on the guarantee plus interest, and the lender remains responsible for servicing and liquidation until SBA honors its guarantee in full. The page also prints Sections 120.522, 120.523 and 120.530, on accrued interest, the earliest uncured payment default and deferment of payment.

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Small Business Administration                                                  § 120.524

uncured payment default, or the rate           § 120.524 When is SBA released from li-
in effect at the time of purchase (where            ability on its guarantee?
no default has occurred).                         (a) SBA is released from liability on
                                               a loan guarantee (in whole or in part,
§ 120.522 Payment of accrued interest          within SBA’s exclusive discretion), if
    to the Lender or Registered Holder         any of the events below occur:
    when SBA purchases the guaran-                (1) The Lender has failed to comply
    teed portion.
                                               materially with any Loan Program Re-
  (a) Rate of interest. If SBA purchases       quirement for 7(a) loans.
the guaranteed portion from a Lender              (2) The Lender has failed to make,
or from a Registered Holder (if sold in        close, service, or liquidate a loan in a
the Secondary Market), it will pay ac-         prudent manner;
crued interest at:                                (3) The Lender’s improper action or
  (1) The rate in the note if it is a fixed    inaction has placed SBA at risk;
rate loan; or                                     (4) The Lender has failed to disclose a
  (2) The rate in effect on the date of        material fact to SBA regarding a guar-
                                               anteed loan in a timely manner;
the earliest uncured payment default,
                                                  (5) The Lender has misrepresented a
or of SBA’s purchase (if there has been
                                               material fact to SBA regarding a guar-
no default).                                   anteed loan;
  (b) Payment to Lender—(1) For loans             (6) SBA has received a written re-
approved on or after May 14, 2007. SBA         quest from the Lender to terminate the
will pay up to a maximum of 120 days           guarantee;
interest to a Lender at the time of               (7) The Lender has not paid the guar-
guarantee purchase.                            antee fee within the period required
  (2) For loans approved before May 14,        under SBA rules and regulations;
2007. The regulations applicable to the           (8) The Lender has failed to request
amount of interest that SBA will pay           that SBA purchase a guarantee within
to a Lender upon loan default that             180 days after maturity of the loan.
were in effect immediately prior to            However, if the Lender is conducting
this date will govern such loans.              liquidation or debt collection litigation
  (c) Payment to Registered Holder. SBA        in connection with a loan that has ma-
will pay a Registered Holder all ac-           tured, SBA will be released from its
crued interest up to the date of pay-          guarantee only if the Lender fails to
ment.                                          request that SBA purchase the guar-
                                               antee within 180 days after the comple-
[61 FR 3235, Jan. 31, 1996, as amended at 72   tion of the liquidation or debt collec-
FR 18361, Apr. 12, 2007]                       tion litigation;
                                                  (9) The Lender has failed to use re-
§ 120.523 What is the ‘‘earliest uncured       quired SBA forms or exact electronic
    payment default’’?                         copies; or
  The earliest uncured payment default            (10) The Borrower has paid the loan
is the date of the earliest failure by a       in full.
Borrower to pay a regular installment             (b) If SBA determines, at any time,
of principal and/or interest when due.         that any of the events set forth in
Payments made by the Borrower before           paragraph (a) of this section occurred
a Lender makes its request to SBA to           in connection with that loan, SBA is
                                               entitled to recover any moneys paid on
purchase are applied to the earliest
                                               the guarantee plus interest from the
uncured payment default. If the in-
                                               Lender. In the exercise of its rights,
stallment is paid in full, the earliest
                                               SBA may utilize all legal means avail-
uncured payment default date will ad-          able, including offset and judicial rem-
vance to the next unpaid installment           edies.
date. If a Borrower makes any payment             (c) If the Lender’s loan documenta-
after the Lender makes its request to          tion or other information indicates
SBA to purchase, the earliest uncured          that one or more of the events in para-
payment default date does not change           graph (a) of this section occurred, SBA
because the Lender has already exer-           may undertake such investigation as it
cised its right to request purchase.           deems necessary to determine whether

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§ 120.530                                                     13 CFR Ch. I (1–1–25 Edition)

to honor or deny the guarantee, and              diligently than for their non-SBA port-
may withhold a decision on whether to            folio, and in a prompt, cost-effective
honor the guarantee until the comple-            and commercially reasonable manner,
tion of such investigation.                      consistent with prudent lending stand-
  (d) Any information provided to SBA            ards, and in accordance with Loan Pro-
by a Lender or other party will not              gram Requirements and with any SBA
prejudice, or be construed as effecting          approval of either a liquidation or liti-
any waiver of, SBA’s right to deny li-           gation plan or any amendment of such
ability for a guarantee if one or more           a plan. Lenders and CDCs that do not
of the events listed in paragraph (a) of         maintain a non-SBA loan portfolio
this section occur.
                                                 must adhere to the same prudent lend-
  (e) Unless SBA provides written no-
                                                 ing standards followed by commercial
tice to the contrary, the Lender re-
                                                 lenders that liquidate loans without a
mains responsible for all loan servicing
                                                 government guarantee. They are also
ad liquidation actions until SBA hon-
ors its guarantee in full.                       to operate in accordance with Loan
                                                 Program Requirements and with any
[61 FR 3235, Jan. 31, 1996, as amended at 72     SBA approval of either a liquidation or
FR 18361, Apr. 12, 2007; 82 FR 39503, Aug. 21,   litigation plan or any amendment of
2017]
                                                 such a plan.
§ 120.530 Deferment of payment.                     (c) Absence of actual or apparent con-
                                                 flict of interest. A CDC must not take
   SBA may agree to defer payments on
                                                 any action in the liquidation or debt
a business loan for a stated period of
time, and use such other methods as it           collection litigation of a 504 loan that
considers necessary and appropriate to           would result in an actual or apparent
help in the successful operation of the          conflict of interest between the CDC
Borrower. This policy applies to all             (or any employee of the CDC) and any
business loan programs, including 504            Third Party Lender, associate of a
loans.                                           Third Party Lender, or any person par-
                                                 ticipating in a liquidation, foreclosure
§ 120.531 Extension of maturity.                 or loss mitigation action.
   SBA may agree to extend the matu-                (d) SBA rights to take over servicing or
rity of a loan for up to 10 years beyond         liquidation. SBA may, in its sole discre-
its original maturity if the extension           tion, undertake the servicing, liquida-
will aid in the orderly repayment of             tion and/or litigation of any 7(a) or 504
the loan.                                        loan. If SBA elects to service, liquidate
                                                 and/or litigate a loan, it will notify the
§ 120.535 Standards for Lender and               relevant Lender or CDC in writing,
     CDC loan servicing, loan liquida-           and, upon receiving such notice, the
     tion and debt collection litigation.        Lender or CDC must assign the Loan
   (a) Service using prudent lending stand-      Instruments to SBA and provide any
ards. Lenders and CDCs must service              needed assistance to allow SBA to serv-
7(a) and 504 loans in their portfolio no         ice, liquidate and/or litigate the loan.
less diligently than their non-SBA               SBA will notify the Borrower of the
portfolio, and in a commercially rea-            change in servicing. SBA may use con-
sonable manner, consistent with pru-             tractors to perform these actions.
dent lending standards, and in accord-
ance with Loan Program Require-                  [72 FR 18361, Apr. 12, 2007]
ments. Those Lenders and CDCs that
do not maintain a non-SBA loan port-             § 120.536 Servicing and liquidation ac-
                                                     tions that require the prior written
folio must adhere to the same prudent                consent of SBA.
lending standards for loan servicing
followed by commercial lenders on                  (a) Actions by Lenders and CDCs. Ex-
loans without a government guarantee.            cept as otherwise provided in a Supple-
   (b) Liquidate using prudent lending           mental Guarantee Agreement with a
standards. Lenders and Authorized CDC            Lender or an Agreement with a CDC,
Liquidators must liquidate and con-              SBA must give its prior written con-
duct debt collection litigation for 7(a)         sent before a Lender or CDC takes any
and 504 loans in their portfolio no less         of the following actions:

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