The Guaranty Purchase Process for 7(a) Express Loans

Transcription

1 The Guaranty Purchase Process for 7(a) Express Loans Commercial Loan Servicing Center - Fresno US Small Business Administration 801 R Street, Suite 101 Fresno, CA Attn: Express Purchase Unit FSC.purchasing@sba.gov (202) Fax Commercial Loan Servicing Center US Small Business Administration 2120 Riverfront Drive, Suite 100 Little Rock, AR Attn: Express Purchase Unit LRSC.expresspurchase@sba.gov (202) Fax

2 The purchase team

3 SBA Express Loan into Liquidation Status Prior to submission of the purchase demand kit the SBA office servicing the loan must be notified in writing when a loan is transferred into liquidation status. Liquidation requests may be sent to fsc.purchasing@sba.gov and LRSC.express@sba.gov Per SOP A loan must/should be placed into liquidation status when the following occurs: Loan Payments are 60 days or more past due A voluntary or involuntary bankruptcy petition is filed. The borrower s business has been shut down or abandoned and the obligors have not made other arrangements to repay the loan. Work out arrangements do not appear feasible. Substantial collateral has been abandoned or is in danger of disappearing, losing its value, or being stolen. Receiver is appointed or other legal action is initiated for the purpose of liquidating a borrower s assets, or all or a valuable part of the collateral is abandoned by the borrower. Any other circumstances that could substantially and adversely affect repayment of the SBA loan. ***The lender will receive confirmation the loan has been placed into liquidation status along with a copy of 10 tab Express purchase demand kit***

4 Lender Liquidation Standards Standards for Lender and CDC loan servicing, loan liquidation and debt collection litigation. Liquidate using prudent lending standards. Lenders and Authorized CDC Liquidators must liquidate and conduct debt collection litigation for 7(a) and 504 loans in their portfolio no less diligently than for their non-sba portfolio, and in a prompt, cost-effective and commercially reasonable manner, consistent with prudent lending standards, and in accordance with Loan Program Requirements and with any SBA approval of either a liquidation or litigation plan or any amendment of such a plan. Lenders and CDCs that do not maintain a non-sba loan portfolio must adhere to the same prudent lending standards followed by commercial lenders that liquidate loans without a government guarantee. They are also to operate in accordance with Loan Program Requirements and with any SBA approval of either a liquidation or litigation plan or any amendment of such a plan (c) Documentation requirements. For all liquidation actions not requiring SBA's prior written consent, Lenders and CDCs must document the justifications for their decisions and retain these and supporting documents in their file for future SBA review to determine if the actions taken by the Lender or CDC were prudent, commercially reasonable, and complied with all Loan Program Requirements.

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6 Lenders can: Etran Change maturity dates prior to maturity Cancel undisbursed loan Mark loan in regular servicing as PIF Change Borrower and trade name Change address Change citizenship, Ethnic, Gender, Veteran and Race code for Principal Change loan type from rural to urban and vice versa Change for a revolver to non-revolver and vice versa Decrease undisbursed loan amounts Change the use of proceeds Other features: guarantee fee calculator, printable reports and loan history.

7 Close loan according to Loan Authorization. Be familiar with SOP (C), 13 CFR, SOP and Policy Notices, which can be found on Servicing website. Document, document, document all credit decisions, which should be reasonable and prudent. Service and Liquidate SBA Loan in the same manner as lender s non-sba loans. Include 7a Lender Matrix as part of lender s documentation when approving requests under lender s delegated, unilateral authority. Always check Servicing Website weekly for most recent version. File internal bank loan according to SBA s Ten Tab Purchase Demand Kit. This is to ensure lender has all appropriate documents at the time lender demands SBA honor it s guaranty.

8 Tab 10 Purchase Demand Kit Cover Page The cover sheet of the 10 tab kit collects information that describes the request and provides critical information necessary to start review Make sure all fields are filled out accurately Ensure all cover page figures reconcile along with the transcript of account Double check all wire instruction information. Wire # must be 9 digits Identify if loan was sold in secondary Market

9 Obligor/Guarantor Information (Page 2) Under Page 2 the lender will indentify the type of purchase they are requesting and identify all Obligor/guarantors and their status Expedited purchase: The Agency will NOT charge off the loan. Lender must provide liquidation up-date reports every 90 days until liquidation is complete at which time a final wrap-up report is due. Standard purchase: The Agency will charge off the loan & if appropriate refer to Treasury Offset. Treasury Offset Program :The Treasury Department will intercept any federal payment going to the obligor/guarantor (tax refunds, federal contract payments, etc.) Treasury Offset Servicing: The Treasury Department will fully pursue any obligor/guarantor who remains liable through collection efforts and offsets of any federal government payment program. Please attach Demand Letters behind this section

10 Standard vs Expedited Expedited Purchase: Open Bankruptcy Lender has initiated litigation Ongoing Liquidation of Business and/or Personal Assets Standard Purchase with no referral to the Treasury Offset Program or Treasury Offset Servicing Agency Approved Offer In Compromise The Business and all Guarantors have filed bankruptcy Sole Proprietorship and the obligor is deceased Lender has entered into a post default workout plan with the obligors/guarantors and payments are being received

11 Standard Purchase with referral to Treasury Offset Program ONLY Real Estate remains in place on obligor s primary residence Lender obtained Default Judgment against obligors and is actively pursuing enforcement action Lender continues routine collection efforts Standard Purchase with Referral to the Treasury Offset Program & Treasury Offset Servicing All Obligors Remain Liable Business Entity Remains Liable Guarantors Bankrupt (Business is referred) Guarantors Remain Liable Business Bankrupt (Guarantors are referred) Some obligors/guarantors judgment proof (OIC, Bkrcy, Deceased) others remain liable Default Judgment Obtained, Abstracts File, Lender not actively pursuing enforcement action

12 Determine if a Default Judgment should be obtained On loans with an outstanding balance in excess of $25,000.00, review loan origination documentation, financial statements of obligor/guarantors, current credit reports and a current comprehensive asset search to determine if attachable assets are available that will result in immediate or future recoveries and warrants the expenses associated with obtaining a default judgment. The wrap-up report should contain a narrative explanation justifying the decision to pursue or not pursue a default judgment. If pursuing a default judgment provide details of what will be gained and planned enforcement action.

13 Treasury Offset Tax refunds Wages, including military pay; Retirement, including military retirement pay; SSI Contractor or vendor payments; Travel advances and reimbursements Reporting the status of the Borrower's SBA Loan to credit bureaus that can retain negative credit information for up to seven years; Referring the debt to a private collection agency; Asking the Department of Justice collect the debt through litigation; Preventing receipt of additional federal financial assistance.

14 TOP/ TOS Fee s For FY 2010 offset fee is $16.00 per offset- this is subject to change yearly. Payments received through DMS include a 28-30% fee. (This is added to the loan balance and absorbed by the borrower/guarantors. SBA also shares in the fee based on the guaranty percentage.) Prior to the payment being sent to the lender the fee is removed from the balance of the offset or payment.

15 Wrap up Report (Page 3) The most common deficiencies in the wrap up report is the lack of information provided Provide justify actions taken or not taken in pursuit of obligor/guarantors If loan is collateralized, provide details regarding the pursue of collateral. If lender did not pursue collateral provide justification for that decision The burden of proof is on the lender to demonstrate that it has closed, serviced, and liquidated a loan in a prudent and commercially reasonable manner and in accordance with the terms of the Loan Authorization and SBA program requirements.

16 Wrap-up Report Sample ABC Investments Inc was a service oriented business involved in Mortgage Lending whose primary activity was as a Mortgage Broker. The cause of the default as reported by the obligor was a Tax Lien that resulted in the obligor shutting down the business. The monetary default occurred on 01/15/2010. Collection calls to the obligor and guarantor resulted in three additional payments being received that have been applied to interest first, remaining to principal. While the payments have advanced the next payment due date, the funds received we insufficient to cover the entire P&I Payments due and did not cure the original default. The obligor has since all contact with the bank. The loan was collateralized with a first lien on general assets. At loan origination the obligor listed the value of the office equipment as $50, This was a stated value by the obligor., A site visit was not conducted as the business was operated out of a leased office location and the nature of the business indicates the only business collateral would consist of general office equipment which would not be cost effective to pursue. A review of the current credit report and asset search indicates the obligor is delinquent on most of his credit obligation and the only real property owned is over encumbered and currently in foreclosure status. At this time the bank has determined it is not cost effective to pursue Judgment. Past due and demand letters have been sent to the obligor. While initial contact established through collection calls, recent calls have found all phone numbers to be disconnected and mail is being returned. At this time the bank has determined that all reasonable collection efforts are complete.

17 Wrap-up Report Sample XYZ Tools LLC was a retail tool and hardware store operating out of a strip mall. The cause of the business failure was the anchor store in the mall closed resulting in a loss of walk-in customers. Contact was made with the obligor within 30 days of the initial monetary default during which time payments were promised, however never received. A site visit was conducted 90 days after default and found the store inventory was greatly depleted. An auctioneer was hired to inventory and sell remaining business assets. Net proceeds of $5, received from the auction were applied to the principal balance of the loan after deducting 120 days interest. A review of the obligor/guarantors current credit report and asset search revealed debts to other obligors remain current and RRE which is not fully encumbered. The RRE, located at 1234 Anyplace, AZ has a current value of $450, and a first and second mortgage totaling $275, The bank is in the process of obtaining a default judgment and will file an abstract of judgment once received. No other enforcement action is anticipated at this time.

18 Lender s Certification Page Lender is certifying under penalty of perjury that the foregoing is true and correct Lender signature required

19 Tab 1 Eligibility Information Moving Forward Forward with Moving with SBA Form 1919 must be provided for all appropriate individuals If any question answered Yes "on tab 1 ensure to attached the required documents (e.g. Franchise Eligibility documentation, SBA Form 912, Citizenship documentation, SBA Form 159 and SBA Form 601) Attach SBA Form 1920sx Part A,B,and C. If a lender submitted application through Etran lender may supply Etran application along with Lender Certification Read entire tab to ensure all required documentation is provided Ensure all documents under tab 1 are completed and signed

20 Tab- 2 Loan Authorization The most important, required document in the purchase of the guaranty is the Loan Authorization For Express at loan origination, the lender completes the Loan Authorization without SBA review and signs it on behalf of SBA The SBA review begins with the review of the SBA Loan Authorization. The authorization must be completely filled out all terms/conditions of the authorization (collateral conditions) must be met. Loan Authorization must be signed.

21 Tab- 3 Loan Note & Guaranties There must be a promissory note that is legally enforceable and assignable, in the event that it would ever have to be assigned to SBA Please provide evidence of guarantor consent for any material changes to the loan terms You must also submit copies of any Note Modifications, Amendments, Deferments and Workout Agreements to include all revised repayment terms including dates, interest rate adjustments and payment revisions For Secondary Market Loans, lender must provide evidence of investor's approval of modifications, as applicable

22 Tab- 4 Use of Proceeds and IRS VerificationMoving Forward Forward with Moving with ARC Program Only The ARC Loan borrower must be eligible under the basic eligibility requirements established for 7(a) loans. Lender must document Qualifying Small Business Loan( QSBL) Eligibility requirements. Verification of Financial Information Lenders must obtain and verify federal income tax information on the borrower for the last two years. Please refer to ARC Program Website /RECOVERY_INFO_LENDERS.html ARC loan FAQs ba_homepage/rec_arcloan_faq_lenders.pdf

23 Tab- 5 Certified Transcript of Account The transcript is one of the major areas that cause delay in processing the purchase request SBA encourages the use of SBA Form 1149.If a lender chooses not to use the 1149 form, the transcript must contain all of the information required on SBA Form It is critical to ensure required dates, interest rates, disbursements, payment applications are accurate It is also critical to document the transcript for any/all deferments or loan modifications If applicable: Apply proceeds from the sale of collateral in the following order: (a) Liquidation Expenses (b) the 120 days interest permitted on the balance as of the earliest uncured default (C) principal balance of loan

24 Tab- 6 Special Loan Programs If the lender has indicated the SBA Express loan was made under a Special Loan Program additional documents is required, as seen below. SBA Community Express Program: Community Express Loans approved between 04/15/2007 & 10/01/2008 see SBA notice Community Express Loans Approved After 10/01/2008 see notice

25 Tab- 6 Special Loan Programs Cont. SBA ARC (America s Recovery Capital) Program : Is designed to give viable small business facing immediate financial hardship some temporary financial relief so they can keep their doors open, refocus and get their cash flow back on track. Please refer to ARC Program Website /RECOVERY_INFO_LENDERS.html ARC loan FAQs ba_homepage/rec_arcloan_faq_lenders.pdf SBA Express Export Express Program: Borrower to submit a plan which included projected export sales for the upcoming years as well as the dollar volume of export sales for the previous year and also an explanation of how the business plans to increase export sales. SBA Patriot Express Program: Lender to provide acceptable DOD/DVA documentation.

26 Tab- 6 Special Loan Programs Cont. Moving Forward Forward with Moving with SBA Express GO (Gulf Opportunity) Program: SBA Express Star Program: Lender found loan was adversely affected by the terrorist events of September 11,2001, and lender to provide analysis and narrative justification demonstrating the basis for concluding that the loan was eligible for STAR Program

27 Tab- 7 Collateral Under Tab 7 document all collateral if applicable Lenders must complete the liquidation of all Express loan with an estimated remaining collateral value in excess of $1, Per SOP requires that collateral be properly secured to reduce the possibility of dissipation. Lenders are required to make a site visit within 60 Days of an uncured payment default or sooner if the collateral could be removed, lost of dissipated. On a non-payment default, a site visit is to be made within 15 days of the occurrence of the adverse event. When a site visit is made, the lender must prepare a comprehensive and detailed report containing an inventory of assets and an assessment of their condition If lender has marked box the principal loan balance at the time of the purchase request does not exceed $25,000. In lieu of documentation to evidence that liquidation has been completed, by marking the proceeding box the lender certifies that liquidation is complete. Please provide a detailed summary of liquidation activity and results in the wrap up report.

28 Site Visits When required (50-51-c) Unless the loan is unsecured, or the aggregate Recoverable Value of the personal property collateral is less than $2,500 and the Recoverable Value of each parcel of real property collateral is less than $5,000, a site visit must be conducted as follows: 1. Payment Default within 60 days of an uncured payment default or sooner if the collateral could be removed, lost or dissipated. 2. Non-payment Default within 15 days of the occurrence of the adverse event that caused the loan to be classified in liquidation status, (e.g., bankruptcy filing, foreclosure by prior lienholder, business shutdown), or sooner if the collateral could be removed, lost or dissipated.

29 Site Visit Report Site visits must be documented in a report that addresses the site visit goals set out above. Lenders must provide the SBA Loan Center with a site visit report along with their Wrap-up Report if it was not previously submitted with a guaranty purchase request. If a site visit was not conducted, the reason why a site visit was not required must be documented in the loan file and explained in the Wrap-up Report.

30 Tab- 8 Recoveries/Expenses/Litigation Under this tab provide itemized invoices for routine liquidation/ litigation/ legal expenses incurred during the liquidation process If the lender has initiated litigation against any party please provide copies of legal pleading If a judgment is obtained against the obligor and/or guarantor a copy of the legal proceedings/judgment must be provide In the Wrap- Up report please detail activities to enforce any default judgments obtained or if any enforcement will be taking place

31 Tab- 9 Bankruptcies Under Tab 9 Document all bankruptcies. Most common deficiency: Lenders fail to file a timely proof of claim and/or fail to provide a copy of proof of claim. Chapter 7 No Asset Bankruptcy: Please provide documentation supporting the case is closed and the obligor has been discharged. Chapter 7 Asset, Chapter 11 & Chapter 13 Bankruptcies. Please provide a copy of The Bankruptcy Notification, the Banks Proof of Claim, the Banks request for Relief from Stay (if applicable) and Confirmed Bankruptcy Plan and Trustee Report of Distributions if Available

32 Bankruptcy of Obligor If an Obligor files for bankruptcy protection, Legal Counsel is responsible for ensuring that, at a minimum, the following actions are taken when necessary to protect the ability to recover on the SBA Loan: A proof of claim is filed; The debtor's Statement of Financial Affairs and schedules are reviewed and compared with the financial documents the debtor provided to the 7(a) Lender or CDC at the time the loan was made to determine if there are any material discrepancies with regard to the debtor's alleged assets, liabilities, income, expenses, etc.; Suspected fraud is reported to the Office of the Inspector General, (See Chapter 20), and the appropriate Office of the U.S. Trustee; The bankruptcy proceedings are monitored; SBA and the Lender or CDC's interests are represented at all hearings where the outcome may adversely affect the ability to collect the SBA Loan balance; A motion for relief from the automatic stay is filed when needed to pursue enforced collection proceedings against the collateral; A objection to the discharge of the debt owed on the SBA Loan is filed if there is reason to believe that the debtor obtained the loan through fraud, misrepresentation or omission of a material fact, or fraudulently transferred or converted the collateral; A motion to revoke the debtor's discharge is filed if there is reason to believe that it was obtained through fraud or other acts of impropriety; The bankruptcy court's approval of a reaffirmation agreement is obtained if the debtor is willing and able to continue paying on the SBA Loan; An objection to the debtor's plan or disclosure statement is filed when necessary; A vote is cast to accept or reject proposed Chapter 11 plans based on an analysis of the relevant facts; Collection efforts are immediately resumed if the bankruptcy case is dismissed and the SBA Loan is still in default; and Any other action that may be necessary and appropriate under the circumstances is taken.

33 Tab- 10 Early Payment Default Moving Forward Forward with Moving with Early loan defaults will be reviewed by SBA pursuant to SOP Early payment default means generally, a business failure occurs prior to final disbursement of loan, within 18 months from the date of final disbursement. (Or within 18 months of initial disbursement for a LOC) Lender to provide a copy of the Bank s Credit memorandum supporting the loan approval and related supporting documentation

34 Materiality When is SBA released from liability on its guarantee? a) SBA is released from liability on a loan guarantee (in whole or in part, within SBA's exclusive discretion), if any of the events below occur: (1) The Lender has failed to comply materially with any Loan Program Requirement for 7(a) loans. (2) The Lender has failed to make, close, service, or liquidate a loan in a prudent manner; (3) The Lender's improper action or inaction has placed SBA at risk; (4) The Lender has failed to disclose a material fact to SBA regarding a guaranteed loan in a timely manner; (5) The Lender has misrepresented a material fact to SBA regarding a guaranteed loan; (6) SBA has received a written request from the Lender to terminate the guarantee; (7) The Lender has not paid the guarantee fee within the period required under SBA rules and regulations; (8) The Lender has failed to request that SBA purchase a guarantee within 180 days after maturity of the loan. However, if the Lender is conducting liquidation or debt collection litigation in connection with a loan that has matured, SBA will be released from its guarantee only if the Lender fails to request that SBA purchase the guarantee within 180 days after the completion of the liquidation or debt collection litigation; (9) The Lender has failed to use required SBA forms or exact electronic copies; or (10) The Borrower has paid the loan in full. (b) If SBA determines, at any time, that any of the events set forth in paragraph (a) of this section occurred in connection with that loan, SBA is entitled to recover any moneys paid on the guarantee plus interest from the Lender responsible for those events. (c) If the Lender's loan documentation or other information indicates that one or more of the events in paragraph (a) of this section occurred, SBA may undertake such investigation as it deems necessary to determine whether to honor or deny the guarantee, and may withhold a decision on whether to honor the guarantee until the completion of such investigation. (d) Any information provided to SBA by a Lender or other party will not prejudice, or be construed as effecting any waiver of, SBA's right to deny liability for a guarantee if one or more of the events listed in paragraph (a) of this section occur. (e) Unless SBA provides written notice to the contrary, the Lender remains responsible for all loan servicing ad liquidation actions until SBA honors its guarantee in full.

35 Common deficiencies in Express purchase demand kit submissions Use Express or ARC loan 10 TAB purchase demand kit. The SBA review begins with a review of the loan authorization. The authorization must be included in the purchase demand kit and all terms/conditions of the authorization (collateral conditions) must be met. Transcripts: Must be signed. SBA form 1149 is the suggested form of transcript. If the lender uses its own form of transcript, it must contain the same information as form Early defaults: Lender must submit a copy of its loan origination credit memo/the documentation it relied upon in making the loan. Site visit reports (must be timely). If the loan was made under a special loan program (eg., Community Express), supporting documentation determining eligibility must be provided (see appropriate purchase demand kit TAB for additional information).

36 Deficiencies in purchase demand kit submissions, continued Inadequate wrap up report. The wrap up report should contain: 1. Nature of Business 2. Cause of Default 3. Summary of Servicing Actions 4. The liquidation effort put forth by the lender. 5. Findings generated by the site visit and credit report. 6. Liquidation activity regarding collateral. 7. Actions taken to pursue the obligor / guarantors If the lender is not going to pursue the obligor / guarantors or collateral, then the report must include the justification for this decision.

37 Deficiencies in purchase demand kit submissions, continued Form 1919 must be provided for all appropriate individuals. If a yes response is indicated for questions 1-6, additional documentation (eg., SBA-approved form 912 for a prior criminal offense) must be provided. Franchise documentation. If a borrower or guarantor have filed bankruptcy, the appropriate bankruptcy documentation must be provided. If a proof of claim is required to be filed, a copy of the lender s proof of claim must be provided. If the lender has obtained a judgment against the obligor or guarantor, a copy of the legal proceedings/judgment must be provided.

38 Top Reasons for Repair/Denials Bankruptcy deficiency- Failure to file a timely proof of claim on asset bankruptcies For 90% recovery act loans under the Express umbrella (Community Express, Patriot Express, Export Express) lack of special borrower certification (see notice ). Lack of Special loan program documentation (Community Express, GO, Export, Star, ARC, Patriot) SBA Forms 1919 or 912 deficiency without satisfactory alternate documentation Ineligible use of loan proceeds Failure to obtain required collateral lien position Failure to obtain required guarantor Lack of meaningful collateral evaluation resulting in loss to Agency Release of collateral without justification Guarantors released/compromised without SBA Approval Untimely or lack of site visit resulting in loss of collateral Collateral abandoned without justification Purchase not requested within 180 days of maturity or within 180 days of the completion of liquidation/debt collection activities. Refer to 13 CFR Ch. I Negligent lender credit analysis (Early Payment Default Loans) SBA Loan eligibility: e.g. Ineligible franchise, Ineligible loan purpose, ineligible business

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41 A. Inspector General Referrals When Required Unless advised to the contrary in writing by the Department of Justice or another federal law enforcement agency, 7(a) Lenders, CDCs and SBA officials must report any known or suspected irregularities involving SBA programs, program participants, or personnel to the Office of the Inspector General ("OIG"). 13 C.F.R Examples of irregularities that must be referred include: Misrepresentation or false statements by an Obligor or Obligor's agent; Conversion, concealment, vandalism or disposal of collateral or proceeds with a Recoverable value of $5,000 or more; Misuse of loan proceeds or any other funds in which SBA has an interest; Any conduct that is the subject of an investigation by another federal, state or local agency, such as the Federal Bureau of Investigation or local police department; Material discrepancies in the Loan Documents or between the Loan Documents and other documents signed by an Obligor such as tax returns or bankruptcy schedules; or Discovery that an Obligor has been arrested for, or convicted of, a felony.

42 How to Report The initial referral to the OIG can be made by sending an to making a telephone call to (the OIG hotline); or by contacting the Special Agent in Charge of the geographic area where the fraud or abuse occurred. A copy of the referral or information documenting the phone call must be kept in the loan file. If the OIG requests a formal referral, it should include the following: Post-referral Responsibility After referring a matter to the OIG, the Person who made the referral must: Report any new or additional information discovered about the matter to the OIG; Not disclose the existence of the OIG referral or investigation to any Person outside of SBA; Take all appropriate and timely action on the loan to protect SBA's interests and maximize recovery on the loan; and Coordinate any activities related to the loan with the OIG in order to avoid taking any action that could be detrimental to an investigation or subsequent prosecution.

43 Helpful Links SBA Programs Electronic Lending Home Page Loan Program Guides Unilateral Servicing Matrix Litigation Plans OIC SBA Form Colson Services