[Federal Register Volume 63, Number 247 (Thursday, December 24, 1998)]
[Rules and Regulations]
[Pages 71213-71214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33945]
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NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Part 701
Organization and Operations of Federal Credit Unions
AGENCY: National Credit Union Administration (NCUA).
ACTION: Final rule.
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SUMMARY: The NCUA is incorporating into its regulations the agency's
longstanding interpretation that federal credit unions can permit a
nonmember to assume a member's long-term residential real estate loan
in conjunction with the nonmember's purchase of the member's principal
residence.
EFFECTIVE DATE: January 25, 1999.
ADDRESSES: National Credit Union Administration, 1775 Duke Street,
Alexandria, Virginia 22314-3428.
FOR FURTHER INFORMATION CONTACT: Michael J. McKenna, Staff Attorney,
Division of Operations, Office of General Counsel, at the above address
or telephone: (703) 518-6540.
SUPPLEMENTARY INFORMATION:
A. Background
Since 1977, federal credit unions have had the authority to offer
long-term real estate loans to finance a member's principal residence.
12 U.S.C. 1757(A)(i). NCUA's implementing regulation for this authority
is set forth at 12 CFR 701.21(g).
In 1985, the NCUA Board issued Interpretive Ruling and Policy
Statement 85-3 (IRPS 85-3). 50 FR 51840 (December 20, 1985). IRPS 85-3
stated that, incidental to a federal credit union's authority to make
long-term real estate loans to members, a federal credit union may
permit assumptions, by either members or nonmembers, under the terms
and conditions specified in the loan agreement and consistent with the
Federal Credit Union Act and NCUA's Regulations. The NCUA Board also
stated that, in the case of a nonmember assumption, there must be no
new money lent to the borrower and no extension of the original
maturity date specified in the loan agreement with the member.
NCUA has a policy of periodically reviewing its regulations to
``update, clarify and simplify existing regulations and eliminate
redundant and unnecessary provisions.'' IRPS 87-2, Developing and
Reviewing Government Regulations. As part of its regulatory review
program, NCUA reviewed its IRPS to determine their current
effectiveness. As a result of that review, the NCUA Board stated that
it planned to incorporate IRPS 85-3 into NCUA's Regulations. 62 FR
11773 (March 13, 1997). The Board's goal is to increase regulatory
effectiveness by making it easier for credit unions to locate
applicable rules regarding real estate lending. Accordingly, at 63 FR
41978 (August 6, 1998), the NCUA Board proposed to add a new paragraph
to Sec. 701.21(g) that incorporated IRPS 85-3 so that this provision on
nonmember assumption of loans will be in the same place with the other
regulatory provisions regarding real estate lending. Although the
language is slightly different, the policy set forth in the proposed
amendment was, for all practical purposes, identical to the policy set
forth in IRPS 85-3.
B. Comments
Five comments were received. Comments were received from one
federal credit union, two state leagues, one national credit union
trade association, and one bank trade association. Except for the bank
trade association, the commenters strongly supported the proposal.
The preamble to the proposed rule, just as IRPS 85-3, stated that a
federal credit union cannot grant an assumption of a loan to a
nonmember if the underlying intent of the original loan to
[[Page 71214]]
the member was to grant an assumption by a nonmember immediately or
soon after making the original loan. One commenter stated that
``intent'' is an elusive standard and requested that NCUA provide
further guidance in the preamble to the final regulation as to how
examiners will construct a showing that a loan was originally granted
with the intention that it would be assumed by a nonmember. Intent to
conduct such a sham transaction is difficult to define. The question of
whether there was an improper intent will depend on the facts in a
particular case. An example of a suspicious transaction would be one in
which a member receives a real estate loan from the credit union and
within a short period of time, contracts to sell the property to a
nonmember who wants to assume the loan. Although there may be a
legitimate reason for this action, NCUA will review the transaction to
ensure that it was not done to circumvent the restrictions on providing
services to nonmembers.
One commenter requested that NCUA extend the assumption of a loan
by a nonmember to automobile loans when the individual who is assuming
the loan is either the co-signer or co-owner of the automobile. The
NCUA Board does not believe this authority should be extended in this
situation since the practice and process of assuming real estate loans
is fundamentally different in complexity, maturity, and value than a
situation involving automobile loans. In addition, the NCUA Board does
not see a great need for extending this assumption authority to
automobile loans.
Regulatory Procedures
Regulatory Flexibility Act
The Regulatory Flexibility Act requires NCUA to prepare an analysis
to describe any significant economic impact any proposed regulation may
have on a substantial number of small entities (primarily those under
$1 million in assets). The NCUA Board has determined and certifies that
the final amendment will not have a significant economic impact on a
substantial number of small credit unions. Accordingly, the Board has
determined that a Regulatory Flexibility Analysis is not required.
Paperwork Reduction Act
NCUA has determined that the final amendment does not increase
paperwork requirements under the Paperwork Reduction Act of 1995 and
regulations of the Office of Management and Budget.
Executive Order 12612
Executive Order 12612 requires NCUA to consider the effect of its
actions on state interests. The final amendment only applies to federal
credit unions. NCUA has determined that the final amendment does not
constitute a significant regulatory action for the purposes of the
Executive Order.
Congressional Review
The Office of Management and Budget has determined that this is not
a major rule.
List of Subjects in 12 CFR Part 701
Credit, Credit unions, Insurance, Mortgages, Reporting and
recordkeeping requirements, Surety bonds.
By the National Credit Union Administration Board on December
17, 1998.
Becky Baker,
Secretary of the Board.
For the reasons set forth in the preamble, 12 CFR Part 701 is
amended as follows:
PART 701--ORGANIZATION AND OPERATIONS OF FEDERAL CREDIT UNIONS
1. The authority citation for part 701 continues to read as
follows:
Authority: 12 U.S.C. 1752(5), 1755, 1756, 1757, 1759, 1761a,
1761b, 1766, 1767, 1782, 1784, 1787, and 1789. Section 701.6 is also
authorized by 31 U.S.C. 3717. Section 701.31 is also authorized by
15 U.S.C. 1601 et seq., 42 U.S.C. 1861 and 42 U.S.C. 3601-3610.
Section 701.35 is also authorized by 42 U.S.C. 4311-4312.
2. Section 701.21 is amended by adding a new paragraph (g)(7) to
read as follows:
Sec. 701.21 Loans to members and lines of credit to members.
* * * * *
(g) * * *
(7) Assumption of real estate loans by nonmembers. A federal credit
union may permit a nonmember to assume a member's mortgage loan in
conjunction with the nonmember's purchase of the member's principal
residence, provided that the nonmember assumes only the remaining
unpaid balance of the loan, the terms of the loan remain unchanged, and
there is no extension of the original maturity date specified in the
loan agreement with the member. An assumption is impermissible if the
original loan was made with the intent of having a nonmember assume the
loan.
* * * * *
[FR Doc. 98-33945 Filed 12-23-98; 8:45 am]
BILLING CODE 7535-01-U
