38 C.F.R. § 36.4315

Loan modifications

Read at: eCFRecfr.gov CornellLII GovInfogovinfo.gov CasesGoogle Scholar

(a) The terms of any guaranteed loan may be modified by a documented agreement between the holder and the borrower, without prior approval of the Secretary, if all of the following conditions are met:

(1) The loan is in default;

(2) The event or circumstances that caused the default has been or will be resolved and it is not expected to re-occur;

(3) The obligor is considered to be a reasonable credit risk, based on a review by the holder of the obligor's creditworthiness under the criteria specified in § 36.4340, including a current credit report. The fact of the recent default will not preclude the holder from determining the obligor is now a satisfactory credit risk provided the holder determines that the obligor is able to resume regular mortgage installments when the modification becomes effective based upon a review of the obligor's current and anticipated income, expenses, and other obligations as provided in § 36.4340;

(4) At least 12 monthly payments have been paid since the closing date of the loan;

(5) The current owner(s) is obligated to repay the loan, and is party to the loan modification agreement;

(6) The loan will be reinstated to performing status by virtue of the loan modification;

(7) A loan has not been modified more than once in a 3-year period or more than 3 times during the life of the loan;

(8) The loan as modified will bear a fixed-rate of interest, which—

(i) May not exceed the most recent Freddie Mac Weekly Primary Mortgage Market Survey Rate for 30-year fixed-rate conforming mortgages (U.S. Average), rounded to the nearest one-eighth of one percent (0.125%), as of the date the Modification Agreement is approved, plus 50 basis points;

(ii) After being determined and selected in accordance with paragraph (i), is not more than one percent higher than the existing rate on the loan; or,

(iii) In the case of a loan in which a State, Territorial, or local governmental agency provided assistance to the veteran for the acquisition of the dwelling, and the law providing that assistance precludes any revision in the interest rate on the loan, then the interest rate on the modified loan is the same or less than that on the original note evidencing the loan;

(9) The unpaid balance of the modified loan will be re-amortized over the remaining life of the loan, or if the loan term is to be extended, the maturity date will not exceed the shorter of:

(i) 360 months from the due date of the first installment required under the modification, or

(ii) 120 months after the original maturity date of the loan (unless the original term was less than 360 months, in which case the term may be extended to 480 months from the due date of the first installment on the original loan);

(10) Only the following items may be included in the modified indebtedness: Unpaid principal; accrued interest; deficits in the taxes and insurance impound accounts; amounts incurred to pay actual legal fees and foreclosure costs related to the canceled foreclosure; (subject to the maximum amounts prescribed in § 36.4314) the cost of a title insurance policy endorsement or other update for the modified loan; and advances required to preserve the lien position, such as homeowner association fees, special assessments, water and sewer liens, etc. Late fees and other charges may not be capitalized;

(11) The holder will not charge a processing fee, and all unpaid late fees will be waived. Any other actual costs incurred and legally chargeable, but which cannot be capitalized in the modified indebtedness, may be collected directly from the borrower as part of the modification process or waived, at the discretion of the servicer;

(12) Holders will ensure the first lien status of the modified loan;

(13) The dollar amount of the guaranty will not exceed the greater of:

(i) The original guaranty amount of the loan being modified (but if the modified loan amount is less than the original loan amount, then the amount of guaranty will be equal to the original guaranty percentage applied to the modified loan), or

(ii) 25 percent of the loan being modified subject to the statutory maximum specified at 38 U.S.C. 3703(a)(1)(B); and

(14) The obligor will not receive any cash back from the modification.

(b) If a loan fails to meet one or more of the conditions identified in paragraph (a), the holder must submit the loan file to the Secretary for approval before entering into any loan modification agreement. The Secretary will grant such approval if the Secretary determines that the modification is in the best interests of the veteran and the Government after balancing the risks of non-approval versus approval despite the absence of one or more of the conditions identified in paragraph (a) of this section.

(c) This section 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.

[76 FR 6558, Feb. 7, 2011, as amended at 76 FR 78829, Dec. 20, 2011; 89 FR 25144, Apr. 10, 2024]

Notes of Decisions

Cited in 13 cases (1 in the last 5 years), 1980–2023 · leading case: Union Nat'l Bank v. Cobbs, 567 A.2d 719 (Pa. 1989).

Sort: Relevance Newest Treatment

Union Nat'l Bank v. Cobbs, 567 A.2d 719 (Pa. 1989). · cites it 2× “4315 , which concerns the acceptance of partial payments remitted by a defaulting borrower: (b)(3) A failure by the [mortgage] holder to comply with the provisions of this paragraph may result in a partial or total loss of guaranty or insurance pursuant to § 36.”

Schaper v. Derwinski, 1 Vet. App. 430 (Vet. App. 1991). “38 C.F.R. § 36.4315 (a)(1), (b)(3) (1990).”

United States v. Whitney, 602 F. Supp. 722 (W.D.N.Y. 1985). “within forty-five (45) days, 38 C.F.R. § 36.4315 , and if the lender intends to foreclose, he may not begin legal proceedings until thirty (30) days after delivering a notice of his intent to the V.”

Fitzgerald v. Cleland, 498 F. Supp. 341 (D. Me. 1980). “38 C.F.R. § 36.4315 . If the Bank intends to foreclose, it may not begin legal proceedings until 30 days after delivering to the VA a notice of intent to foreclose.”

Rank v. Nimmo, 677 F.2d 692 (9th Cir. 1982). “Upon default by a veteran on his mortgage, the private lender must notify the VA within forty-five days, 38 C.F.R. 36.4315, and if the lender intends to foreclose, he may not begin legal proceedings until thirty days after delivering a notice of his intent to the VA.”

Boley v. Principi, 144 F.R.D. 305 (E.D.N.C. 1992). “38 C.F.R. § 36.4315 . The holder then has the option to submit a claim to the VA under the guaranty agreement (in which case the VA becomes subrogated to the holder’s rights to the extent of the guaranty), 38 C.”

Whitehead v. Derwinski, 904 F.2d 1362 (9th Cir. 1990). “See 38 C.F.R. §§ 36.4315 (b)(2), 36.-4319, 36.”

Grant v. United States Dep't of Vets.' Affairs, 827 F. Supp. 418 (S.D. Tex. 1993). “38 C.F.R. § 36.4315 . The VA then has two options.”

Carter v. Derwinski, 758 F. Supp. 603 (D. Idaho 1991). “2d at 1371 (citing 38 C.F.R. §§ 36.4315 (b)(2), 36.4319, 36.”

Jensen v. Turnage, 782 F. Supp. 1527 (M.D. Fla. 1990). “Jensen of either the default by Florida Marketing or the foreclosure action brought by Suburban Coastal. The federal regulations and statutes that governed the guaranty at the time only required Suburban Coastal to notify the V.”

Smith v. Cardinal Fin. Co., LP (D. Maryland 2023). · cites it 2× “38 C.F.R. § 36.4315 (a). However, that regulation “does not create a right of a borrower to have a loan modified.”

Parks v. Roundpoint Mortg. Servicing Corp. (S.D.W. Va 2019). · cites it 2× “Parks further notes that 38 C.F.R. § 36.4315 permits the modification of a loan if it is in the best interest of the veteran and the Government and affords RoundPoint the discretion to lower Mr.”

Show all 13 citing cases →

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.