Assumptions; release from liability

38 U.S.C. § 3714

• Title: 38 — Veterans' Benefits
• Chapter: SUBCHAPTER II—LOANS

Text

(a)(1) Except as provided in subsection (f) of this section, if a veteran or any other person disposes of residential property securing a loan guaranteed, insured, or made under this chapter and the veteran or other person notifies the holder of the loan in writing before the property is disposed of, the veteran or other person, as the case may be, shall be relieved of all further liability to the Secretary with respect to the loan (including liability for any loss resulting from any default of the purchaser or any subsequent owner of the property) and the application for assumption shall be approved if the holder determines that—
(A) the loan is current; and
(B) the purchaser of the property from such veteran or other person—
(i) is obligated by contract to purchase such property and to assume full liability for the repayment of the balance of the loan remaining unpaid and has assumed by contract all of the obligations of the veteran under the terms of the instruments creating and securing the loan; and
(ii) qualifies from a credit standpoint, to the same extent as if the purchaser were a veteran eligible under section 3710 of this title, for a guaranteed or insured or direct loan in an amount equal to the unpaid balance of the obligation for which the purchaser is to assume liability.
(2) For the purposes of paragraph (1), paragraph (3), and paragraph (4)(C)(ii) of this subsection, the Secretary shall be considered to be the holder of the loan if the actual holder is not an approved lender described in section 3702.
(3) If the holder of the loan determines that the loan is not current or that the purchaser of the property does not meet the requirements of paragraph (1)(B) of this subsection, the holder shall—
(A) notify the transferor and the Secretary of such determination; and
(B) notify the transferor that the transferor may appeal the determination to the Secretary.
(4)(A) Upon the appeal of the transferor after a determination described in paragraph (3) is made, the Secretary shall, in a timely manner, review and make a determination (or a redetermination in any case in which the Secretary made the determination described in such paragraph) with respect to whether the loan is current and whether the purchaser of the property meets the requirements of paragraph (1)(B) of this subsection. The Secretary shall transmit, in writing, a notice of the nature of such determination to the transferor and the holder and shall inform them of the action that shall or may be taken under subparagraph (B) of this paragraph as a result of the determination of the Secretary.
(B)(i) If the Secretary determines under subparagraph (A) of this paragraph that the loan is current and that the purchaser meets the requirements of paragraph (1)(B) of this subsection, the holder shall approve the assumption of the loan, and the transferor shall be relieved of all liability to the Secretary with respect to such loan.
(ii) If the Secretary determines under subparagraph (A) of this paragraph that the purchaser does not meet the requirements of paragraph (1)(B) of this subsection, the Secretary may direct the holder to approve the assumption of the loan if—
(I) the Secretary determines that the transferor of the property is unable to make payments on the loan and has made reasonable efforts to find a buyer who meets the requirements of paragraph (1)(B) of this subsection and that, as a result, the proposed transfer is in the best interests of the Department and the transferor;
(II) the transferor has requested, within 15 days after receiving the notice referred to in subparagraph (A) of this paragraph, that the Secretary approve the assumption; and
(III) the transferor will, upon assumption of the loan by the purchaser, be secondarily liable on the loan.
(C) If—
(i) the loan is not approved for assumption under subparagraph (B) of this paragraph or paragraph (1) of this subsection; or
(ii) no appeal is made by the transferor under subparagraph (A) of this paragraph within 30 days after the holder informs the transferor of its determination under paragraph (3) of this subsection,
the holder may demand immediate, full payment of the principal, and all interest earned thereon, of such loan if the transferor disposes of the property.
(b) If a person disposes of residential property described in subsection (a)(1) of this section and the person fails to notify the holder of the loan before the property is disposed of, the holder, upon learning of such action by the person, may demand immediate and full payment of the principal, interest, and all other amounts owing under the terms of the loan.
(c)(1) In any case in which the holder of a loan described in subsection (a)(1) of this section has knowledge of a person's disposing of residential property securing the loan, the holder shall notify the Secretary of such action.
(2) If the holder fails to notify the Secretary in such a case, the holder shall be liable to the Secretary for any damage sustained by the Secretary as a result of the holder's failure, as determined at the time the Secretary is required to make payments in accordance with any insurance or guaranty provided by the Secretary with respect to the loan concerned.
(d) With respect to a loan guaranteed, insured, or made under this chapter, the Secretary shall provide, by regulation, that at least one instrument evidencing either the loan or the mortgage or deed of trust therefor, shall conspicuously contain, in such form as the Secretary shall specify, a notice in substantially the following form: "This loan is not assumable without the approval of the Department of Veterans Affairs or its authorized agent".
(e) The Secretary shall establish in regulations a reasonable amount as the maximum amount that a lender may charge for processing an application for a creditworthiness determination and assumption of a loan pursuant to this section. Such regulations shall establish requirements for the timely processing of applications for acceptance of assumptions.
(f)(1) This section shall apply—
(A) in the case of loans other than loans to finance the purchase of real property described in section 3733(a)(1) of this title, only to loans for which commitments are made on or after March 1, 1988; and
(B) in the case of loans to finance the purchase of such property, only to loans which are closed after January 1, 1989.
(2) This section shall not apply to a loan which the Secretary has sold without recourse.

History

(Added Pub. L. 100–198, §10(a)(1), Dec. 21, 1987, 101 Stat. 1321, §1817A; renumbered §1814, Pub. L. 100–322, title IV, §415(b)(2)(B), May 20, 1988, 102 Stat. 551; amended Pub. L. 100–689, title III, §302, Nov. 18, 1988, 102 Stat. 4176; Pub. L. 101–237, title III, §313(b)(1), Dec. 18, 1989, 103 Stat. 2077; renumbered §3714 and amended Pub. L. 102–83, §§4(a)(2)(B)(iv), (3), (4), 5(a), (c)(1), Aug. 6, 1991, 105 Stat. 403, 404, 406; Pub. L. 105–368, title X, §1005(b)(10), Nov. 11, 1998, 112 Stat. 3365; Pub. L. 107–103, title IV, §403, Dec. 27, 2001, 115 Stat. 993.)

Editorial Notes

Editorial Notes

Amendments
2001—Subsec. (d). Pub. L. 107–103 amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: "The Secretary shall provide that the mortgage or deed of trust and any other instrument evidencing the loan entered into by a person with respect to a loan guaranteed, insured, or made under this chapter shall contain provisions, in such form as the Secretary shall specify, implementing the requirements of this section, and shall bear in conspicuous position in capital letters on the first page of the document in type at least 2 and ½ times larger than the regular type on such page the following: 'This loan is not assumable without the approval of the Department of Veterans Affairs or its authorized agent.'."
1998—Subsec. (f)(1)(B). Pub. L. 105–368 substituted "after January 1, 1989" for "more than 45 days after the date of the enactment of the Veterans' Benefits and Programs Improvement Act of 1988".
1991—Pub. L. 102–83, §5(a), renumbered section 1814 of this title as this section.
Subsec. (a)(1)(B)(ii). Pub. L. 102–83, §5(c)(1), substituted "3710" for "1810".
Subsec. (a)(2). Pub. L. 102–83, §5(c)(1), substituted "3702" for "1802".
Subsec. (a)(4)(B)(ii)(I). Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration".
Subsec. (d). Pub. L. 102–83, §4(a)(2)(B)(iv), substituted "Department of Veterans Affairs" for "Veterans' Administration".
Subsec. (f)(1)(A). Pub. L. 102–83, §5(c)(1), substituted "3733(a)(1)" for "1833(a)(1)".
1989—Subsecs. (a), (c) to (f). Pub. L. 101–237, §313(b)(1), substituted "Secretary" for "Administrator" wherever appearing.
1988—Pub. L. 100–322, §415(b)(2)(B), renumbered section 1817A of this title as this section.
Subsec. (a)(1). Pub. L. 100–689, §302(1), substituted "Except as provided in subsection (f) of this section, if" for "If" and "loan guaranteed, insured, or made" for "guaranteed, insured, or direct housing loan obtained by a veteran".
Subsec. (f). Pub. L. 100–689, §302(2), amended subsec. (f) generally. Prior to amendment, subsec. (f) read as follows: "This section shall apply only to loans for which commitments are made on or after March 1, 1988."