[Federal Register Volume 59, Number 131 (Monday, July 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16658]


[[Page Unknown]]

[Federal Register: July 11, 1994]


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RESOLUTION TRUST CORPORATION

 

Policy Statement on Procedures for Non-Defaulting Commercial 
Borrowers To Appeal Adverse Credit Decisions of the RTC Acting as 
Conservator

AGENCY: Resolution Trust Corporation.

ACTION: Policy statement.

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SUMMARY: In accordance with Sec. 21A(b)(4)(C) of the Federal Home Loan 
Bank Act, 12 U.S.C. 1441a(b)(4)(C), the Resolution Trust Corporation 
(RTC) announces the establishment of a procedure for non-defaulting 
commercial borrowers to appeal decisions by the RTC, when acting as 
conservator of an insured depository institution, which have the effect 
of terminating or otherwise adversely affecting credit agreements.

EFFECTIVE DATE: This policy is effective on July 11, 1994.

FOR FURTHER INFORMATION CONTACT: Henry W. Abbot, Senior Asset 
Specialist, Office of Asset Management, (202) 416-7132; Robert Gunter, 
Chief of Conservatorship/Receivership Operations Unit, Conservatorship 
Operations, (202) 416-7257; William I. Jones, Counsel, Division of 
Legal Services, (202) 736-3106; Resolution Trust Corporation, 801 17th 
Street NW., Washington, DC 20434.

SUPPLEMENTARY INFORMATION:

Introduction and Authority

    Section 3(b) of the Resolution Trust Corporation Completion Act 
(RTC Completion Act), Public Law No. 93-204, enacted on December 17, 
1993, added a new subparagraph (C) to Sec. 21A(b)(4) of the Federal 
Home Loan Bank Act, 12 U.S.C. 1441a(b)(4), which requires the RTC to 
implement and maintain a program, in a manner acceptable to the Thrift 
Depositor Protection Oversight Board (Oversight Board), to provide an 
appeals process for business and commercial borrowers to appeal 
decisions by the RTC, when acting as conservator of an insured 
depository institution, which would have the effect of terminating or 
otherwise adversely affecting credit or loan agreements, lines of 
credit, and similar arrangements with such borrowers who have not 
defaulted on their obligations to the institution in conservatorship.
    The RTC submitted this Policy on Procedures for Non-defaulting 
Commercial Borrowers to Appeal Adverse Credit Decisions of the RTC 
Acting as Conservator to the Oversight Board for consideration at its 
June 16, 1994 meeting. The Oversight Board adopted a resolution 
approving the policy at that meeting. In that resolution the Oversight 
Board suggested that the RTC make the public aware of the new policy 
through publication in the Federal Register.
    The RTC is rapidly resolving the remaining institutions it operates 
in conservatorships. Inasmuch as the policy affects only the operation 
of those institutions in conservatorship, there is a critical need to 
make the public aware of this new policy quickly.
    In light of the request of the Oversight Board and the need to 
publicize the policy quickly, the RTC has concluded that publication in 
the Federal Register would be the best means of disseminating the new 
policy to members of the public with an interest in the subject matter.

Policy on Procedures for Non-Defaulting Commercial Borrowers to Appeal 
Adverse Credit Decisions of the RTC Acting as Conservator

    The RTC is issuing procedures which provide a process for non-
defaulting business and commercial borrowers to appeal the RTC's 
decisions (when acting as a conservator) which terminate or otherwise 
adversely affect credit or loan agreements, lines of credit or other 
similar arrangements.

I. Scope

    The appeals process outlined herein pertains to adverse credit 
decisions affecting a non-defaulting commercial borrower made by the 
RTC as conservator for an insured depository institution for which the 
RTC was acting as conservator on or after December 17, 1993. These 
procedures shall only apply to adverse credit decisions affecting a 
non-defaulting commercial borrower made on or after December 17, 1993 
by the RTC as conservator for an insured depository institution and 
only during the period for which the RTC acts as conservator for such 
insured depository institution. The appeals process is not intended to 
deny borrowers any rights otherwise provided under law.
    The appeals process described in this policy does not limit or 
affect the exercise by the RTC, as conservator or receiver, of its 
authority to repudiate contracts pursuant to 12 U.S.C. Sec. 1821(e).

II. Background

    Generally, a predecessor institution retains the obligation to fund 
unfunded or partially funded loan commitments, and such obligations are 
not transferred to or assumed by the new savings association which the 
RTC operates in conservatorship. However, it has also been the RTC's 
policy for the conservator to consider funding partially funded loan 
commitments, as generally outlined in the Asset Management and 
Disposition Manual, Circular 10100.1, Change-One, Section F(3), and as 
further detailed with respect to the handling of construction loans in 
Circular 10100.32, Subject: ``Funding of ADC Loan Commitments,'' which 
can be obtained upon request to one of the above listed contacts or 
from one of the public reading rooms of the RTC. These practices will 
continue. Pursuant to Section 21A(b)(4)(C) of the Federal Home Loan 
Bank Act, as added by Section 3(b) of the RTC Completion Act, effective 
December 17, 1993, whenever the RTC acting as conservator decides to 
deny an extension of credit to a non-defaulting commercial borrower, 
the borrower shall have an opportunity to appeal the decision to the 
next level of authority above the initial decision maker, as described 
below.

III. Definitions

    The following definitions shall apply for purposes of this policy:
    A. Adverse Credit Decision--a decision, made by the RTC as 
conservator of an insured depository institution, to deny funds or a 
request for a new extension of credit for commercial or business 
purposes to a non-defaulting commercial borrower.
    B. Credit Agreement--a construction loan agreement, commercial 
mortgage agreement, commercial business loan agreement, line of credit 
agreement or other commercial credit agreement for commercial or 
business purposes.
    C. Non-defaulting Commercial Borrower--a person or entity,
    (1) who entered into a credit agreement with either:
    (a) the predecessor institution prior to the appointment of the RTC 
as receiver of the predecessor institution, or
    (b) the depository institution in conservatorship prior to the 
appointment of the RTC as conservator, where there is no predecessor 
institution, and
    (2) who is not in default of any obligations owed to the 
predecessor institution or the institution in conservatorship.
    D. Predecessor Institution--the insured depository institution in 
receivership from which the assets, deposits and certain other 
liabilities were transferred to the depository institution in 
conservatorship which made the adverse credit decision.

IV. General Policies

A. Right of Appeal

    A non-defaulting commercial borrower shall have the right to appeal 
an adverse credit decision made by a Managing Agent or other person or 
entity authorized to act on behalf of the RTC as conservator of an 
insured depository institution.

B. Notice to Non-Defaulting Commercial Borrower

    A Managing Agent or other person or entity authorized to act on 
behalf of the RTC as conservator shall give notice to a non-defaulting 
commercial borrower of (1) any adverse credit decision within the scope 
of this directive as outlined in the Paragraph I above, and (2) the 
right to appeal such decision. The notice should be sent via certified/
registered mail-return receipt requested to document receipt by the 
borrower. (Two sample forms of such notice are included as Appendices A 
and B.) This notice is in addition to any notice by the conservator 
terminating a line of credit, or other credit agreement, or notice by 
the receiver of the predecessor institution repudiating a loan 
commitment or other credit agreement.

C. Procedure for the Appeal

    (1) The Senior Credit Review Committee of the field office with 
jurisdiction over the conservatorship shall normally decide the appeal 
of the non-defaulting commercial borrower. However, if the adverse 
credit decision under appeal was made by a field office's Senior Review 
Committee, or by a person or entity at a level of authority above the 
field office Senior Credit Review Committee, then the person or entity 
at the next level of authority above the initial decision maker, as 
determined by the RTC's delegations of authority, shall decide the 
appeal of the non-defaulting borrower. (The person or entity deciding 
the appeal is hereafter referred to as the ``hearer of the appeal.'')
    (2) A non-defaulting commercial borrower must file an appeal, in 
writing, with the hearer of the appeal within 60 calendar days of 
receipt of the notice described in subparagraph IV.B above.
    (3) A non-defaulting commercial borrower must state the grounds for 
the appeal. The non-defaulting commercial borrower may submit only 
documentary evidence in support of the appeal.
    (4) The hearer of the appeal shall make a good faith effort to 
decide the appeal within 30 calendar days of receipt of the appeal and 
all documentation necessary to act on the appeal.
    (5) (a) The record of an appeal shall consist of the written appeal 
and documentary evidence submitted by the non-defaulting commercial 
borrower and any other evidence and information within the possession 
or control of the RTC that relates to the appeal.
    (b) The non-defaulting commercial borrower shall have the right to 
review any documentation submitted by such borrower, along with the 
appeal or prior to the filing of the appeal, for purposes of 
determining the accuracy of the RTC's records. The hearer of the appeal 
may extend the period for deciding the appeal of such reasonable time 
as may be necessary to permit any such review of the documentation 
submitted by the borrower.
    (6) The hearer of the appeal may reverse an adverse credit decision 
if the hearer determines that (a) the extension of credit is likely to 
reduce a conservatorship's overall losses, or (b) the extension of 
credit would not be likely to increase the conservatorship's overall 
losses.
    (7) As a condition to reversing the adverse credit decision, the 
hearer of the appeal may require the non-defaulting commercial borrower 
to release any related claim against the receiver for a predecessor 
institution, in whole or in part.
    (8) The hearer of the appeal shall provide written notice of the 
decision, including an explanation of any negative ruling, to the 
relevant Managing Agent, Field Office Claims Department, and to the 
non-defaulting commercial borrower. The RTC will make a good faith 
effort to provide such notice within 30 calendar days of receiving the 
Appeal Letter and all other information necessary to act on the appeal.

D. Appeal Log

    A log should be maintained in each conservatorship to track each 
appeal under this procedure. Entries in the log, to be initiated upon 
receipt of the borrower's appeal, shall include the following items: 
borrower's name, date of credit application, date of adverse credit 
decision, decision by whom, date borrower's appeal received, hearer the 
of appeal, date of hearer's decision, date borrower notified of 
decision, and remarks.

E. Appointment of Receiver

    Upon the appointment of a receiver for the depository institution 
operated in conservatorship by the RTC, with respect to such 
institution, the right of all non-defaulting commercial borrowers to 
appeal (and any pending appeal) under this process terminates. 
Thereafter, any rights of the non-defaulting commercial borrowers, with 
respect to such depository institution, are governed by 12 U.S.C. 
Sec. 1821(d).

F. No Further Appeal

    A non-defaulting commercial borrower shall have no right to appeal 
the decision of the hearer of the appeal within the RTC or to any 
court.

G. No Effect on RTC's Rights as Receiver or Conservator

    Nothing contained in this policy shall be construed to waive or 
alter the rights of the RTC as conservator or receiver with respect to 
any commercial borrower or any insured depository institution. Such 
rights include, by way of illustration only, the rights to repudiate 
contracts, to leave obligations and liabilities with the receiver of 
the predecessor institution and to require non-defaulting commercial 
borrowers to adhere to the receivership claims procedures of the RTC.
    The filing of an appeal with the hearer of the appeal in accordance 
with the appeal procedures outlined in subparagraph IV.C above does not 
preserve, and does not substitute for, the requirement that a claim be 
filed and the claims process be pursued with respect to any claim 
against: (1) the receiver for any predecessor institution, or (2) the 
receiver for the depository institution operated in conservatorship if 
a receiver is appointed for such institution.

V. Responsibility

    RTC Field Office Vice Presidents are responsible for ensuring that 
all conservatorships, SAMDA contractors, commercial loan servicers, 
other commercial loan managers, and appropriate RTC staff are aware of 
and comply with this policy.

    By Order of John E. Ryan, Deputy and Acting Chief Executive 
Officer.

    Dated at Washington, D.C., this 5th day of July, 1994.

Resolution Trust Corporation.
William J. Tricarico,
Assistant Secretary.

Appendix A--Notice of Adverse Decision and Right To Appeal

[For Use Where Conservator Does Not Assume Obligation To Fund and/or 
Where the Receiver of Predecessor Institution Repudiates]

[date]

[Name of Borrower]
[Address of Borrower]
Dear ________________:
    Effective [date], the Office of Thrift Supervision appointed the 
Resolution Trust Corporation as Receiver for [Predecessor 
Institution]. Concurrently with such appointment, a new federal 
mutual association was formed, [name of de novo institution], and 
the Resolution Trust Corporation was appointed Conservator of the 
[name of de novo institution] (the ``Conservator''). Most of the 
assets of [Predecessor Institution] were acquired by the Conservator 
in consideration of the assumption by the Conservator of some, but 
not all, of the liabilities of the [Predecessor Institution]. The 
Conservator DID NOT, however, assume the obligation to continue to 
fund your loan{, and as you were informed in another letter the 
Receiver for [Predecessor Institution] has repudiated the loan 
agreement and terminated any obligation to continue to fund your 
loan}.\1\ You may have a claim against the Receiver of [Predecessor 
Institution] for the unfunded loan amount. You must follow any 
instructions from the receiver regarding the filing of such claim.
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    \1\To be used when a repudiation occurs.
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    Notwithstanding that the Conservator has no obligation to 
continue to fund your loan, the Conservator has the discretion to 
provide funds to you through a new extension of credit, when the 
Conservator determines, in its sole discretion, that it is in the 
best interest of the Conservator to provide those funds. However, 
the Conservator has decided not to provide funds to you.
    Because you are a non-defaulting commercial borrower of [name of 
the predecessor institution], section 21A(b)(4)(C) of the Federal 
Home Loan Bank Act provides you with an opportunity to appeal this 
adverse credit decision of the Conservator. You must submit your 
appeal in writing to the hearer of the appeal, set forth below, 
within 60 days of receipt of this notice, stating the grounds for 
your appeal. In support of your appeal, you may submit documentary 
evidence, which must be submitted at the same time as your letter of 
appeal. The hearer of the appeal will conduct no evidentiary 
hearing. A copy of the RTC's policy on borrower appeals is attached 
for your information.
    You should know that the hearer of the appeal may only reverse 
the adverse credit decision if the hearer determines that to do so 
would reduce, or would not increase, the overall losses to the RTC 
as Conservator.
    Your appeal should be submitted to:

[Name of Hearer of the Appeal]
[Address of Hearer]
Attention: ____________

    The filing of an appeal with the hearer of the appeal does not 
preserve your claim with the receiver of [Predecessor Institution] 
or affect in any way the right of the Receiver to repudiate your 
credit agreement.

    Sincerely,

[Managing Agent or other official]

Appendix B--Notice of Adverse Decision and Right To Appeal

[For Use]

    (1) Where Credit Agreement Transferred to Conservator and 
Conservator Terminated Agreement in Accordance With Its Terms, or
    (2) Where Non-Defaulting Commercial Borrower Has Made an 
Application for a New Loan or a New Line of Credit.]

[date]

[Name of Borrower]
[Address of Borrower]

    Dear ____________:
    The Resolution Trust Corporation acting as Conservator of [name 
of de novo] (the ``Conservator'') has [reviewed your application for 
credit and has] decided not to provide funds to you. Section 
21A(b)(4)(C) of the Federal Home Loan Bank Act provides you with an 
opportunity to appeal this adverse credit decision of the 
Conservator. You must submit your appeal in writing to the hearer of 
the appeal, set forth below, within 60 days of receipt of this 
notice, stating the grounds for your appeal. In support of your 
appeal, you may submit documentary evidence, which must be submitted 
at the same time as your letter of appeal. The hearer of the appeal 
will conduct no evidentiary hearing. A copy of the RTC's policy on 
borrower appeals is attached for your information.
    You should know that the hearer of the appeal may only reverse 
the adverse credit decision if the hearer determines that to do so 
would reduce, or would not increase, the overall losses to the RTC 
as Conservator.

    Your appeal should be submitted to:

[Name of Hearer of the Appeal]
[Address of Hearer]
Attention: ____________

    Sincerely yours,

[Managing Agent or other official]

[FR Doc. 94-16658 Filed 7-8-94; 8:45 am]
BILLING CODE 6714-01-M