Section 1951.226 - Sale or exchange of security propertyA cash sale of all or a portion of a borrower's assets or an exchange of security property may be approved subject to the conditions set forth below.
(a)Authorities.(1) The District Director is authorized to approve actions under this section involving only chattels.(2) The State Director is authorized to approve real estate transactions except as noted in the following paragraph.(3) Approval of the Administrator must be obtained when a substantial loss to the Government will result from a sale; one or more members of the borrower's organization proposes to purchase the property; it is proposed to sell the property for less than the appraised value; or the buyer refuses to assume all the terms of the Grant Agreement. It is not Rural Development policy to sell security property to one or more members of the borrower's organization at a price which will result in a loss to the Government.(b)General. Approval may be given when the approval official determines and documents that: (1) The consideration is adequate;(2) The release will not prevent carrying out the purpose of the loan;(3) The remaining property is adequate security for the loan or the transaction will not adversely affect Rural Development's security position;(4) If the property to be sold or exchanged is to be used for the same or similar purposes for which the loan or grant was made, the purchaser will:(i) Execute Form RD 400-4, "Assurance Agreement." The covenants involved will remain in effect as long as the property continues to be used for the same or similar purposes for which the loan or grant was made. The instrument of conveyance will contain the covenant referenced in § 1951.204 of this subpart; and(ii) Provide to Rural Development a written agreement assuming all rights and obligations of the original grantee if grant funds were provided. See § 1951.215 of this subpart for additional guidance on grant agreements.(5) The proceeds remaining after paying any reasonable and necessary selling expenses are used for one or more of the following purposes:(i) To pay on Rural Development debts according to § 1951.221 of this subpart; on debts secured by a prior lien; and on debts secured by a subsequent lien if it is to Rural Development's advantage.(ii) To purchase or acquire through exchange property more suited to the borrower's needs, if the Rural Development debt will be as well secured after the transaction as before.(iii) To develop or enlarge the facility if necessary to improve the borrower's debt-paying ability; place the operation on a sounder basis; or otherwise further the loan objectives and purposes.(6) Disposition of property acquired in whole or part with Rural Development grant funds will be handled in accordance with the grant agreement.(c)Processing.(1) The case file will contain the following:(i) Except for actions approved by the District Director, Exhibit A of this subpart (available in any Rural Development office), appropriately completed;(ii) The appraisal report, if appropriate;(iii) Name of purchaser, anticipated sales price, and proposed terms and conditions;(iv) Form RD 1965-8, "Release from Personal Liability," including the County Committee memorandum and the State Director's recommendations;(v) An executed Form RD 400-4, if applicable;(vi) An executed Form RD 465-1, if applicable;(vii) Form RD 460-4, "Satisfaction," if a debt has been paid in full or satisfied by debt settlement action. For cases involving real estate, a similar form may be used if approved by OGC; and(viii) Written approval of the Administrator when required under § 1951.226(a)(3) of this subpart;(2)Releasing security.(i) The District Director is authorized to satisfy or terminate chattel security instruments when § 1951.226(b) of this subpart and § 1962.17 and § 1962.27 of subpart A of part 1962 of this chapter have been complied with. Partial release may be made by using Form RD 460-1, "Partial Release," or Form RD 462-12, "Statements of Continuation, Partial Release, Assignment, Etc."(ii) Subject to § 1951.226(b) of this subpart, the State Director is authorized to release part or all of an interest in real estate security by approving Form RD 465-1. Partial release of real estate security may be made by use of Form RD 460-1 or other form approved by OGC.(3) Rural Development liens will not be released until the sale proceeds are received for application on the Government's claim. In states where it is necessary to obtain the insured note from the lender to present to the recorder before releasing a portion of the land from the mortgage, the borrower must pay any cost for postage and insurance of the note while in transit. The District Director will advise the borrower when it requests a partial release that it must pay these costs. If the borrower is unable to pay the costs from its own funds, the amounts shown on the statement of actual costs furnished by the insured lender may be deducted from the sale proceeds.(d)Release from liability.(1) When an Rural Development debt is paid in full from the proceeds of a sale, the borrower will be released from liability by use of Form RD 1965-8.(2) When sale proceeds are not sufficient to pay the Rural Development debt in full, any balance remaining will be handled in accordance with procedures for debt settlement actions set forth in subpart C of part 1956 of this chapter. (i) In determining whether a borrower should be released from liability, the State Director will consider the borrower's debt-paying ability based on its assets and income at the time of the sale.(ii) Release from liability will be accomplished by using Form RD 1965-8 and obtaining from the County Committee a memorandum recommending the release which contains the following statement: ________________ in our opinion does not have reasonable debt-paying ability to pay the balance of the debt after considering its assets and income at the time of the sale. The borrower has cooperated in good faith, used due diligence to maintain the security against loss, and otherwise fulfilled the covenants incident to the loan to the best of its ability. Therefore, we recommend that the borrower be released from liability upon the completion of the sale.
55 FR 4399, Feb. 8, 1990, as amended at 69 FR 70884, Dec. 8, 2004