shall be taken into consideration as if made subsequent thereto. (g) A loan eligible for insurance may be either guaranteed or insured at the option of the borrower and the lender: Provided, That if the Secretary is not advised of the exercise of such option at the time the loan is reported pursuant to § 36.4303 such loan will not be eligible for insurance. (h) A guaranty is reduced or increased pro rata with any deduction or increase in the amount of the guaranteed indebtedness, but in no event will the amount payable on a guaranty or the percentage of the indebtedness corresponding to that of the original guaranty whichever is less. However, on a graduated payment mortgage loan, the percentage of guaranty applicable to the original loan amount pursuant to paragraph (a) of this section shall apply to the loan indebtedness to the extent scheduled deferred interest is added to principal during the graduation period without regard to the original maximum dollar amount of guaranty. (Authority: 38 U.S.C. 3703(b) and (d)) (i) The amount of any guaranty or the amount credited to a lender's insurance account in relation to any insured loan shall be charged against the original or remainder of the guaranty benefit of the borrower. Complete or partial liquidation, by payment or otherwise, of the veteran's guaranteed or insured indebtedness does not increase the remainder of the guaranty benefit, if any, otherwise available to the veteran. When the maximum amount of guaranty or insurance legally available to a veteran shall have been granted, no further guaranty or insurance is available to the veteran. (j) Notwithstanding the provisions of paragraph (g) of this section, the Secretary may exclude the amount of guaranty or insurance entitlement used for any guaranteed or insured loan provided: (1) The property which served as security for the loan has been disposed of by the veteran, or has been destroyed by fire or other natural hazard; and (2)(i) The loan has been repaid in full or the Secretary has been released from liability as to the loan, or if the Secretary has suffered a loss on sai loan, such loss has been paid in full; a (ii) A veteran-transferee has agree to assume the outstanding balance of the loan and consented to the use of hi or her entitlement to the extent th entitlement of the veteran-transfero had been used originally; or (3) The loan has been repaid in full and the loan for which the vetera seeks to use entitlement is secured by the same property which secured the fully repaid loan; or (4) In a case in which the veterar still owns the property purchased with a VA-guaranteed loan, the Secretary may, one time only, restore entitlement used on that loan if: (i) the loan has been repaid in full or if the Secretary has suffered a loss or the loan, the loss has been paid in full. or (ii) the Secretary has been released from liability as to the loan, and, if the Secretary has suffered a loss on the loan, the loss has been paid in full. (k) The Secretary may, in any case involving circumstances deemed appropriate, waive either or both of the requirements set forth in paragraphs (j)(1) and (j)(2)(i) of this section. (Authority: 38 U.S.C. 3702(b), 3710) (1)(1) The amount of guaranty entitlement, available and unused, of an eligible unmarried surviving spouse. (whose eligibility does not result from his or her own service) is determinable in the same manner as in the case of any veteran, and any entitlement which the decedent (who was his or her spouse) used shall be disregarded. A certificate as to the eligibility of such surviving spouse, issued by the Secretary, shall be a condition precedent to the guaranty or insurance of any loan made to a surviving spouse in such capacity. (Authority: 38 U.S.C. 3701(a)) (2) An unmarried surviving spouse who was a co-obligor under an existing VA guaranteed, insured or direct loan be considered to be a veteran elifor an interest rate reduction reing loan pursuant to 38 U.S.C. )(8) or (9)(B)(i). rity: 38 U.S.C. 3710(e)(3)) city: 38 U.S.C. 501, 3703(c)(1)) 7274, Nov. 27, 1948, as amended at 35 19. Nov. 7, 1970: 40 FR 34589, Aug. 18, BFR 43672, Aug. 31, 1981; 47 FR 15139, E 1982; 49 FR 28243, July 11, 1984; 50 FR an. 24, 1985; 55 FR 40655, Oct. 4, 1990; 60 59. July 26, 1995] 303 Reporting requirements. No default exists thereunder that continued for more than 30 days; Except for acquisition and imrement loans as defined in § 36.4301, construction, repairs, alterations, mprovements effected subsequent he appraisal of reasonable value, paid for out of the proceeds of the which have not been inspected approved upon completion by a pliance inspector designated by the retary, have been completed propin full accordance with the plans especifications upon which the Final appraisal was based; and any ations or changes of identity in property have been approved as reed in §36.4304 concerning guaranty nsurance of loans to veterans; The loan conforms otherwise with applicable provisions of 38 U.S.C. apter 37 and of the regulations conning guaranty or insurance of loans veterans. thority: 38 U.S.C. 3703(c)(1)) b) Loans made pursuant to 38 U.S.C. 3(a). although not entitled to autoitic insurance thereunder, en made by a lender of a class demay, ibed in 38 U.S.C. 3702(d)(1), be rearted for issuance of an insurance edit. uthority: 38 U.S.C. 3702(d), 3703(a)(2)) § 36.4303 (c) Each loan proposed to be made to an eligible veteran by a lender not within a class described in 38 U.S.C. 3702(d) shall be submitted to the Secretary for approval prior to closing. Lenders described in 38 U.S.C. 3702(d) shall have the optional right to submit any loan for such prior approval. The Secretary, upon determining any loan so submitted to be eligible for a guaranty, or for insurance, will issue a certificate of commitment with respect thereto. (d) A certificate of commitment shall entitle the holder to the issuance of the evidence of guaranty or insurance upon the ultimate actual payment of the full proceeds of the loan for the purposes described in the original report and upon the submission within 60 days thereafter of a supplemental report showing that fact and: (1) The identity of any property purchased therewith, (2) That all property purchased or acquired with the proceeds of the loan has been encumbered as required by the regulations concerning guaranty or insurance of loans to veterans, (3) Except for acquisition and improvement loans as defined in § 36.4301(c), any construction, repairs, alterations, or improvements paid for out of the proceeds of the loan, which have not been inspected and approved subsequent to completion by a compliance inspector designated by the Secretary, have been completed properly in full accordance with the plans and specifications upon which the original appraisal was based; and that any deviations or changes of identity in said property have been approved as required by §36.4304, and (4) That the loan conforms otherwise with the applicable provisions of 38 U.S.C. Chapter 37 and the regulations concerning guaranty or insurance of loans to veterans. (Authority: 38 U.S.C. 3703(c)(1)) (e) Upon the failure of the lender to report in accordance with the provisions of paragraph (d) of this section, the certificate of commitment shall have no further effect, or the amount of guaranty or insurance shall be reduced pro rata, as may be appropriate under the facts of the case: Provided, nevertheless, that if the loan otherwise meets the requirements of this section, said certificate of commitment may be given effect by the Secretary, notwithstanding the report is received after the date otherwise required. (f) For loans not reported within 60 days, evidence of guaranty will be issued only if the loan report is accompanied by a statement signed by a corporate officer of the lending institution which explains why the loan was reported late. The statement must identify the case or cases in issue and must set forth the specific reason or reasons why the loan was not submitted on time. Upon receipt of such a statement evidence of guaranty will be issued. A pattern of late reporting and the reasons therefore will be considered by VA in taking action under § 36.4349. (g) Evidence of a guaranty will be issued by the Secretary by appropriate endorsement on the note or other instrument evidencing the obligation, or by a separate certificate at the option of the lender. Notice of credit to an insurance account will be given to the lender. Unused certificates of eligibility issued prior to March 1, 1946, are void. No certificate of commitment shall be issued and no loan shall be guaranteed or insured unless the lender, the veteran, and the loan are shown to be eligible. Evidence of guaranty or insurance will not be issued on any loan for the purchase or construction of residential property unless the veteran, or the veteran's spouse in the case of a veteran who cannot occupy the property because of active duty status with the Armed Forces, certifies in such form as the Secretary shall prescribe that the veteran, or spouse of the active duty veteran, intends to occupy the property as his or her home. Guaranty or insurance evidence will not be issued on any loan for the alteration, improvement, or repair of any residential property or on a refinancing loan unless the veteran, or spouse of an active duty servicemember, certifies that he or she presently occupies the property as his or her home. An exception to this is if the home improvement or refinancing loan is for extensive changes to the property that will prevent the veteran or the spouse of the active duty veteran from occupying the property while the work is being com pleted. In such a case the veteran o spouse of the active duty veteran mus certify that he or she intends to occup or reoccupy the property as his or he home upon completion of the substan tial improvements or repairs. All of the mentioned certifications must take place at the time of loan application and closing except in the case of loan: automatically guaranteed, in which case veterans or, in the case of an ac tive duty veteran, the veterans' spouse shall make the required certification only at the time the loan is closed. (Authority: 38 U.S.C. 3704(c)) (h) Subject to compliance with the regulations concerning guaranty or insurance of loans to veterans, the certificate of guaranty or the evidence of insurance credit will be issuable within the available entitlement of the veteran on the basis of the loan stated in the final loan report or certification of loan disbursement, except for refinancing loans for interest rate reductions. The available entitlement of a veteran will be determined by the Secretary as of the date of receipt of an application for guaranty or insurance of a loan or of a loan report. Such date of receipt shall be the date the application or loan report is date-stamped into VA. Eligibility derived from the most recent period of service: (1) Shall cancel any unused entitlement derived from any earlier period of service, and (2) Shall be reduced by the amount by which entitlement from service during any earlier period has been used to obtain a direct, guaranteed, or insured loan. (i) On property which the veteran owns at the time of application, or (ii) As to which the Secretary has incurred actual liability or loss, unless in the event of loss or the incurrence and payment of such liability by the Secretary, the resulting indebtedness of the veteran to the United States has been paid in full. Provided, That if the Secretary issues or has issued a certificate of commitment covering the loan described in the application for guaranty or insurance or in the loan report, the amount and percentage of guaranty or the amount of the insurance credit mplated by the certificate of itment shall not be subject to reon if the loan has been or is closed late that is not later than the exon date of the certificate of coment, notwithstanding that the tary in the meantime and prior to suance of the evidence of guaror insurance shall have incurred I liability or loss on a direct, nteed, or insured loan previously ned by the borrower. For the purof this paragraph, the Secretary e deemed to have incurred actual in a guaranteed or insured loan if Secretary has paid a guaranty or ance claim thereon and the vet8 resultant indebtedness to the rnment has not been paid in full, o have incurred actual liability on Aranteed or insured loan if the Secy is in receipt of a claim on the anty or insurance or is in receipt notice of default. In the case of a ct loan, the Secretary will be med to have incurred an actual loss he loan is in default. A loan, the seeds of which are to be disbursed gressively or at intervals, will be ned to have been closed for the purs of this paragraph if the loan has 1 completed in all respects exceptthe actual "payout" of the entire I proceeds. hority: 38 U.S.C. 3702(a), 3710(c)) ) Any amounts that are disbursed an ineligible purpose shall be exled in computing the amount of ranty or insurance credit. ) Notwithstanding the lender has neously, but without intent to misresent, made certification with reet to paragraph (a)(1) of this sec1. the guaranty or insurance will beme effective upon the curing of such fault and its continuing current for a riod of not less than 60 days thereter. For the purpose of this paraaph a loan will be deemed current so ng as the installment is received thin 30 days after its due date. (k) No guaranty or insurance comitment or evidence of guaranty or inrance will be issuable in respect to y loan to finance a contract that: (1) Is for the purchase, construction, pair, alteration, or improvement of a welling or farm residence; § 36.4303 (2) Is dated on or after June 4, 1969; (3) Provides for a purchase price or cost to the veteran in excess of the reasonable value established by the Secretary; and (4) Was signed by the veteran prior to the veteran's receipt of notice of such reasonable value; unless such contract includes, or is amended to include, a provision substantially as follows: It is expressly agreed that, notwithstanding any other provisions of this contract, the purchaser shall not incur any penalty by forfeiture of earnest money or otherwise or be obligated to complete the purchase of the property described herein, if the contract purchase price or cost exceeds the reasonable value of the property established by the Department of Veterans Affairs. The purchaser shall, however, have the privilege and option of proceeding with the summation of this contract without regard to the amount of the reasonable value established by the Department of Veterans Affairs. (Authority: 38 U.S.C. 501, 3703(c)(1)) con (1) With respect to any loan for which a commitment was made on or after March 1, 1988, the Secretary must be notified whenever the holder receives knowledge of disposition of the residential property securing a VA-guaranteed loan. (1) If the seller applies for prior approval of the assumption of the loan, then: (i) A holder (or its authorized servicing agent) who is an automatic lender must examine the creditworthiness of the purchaser and determine compliance with the provisions of 38 U.S.C. 3714. The creditworthiness review must be performed by the party that has automatic authority. If both the holder and its servicing agent are automatic lenders, then they must decide between themselves which one will make the determination of creditworthiness, whether the loan is current and whether there is a contractual obligation to assume the loan, as required by 38 U.S.C. 3714. If the actual loan holder does not have automatic authority and its servicing agent is an automatic lender, then the servicing agent must make the determinations required by 38 U.S.C. 3714 on behalf of the holder. The actual holder will remain ultimately responsible for any failure of its servicing agent to comply with the applicable law and VA regulations. (A) If the assumption is approved and the transfer of the security is completed, then the notice required by this paragraph shall consist of the credit package (unless previously provided in accordance with paragraph (k)(1)(i)(B) of this section) and a copy of the executed deed and/or assumption agreement as required by VA office of jurisdiction. The notice shall be submitted to the Department with VA receipt for the funding fee provided for in §36.4312(e)(3) of this part. (B) If the application for assumption is disapproved, the holder shall notify the seller and the purchaser that the decision may be appealed to the VA office of jurisdiction within 30 days. The holder shall make available to that VA office all items used by the holder in making the holder's decision in case the decision is appealed to VA. If the application remains disapproved after 60 days (to allow time for appeal to and review by VA), then the holder must refund $50 of any fee previously collected under the provisions of §36.4312(d)(8) of this part. If the application is subsequently approved and the sale is completed, then the holder (or its authorized servicing agent) shall provide the notice described in paragraph (k)(1)(i)(A) of this section. (C) In performing the requirements of paragraphs (k)(1)(i)(A) or (k)(1)(i)(B) of this section, the holder must complete its examination of the creditworthiness of the prospective purchaser and advise the seller no later than 45 days after the date of receipt by the holder of a complete application package for the approval of the assumption. The 45-day period may be extended by an interval not to exceed the time caused by delays in processing of the application that are documented as beyond the control of the holder, such as employers or depositories not responding to requests for verifications, which were timely forwarded, or follow-ups on those requests. (ii) If neither the holder nor its authorized servicing agent is an automatic lender, the notice to VA shall include: (A) Advice regarding whether the loan is current or in default; (B) A copy of the purchase contract and (C) A complete credit package devel oped by the holder which the Secretary may use for determining the credit worthiness of the purchaser. (D) The notice and documents re quired by this section must be sub. mitted to the VA office of jurisdictior no later than 35 days after the date of receipt by the holder of a complete ap plication package for the approval of the assumption, subject to the same extensions as provided in paragraph (k)(1)(i) of this section. If the assumption is not automatically approved by the holder or its authorized agent, pursuant to the automatic authority provisions, $50 of any fee collected in ac cordance with § 36.4312(d)(8) of this part must be refunded. If the Department of Veterans Affairs does not approve the assumption, the holder will be notified and an additional $50 of any fee collected under §36.4312(d)(8) of this section must be refunded following the expiration of the 30-day appeal period set out in paragraph (k)(1)(i)(B) of this section. If such an appeal is made to the Department of Veterans Affairs, then the review will be conducted at the Department of Veterans Affairs office of jurisdiction by an individual who was not involved in the original disapproval decision. If the application for assumption is approved and the transfer of security is completed, then the holder (or its authorized servicing agent) shall provide the notice required in paragraph (k)(1)(i)(A) of this section. (2) If the seller fails to notify the holder before disposing of property securing the loan, the holder shall notify the Secretary within 60 days after learning of the transfer. Such notice shall advise whether or not the holder intends to exercise its option to immediately accelerate the loan and whether or not an opportunity will be extended to the transferor and transferee to apply for retroactive approval of the |