Part VI.
Credit Union Department
Chapter 91.
Chartering, Operations, Mergers, Liquidations
Subchapter D. Powers of Credit Unions
7 TAC §91.403
The Texas Credit Union Commission proposes new §91.403
concerning federal parity with respect to offering Guaranteed Auto Protection
(GAP) programs. The new rule is being proposed to provide specific authorization
for a state-chartered credit union to establish and operate a Guaranteed Auto
Protection (GAP) program for its members. A GAP program protects institutions
from losses resulting from inadequate or lost collateral. Also, under certain
programs, borrowers may not be held responsible for deficiencies. Currently,
state credit unions can offer this type of program provided they first obtain
a license to offer debt cancellation contracts from the Texas Department of
Insurance. Federal credit unions are not required to obtain such a license
due to a determination that the Federal Credit Union Act preempts state insurance
law with respect to debt cancellation contracts. This places state-chartered
credit unions at a competitive disadvantage.
Lynette Pool-Harris, Deputy Commissioner, has determined that for the first
five-year period the new rule is in effect, there will be no fiscal implications
for state or local government as a result of enforcing or administering the
rule.
Ms. Pool-Harris has also determined that for each year of the first five
years the proposed rule is in effect, the public benefit anticipated will
be to provide state credit unions parity with federal credit unions with respect
to offering GAP insurance, thereby allowing state credit unions to better
serve their members and to reduce their exposure to credit losses. There will
be no effect on small businesses as a result of adopting this section. There
is no anticipated economic cost to entities that will be required to comply
with the new section, nor will there be an impact on local employment.
Written comments on the proposed rule must be submitted within 30 days
after its publication in the
Texas Register
to Lynette Pool-Harris, Deputy Commissioner, Credit Union Department, 914
East Anderson Lane, Austin, Texas, 78752-1699.
The new section is proposed under the provisions of Texas Finance
Code, Section 123.003, which allows the Credit Union Commission to adopt rules
that authorize a state credit union to engage in any activity in which it
could engage, exercise any power it could exercise, or make any loan or investment
it could make, if it were operating as a federal credit union; and under the
Texas Finance Code, Section 15.402, which authorizes the commission to adopt
reasonable rules for administering Title 2, Chapter 15 and Title 3, Subtitle
D of the Texas Finance Code.
The specific section affected by the proposed rule is Texas Finance Code,
Section 123.107 pertaining to insurance for members.
§91.403Federal Parity--Guaranteed Auto Protection (GAP) Program/Debt Cancellation Contracts
A credit union may establish and operate a GAP program for its members
as if it were operating as a federal credit union. For the purposes of this
section, a GAP program is defined as a program in which the credit union purchases
insurance to protect itself from losses resulting when a leased vehicle or
vehicle securing a loan or other extension of credit held by the credit union
is declared a total loss or is stolen and the primary insurance settlement
is not sufficient to cover the outstanding balance. The credit union may then,
with or without a fee, enter into a debt cancellation contract, GAP waiver,
or similar agreement under which the member will not be held responsible for
the deficiency. If the debt cancellation contract, GAP waiver, or similar
agreement is offered on a fee basis, then participation must be optional for
the member.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
January 22, 1999.
TRD-9900464
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 7, 1999
For further information, please call: (512) 837-9236
7 TAC §91.701, §91.705
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Credit Union Department or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Credit Union Commission proposes the repeal
of §91.701 pertaining to loans made to credit union members, and §91.705
pertaining to loans to officials. In conjunction with the repeal of these
rules, the Commission is publishing for comment proposed new rules of §§91.701-91.719
pertaining to loans.
Lynette Pool-Harris, Deputy Commissioner, has determined that for each
year of the first five years the repeal is in effect, there will be no fiscal
implications for state or local government as a result of enforcing or administering
the repeal of these sections.
Lynette Pool-Harris has determined that for each year of the first five
years the repeal is in effect, the public benefit anticipated as a result
of the repeal will be a set of new rules that (1) are more clear, (2) grant
credit unions the maximum flexibility to exercise the lending authorities
granted in the Texas Finance Code, and (3) set specific limitations due to
safety and soundness considerations. There will be no effect on small businesses
as a result of repealing these sections. There is no anticipated economic
cost to entities that are currently required to comply with these sections
as result of their repeal.
Written comments on the proposed repeal must be submitted within 30 days
after its publication in the
Texas Register
to Lynette Pool-Harris, Deputy Commissioner, Credit Union Department, 914
East Anderson Lane, Austin, Texas, 78752-1699.
The repeal is proposed under the provisions of Section 15.402
of the Texas Finance Code, which authorizes the commission to adopt reasonable
rules for administering the Texas Credit Union Act.
The specific sections affected by this proposed repeal are Sections 124.001,
124.003, and 124.202 of the Texas Finance Code pertaining to loans to members
and credit union officials.
§91.701.Loans.
§91.705.Loans to Officials.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 22, 1999.
TRD-9900467
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 7, 1999
For further information, please call: (512) 837-9236
7 TAC §§91.701-91.719
The Texas Credit Union Commission proposes new Subchapter
G, §§91.701-91.719 concerning loans and extensions of credit
by or involving a credit union. In conjunction with these proposed new sections,
the Commission is proposing the repeal of existing §91.701 and §91.705.
Notice of the repeals is published elsewhere in this issue of the
Texas Register
.
In July 1998, the Commission identified its lending rules as an important
area for updating and streamlining. Lending is a key area of credit union
operations and these rules had not been comprehensively reviewed in a number
of years. In order to grant credit unions the maximum flexibility to exercise
the authorities granted to them by the Texas Finance Code, the Commission
has determined to revise the general approach to regulating lending activities.
Accordingly, Subchapter G will now address only the authority of credit unions
to limit, interpret or recognize incidental authority. Credit unions may exercise
all of the authority granted by the Texas Finance Code subject only to limitations
contained in the rules.
Credit union rules traditionally have been lengthy, generally providing
far more detail and leaving less room for the exercise of judgement by credit
unions and examiners than have other financial institution lending regulations.
By proposing to remove some specific lending rules and to rely more heavily
on general safety and soundness standards, the Commission is in no way signaling
that a credit union would not need to properly underwrite loans or maintain
adequate loan documentation. Generally accepted accounting principles and
principles of safety and soundness will still require these steps to be taken.
In most circumstances, supervisory guidance and other sources can and should
be relied upon to define safe and sound practices.
Provided both management and examiners understand the proper role of rules
and guidance, and the overarching requirements for safe and sound operations
and practices, a move away from detailed rules and toward greater reliance
on guidance should provide credit unions with more flexibility without diminishing
safety and soundness. The Commission believes that rules should be reserved
for core safety and soundness requirements. Details on prudent operating practices
should be relegated to guidance. Otherwise, credit unions can find themselves
unable to respond to market innovations because they are trapped in a rigid
regulatory framework developed in accordance with conditions prevailing at
an earlier time.
This proposal represents the Commission's current best judgement about
the right balance between which provisions affecting lending should be binding
regulations and which should be guidance conveying the Commission's more detailed
view on what generally constitutes safe and sound standards under current
market conditions.
Lynette Pool-Harris, Deputy Commissioner, has determined that there will
be no fiscal implications for state or local governments as a result of enforcing
or administering the proposed new sections.
Ms. Pool-Harris has also determined that for each of the first five years
the new sections, as proposed, are in effect, the public benefit anticipated
as a result of enforcing the rules will be a greater flexibility in originating
loans provided certain safety and soundness concerns are addressed, clarifications
of confusing language, and greater readability. There will be no effect on
small businesses as a result of enforcing this section as amended. There is
no economic cost anticipated to the entities that are required to comply with
the rules as proposed, nor will there be any impact on local employment.
Written comments on the proposed new sections must be submitted within
30 days after their publication in the
Texas Register
to Lynette Pool-Harrris, Deputy Commissioner, Credit Union Department,
914 East Anderson Lane, Austin, Texas, 78752-1699.
The new sections are proposed under the provisions of the Texas
Finance Code, §124.001, which provides the Credit Union Commission with
the authority to adopt rules governing loans made to credit union members;
and under the Texas Finance Code, §15.402, which authorizes the commission
to adopt reasonable rules for administering Title 2, Chapter 15 and Title
3, Subchapter D of the Texas Finance Code.
The specific sections affected by the proposed amendments are contained
within Texas Finance Code, Chapter 124, Subchapter A through Subchapter G.
§91.701.Lending Powers.
(a)
A credit union may originate, invest in, sell, purchase,
service, or participate in loans or otherwise extend credit in accordance
with the Act, these Rules, and other applicable law.
(b)
Each credit union, before engaging in any lending activity,
shall establish written policies approved by its board of directors that establish
prudent credit underwriting and documentation standards for each specific
type of lending in which the credit union will engage. The lending policies
shall contain a general outline of the manner in which loans are made, serviced,
and collected. In addition the policies must:
(1)
Be consistent with safe and sound credit union practices;
(2)
Be appropriate to the size and financial condition
of the credit union and the nature and scope of its operations;
(3)
Be compatible with the size and expertise of the credit
union's lending staff;
(4)
Be compliant with all related laws and regulations;
(5)
Be reviewed and approved by the credit union's board
of directors at least annually;
(6)
Establish loan portfolio diversification standards
to avoid undue concentrations of risk;
(7)
Establish underwriting standards, including loan-to-value
limits, that are clear and measurable;
(8)
Establish loan administration procedures for monitoring
the condition of the loan portfolio, the adequacy of any collateral securing
the loans, and the continual existence of insurance protection upon the collateral
with loss payable clause to the credit union, and ensuring compliance with
applicable lending policies; and
(9)
State the lending authority delegated to each loan
officer or to the loan committee by the board of directors.
(c)
The underwriting standards included in the credit union's
loan policies will address, as applicable, specific procedures for determining
and documenting:
(1)
The capacity of the member to adequately service the debt
from the source(s) specified by the member.
(2)
The value of the collateral.
(3)
The overall creditworthiness of the member.
(4)
The level of equity invested in the collateral.
(5)
Loan-to-collateral value limits.
(6)
Any secondary sources of repayment.
(7)
Any additional collateral or credit enhancement (such
as guarantees or mortgage insurance).
(8)
Maximum loan maturities for each type of lending.
(9)
Repayment terms and conditions.
(d)
Except when a higher maturity date is provided for elsewhere
in this chapter, the maturity of a loan to a member may not exceed 15 years.
Open-end credit is not subject to a regulatory maturity limit. Amortization
of line of credit balances and the type and amount of security on any line
of credit shall be as determined by the contract between the credit union
and the member but the amortization scheduling on a line of credit balance
shall not exceed 15 years.
(e)
The commissioner in the exercise of discretion may grant
a waiver in writing of any of the lending requirements described in this chapter.
A decision to deny a requested waiver, however, is not appealable.
§91.702.Records for Lending Transactions.
A credit union shall maintain files containing credit and other information
adequate to demonstrate evidence of prudent business judgement in exercising
the lending powers granted under the Act, these rules, or other applicable
law. At a minimum, each credit union shall establish and maintain loan documentation
practices that ensure that the credit union can make an informed lending decision
and can assess risk on an ongoing basis; and ensure that any claims against
a member, guarantor, security holders, and collateral are legally enforceable.
§91.703.Interest.
(a)
A credit union's board of directors may delegate all or
part of its power to determine the interest rates on all lending transactions.
The board may also authorize any refund of interest on loans under the conditions
it may prescribe.
(b)
A loan may provide for variable interest rates, so long
as the factor or index governing the extent of the variation is not under
the control of the credit union and can be readily ascertained from sources
available to the public or any other index approved in writing by the commissioner
which is not available to the public.
§91.704.Real Estate Lending.
(a)
A credit union for which real estate lending comprises
more than 20% of its total outstanding loans shall monitor conditions in the
real estate market in its lending area on at least a quarterly basis to ensure
that its real estate lending policies continue to be appropriate for current
market conditions.
(b)
The credit union shall establish loan administration procedures,
including documentation, disbursement, collateral inspection, collection,
and loan review for its real estate portfolio that address:
(1)
Documentation, including:
(A)
Type and frequency of financial statements required, including
requirements for verification of information provided by the member; and
(B)
Type and frequency of collateral evaluations (appraisals
and other estimates of value).
(2)
Loan closing and disbursement.
(3)
Lien recording.
(4)
Payment processing.
(5)
Title insurance.
(6)
Escrow administration.
(7)
Property insurance.
(8)
Mortgage insurance.
(9)
Loan payoffs.
(10)
Collection and foreclosure, including:
(A)
Delinquency follow-up procedures;
(B)
Foreclosure timing;
(C)
Extensions and other forms of forbearance; and
(D)
Acceptance of deeds in lieu of foreclosure.
(11)
Claims processing (e.g., seeking recovery on
a defaulted loan covered by a government guaranty or insurance program).
(12)
Servicing and participation agreements.
(c)
Loan to Value Limitations
(1)
The board of directors shall establish their own internal
loan-to-value limits for real estate loans based on type of loan. These internal
limits, however, shall not exceed the following regulatory limits:
(A)
Raw land--Loan to value limit 60%
(B)
Interim Construction--Loan to value limit 80%
(C)
Owner-occupied--Loan to value limit 95%
(D)
Home equity--Loan to value limit 80%
(E)
Other--Loan to value limit 80%
(2)
In determining the loan to value limit, a credit
union shall include all loans secured by the same property and the recourse
obligation of any such loan sold with recourse.
(d)
Notwithstanding the general 15-year maturity limit on lending
transactions to members, the board of directors shall establish in policy
internal maximum maturities for real estate lending transactions. These maturities
should not exceed the following regulatory limits:
(1)
Improved Residential real estate loans (owner-occupied)--40
years
(2)
Improved Residential real estate loans (not to be
occupied by owner)--30 years
(3)
Interim construction loans--18 months
(4)
Manufactured Home (first lien)--20 years
(5)
Home equity loans--20 years
(6)
Home improvement loans--20 years
(7)
All other loans--15 years
(e)
Exceptions to subsections (c) and (d) are permitted for
the following:
(1)
Loans that when reduction in principal or senior liens,
or additional contribution of collateral or equity (e.g. improvements to the
real property securing the loan), the resulting loan-to-value ratio falls
into compliance with regulatory limits.
(2)
Loans guaranteed or insured by the U.S. government
or its agencies, provided that the amount of the guaranty or insurance is
at least equal to the portion of the loan that exceeds the regulatory loan-to-value
limit.
(3)
Loans backed by the full faith and credit of the state,
provided that the amount of the assurance is at least equal to the portion
of the loan that exceeds the regulatory loan-to-value limit.
(4)
Loans guaranteed or insured by the state, a municipal
or local government, or an agency thereof, provided that the amount of loan
that exceeds the regulatory loan-to-value limit, and provided that the credit
union has determined that the guarantor or insurer has the financial capacity
and willingness to perform under the terms of the guaranty or insurance agreement.
(5)
Loans that are to be sold promptly after origination,
without recourse, to a financially responsible third party.
(6)
Loans that are renewed, refinanced, or restructured
without the advancement of new funds or an increase in the line of credit
(except for reasonable closing costs) where consistent with safe and sound
credit union practices and part of a clearly defined and well-documented program
to achieve orderly liquidation of the debt, reduce risk of loss, or maximize
recovery on the loan.
(f)
Exception loans granted in compliance with subsection (e)
of this section shall be identified in the credit union's records and reported
at least quarterly to the board of directors.
§91.705.Home Improvement Loans.
In addition to the requirements of this chapter, all loans in which
the proceeds are used to construct new improvements or renovate existing improvements
on a homestead property must also comply with the requirements of Section
50(a)(5), Article XVI, Texas Constitution.
§91.706.Home Equity Loans.
For any loan secured by an encumbrance against the equity in a homestead
property, the terms and conditions set forth in this chapter and in Section
50, Article XVI, Texas Constitution will apply. If there is an irreconcilable
conflict between a constitutional provision and the provision of this section,
the constitutional requirement shall prevail.
§91.707.Reverse Mortgages.
A credit union may offer reverse mortgages to its members under the
terms and conditions set forth in Section 50, Article XVI, Texas Constitution
and other applicable law. In the event of an irreconcilable conflict between
any specific requirement contained in this section and a constitutional provision,
the constitutional requirement shall prevail.
§91.708.Real Estate Appraisals.
For real estate loans in which the transaction value exceeds $100,000
or in the case of a member business loan exceeding $50,000, a professional
appraisal report by a state certified or licensed appraiser, as required by
the Financial Institutions Reform, Recovery and Enforcement Act of 1989, is
necessary. Reappraisals may be required by the commissioner on real estate
or other property or interests therein securing loans, at the expense of the
credit union, when the commissioner has reason to believe the value of the
security is overstated for any reason. The appraisal report shall be in writing
and conform to generally accepted appraisal standards as evidenced by the
Uniform Standards of Professional Appraisal Practice promulgated by the Appraisal
Standards Board of the Appraisal Foundation, 1029 Vermont Avenue, NW, Washington,
D.C. 20005. In the case of renewal of a loan where additional funds are advanced
by the credit union, a written certification of current value by the original
appraiser or an acceptable substitute shall satisfy this section.
§91.709.Member Business Loans.
(a)
Definition. A member business loan includes any loan, line
of credit, or letter of credit, the proceeds of which will be used for a commercial,
corporate, business investment property or venture, or agricultural purpose,
except that the following shall not be considered a member business loan for
the purposes of this rule:
(1)
A loan secured by a lien on a 1 to 4 family dwelling that
is the member's primary residence;
(2)
A loan fully secured by shares in the credit union
making the extension of credit or deposits in other financial institutions;
(3)
Loan(s) otherwise meeting the definition of a member
business loan made to a member or associated member that, in the aggregate,
is less than $50,000; or
(4)
A loan where a federal or state agency or one of its
political subdivisions fully insures repayment, or fully guarantees repayment,
or provides an advance commitment to purchase in full.
(b)
A credit union that engages in this type of lending shall
adopt specific member business loan policies and review them at least annually.
The policies, at a minimum, shall address all of the following areas:
(1)
Types of business loans to be made.
(2)
The maximum amount of credit union assets, relative
to credit union equity, that will be invested in member business loans.
(3)
The maximum amount of credit union assets, relative
to credit union equity, that will be invested in a given category or type
of member business loan.
(4)
The maximum amount of credit union assets, relative
to credit union equity, that will be loaned to any one member or group of
associated members, subject to subsection (c) of this section.
(5)
The qualifications and experience requirements for
personnel involved in making and servicing business loans.
(6)
Analysis of the member's initial and ongoing financial
capacity to repay the debt.
(7)
Documentation supporting each request for an extension
of credit or an increase in an existing loan or line of credit, which shall
address all of the following:
(A)
A balance sheet;
(B)
An income statement;
(C)
A cash flow analysis;
(D)
Tax returns;
(E)
Leveraging; and
(F)
Receipt and the periodic updating of financial statements,
tax returns, and other documentation.
(8)
Collateral requirements which include all of
the following:
(A)
Loan-to-value (LTV) ratios;
(B)
Appraisal, title search, and insurance requirements; and
(C)
Steps to be taken to secure various types of collateral.
(9)
Identification, by position, of the officials
and senior management employees who are prohibited from receiving member business
loans.
(c)
The aggregate amount of outstanding member business loans
to any one member or group of associated members shall not be more than 15%
of the credit union's equity (less the Allowance for Loan Losses account)
or $75,000.00, whichever is higher. If any portion of a member business loan
is secured by shares in the credit union or deposits in another financial
institution, or is fully or partially insured or guaranteed by, or subject
to an advance commitment to purchase by, any agency of the Federal government
or of a state or any of its political subdivisions, such portion shall not
be calculated in determining the 15% limit.
(d)
For the purposes of this section, "associated member" means
any member with a common ownership, investment, or other pecuniary interest
in the business or agricultural endeavor for which the business loan is being
made.
§91.710.Overdraft Protection.
A credit union which permits withdrawal of funds from an account payable
to third parties may offer in connection with such accounts overdraft protection
to members in the form, on the terms and in amounts consistent with the credit
union's policies. For purposes of financial reporting, funds advanced to or
for the benefit of a member in connection with an overdraft condition shall
be considered as a loan to the member.
§91.711.Loan Participations.
A credit union may participate in loans jointly with other credit unions,
credit union organizations or other financial organizations pursuant to written
policies established by the board of directors. Before participating in a
loan transaction, each credit union shall perform its own due diligence of
the transaction.
§91.712.Plastic Cards.
(a)
Definitions. The following words and terms, when used in
this chapter, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Card Activation--process of sending new plastic cards from
the issuer to the legitimate cardholder in an "inactive" mode. Once the legitimate
cardholder receives the card, they must call the issuer/processor and go through
a member verification process before the card is "activated".
(2)
Card Security Code--a set of unique numbers encoded
on the magnetic strip of plastic cards, such as Card Verification Value from
Visa and Card Validation Code from MasterCard, used to combat counterfeit
fraud.
(3)
Neural Network--a computer program that monitors usage
patterns of an account and typical fraud patterns. The program analyzes activity
to determine fraud risk scores to detect potentially fraudulent activity.
Strategies are then used to determine actions to mitigate frauds. Human intervention
occurs to validate if the activity is actually fraudulent.
(4)
Plastic Cards--includes credit cards, such as Visa
and MasterCard; debit cards, automated teller machine (ATM) or specific network
cards; and predetermined stored value and smart cards with micro-processor
chips.
(b)
A credit union may issue credit cards in accordance with
the credit union's written policies, which shall include at a minimum:
(1)
Credit policies to set individual limits for credit card
accounts:
(2)
A process for reviewing each member's payment and/or
credit history periodically for the purpose of determining risk; and
(3)
The credit underwriting standards for each type of
card program offered.
(c)
Program Review
(1)
A credit union's board shall review, on semiannual basis,
its plastic card program with particular emphasis on:
(A)
Losses caused by delinquency, theft, and fraud;
(B)
Loss prevention measures and their adequacy; and
(C)
The availability and use of appropriate loss prevention
measures including card activation, card security codes, neural networks,
and other evolving technology.
(2)
The review shall be documented in writing, with
any changes to the plastic card program being entered into the minutes of
the board meeting.
(d)
At least annually, the credit union's board shall cause
to be performed an assessment of earnings and the capital position to ensure
that the credit union can absorb potential related plastic card program losses.
This review shall include a cost benefit analysis of supplemental insurance
coverage for theft and fraud related losses. Establishment of a segregated
contingency reserve may be utilized to further mitigate the credit union's
risk exposure for losses resulting from its plastic card program.
§91.713.Indirect Financing of Motor Vehicles or Other Chattels.
(a)
Credit unions may implement a program of indirect financing
of motor vehicles and other chattels. For the purposes of this chapter, a
retail installment contract purchased under this authority may be treated
as a loan on the books and records of the credit union and is subject to the
same limitations and restrictions imposed upon loan transactions. As with
other lending, the credit union is responsible for making the final underwriting.
Although the seller may initially determine whether the prospective buyer
is a member or eligible for membership in the credit union, responsibility
for membership eligibility decisions must be the credit union's first consideration
before beginning the contract purchase approval process.
(b)
A retail installment contract may provide for a rate or
amount of time price differential that does not exceed the rate or amount
authorized by Chapter 124 of the Texas Finance Code.
(c)
The board of directors shall establish, implement, and
maintain prudent and reasonable written policies that specify guidelines and
criteria to be used in purchasing contracts consistent with safe and sound
credit union practices.
§91.714.Leasing.
(a)
Definitions. For the purposes of this section:
(1)
The term net lease means a lease under which the credit
union will not, directly or indirectly, provide or be obligated to provide
for:
(A)
the servicing, repair or maintenance of leased property
during the lease term;
(B)
the purchasing of parts and accessories for the leased
property, except that improvements and additions to the leased property may
be leased to the lessee upon its request in accordance with the full-payout
requirements of subsection (c)(2)(A) of this section;
(C)
the loan of replacement or substitute property while the
leased property is being serviced;
(D)
the purchasing of insurance for the lessee, except where
the lessee has failed to discharge a contractual obligation to purchase or
maintain insurance; or
(E)
the renewal of any license, registration, or filing for
the property unless such action by the credit union is necessary to protect
its interest as an owner or financier of the property.
(2)
The term full-payout lease means a lease transaction
in which any unguaranteed portion of the estimated residual value relied on
by the credit union to yield the return of its full investment in the lease
property, plus the estimated cost of financing the property over the term
of the lease, does not exceed 25% of the original cost of the property to
the lessor. In general, a lease will qualify as a full payout lease if the
scheduled payments provide at least 75% of the principal and interest payments
that a lessor would receive if the finance lease were structured as a market-rate
loan.
(3)
The term realization of investment means that a credit
union that enters into a lease financing transaction must reasonably expect
to realize the return of its full investment in the leased property, plus
the estimated cost of financing the property over the term of the lease from:
(A)
Rentals; and
(B)
The estimated residual value of the property at the expiration
of the term of the lease.
(b)
Permissible Activities. Subject to the limitations of this
section, a credit union may engage in leasing activities. These activities
include becoming the legal or beneficial owner of tangible personal property
or real property for the purpose of leasing such property, obtaining an assignment
of a lessor's interest in a lease of such property, and incurring obligations
incidental to its position as the legal or beneficial owner and lessor of
the leased property.
(c)
Finance Leasing
(1)
A credit union may conduct leasing activities that are
functional equivalent of loans made under those leases. Such financing leases
are subject to the same restrictions that would be applicable to a loan.
(2)
To qualify as the functional equivalent of a loan:
(A)
The lease must be a net, full-payout lease representing
a non-cancelable obligation of the lessee, notwithstanding the possible early
termination of the lease;
(B)
The portion of the estimated residual value of the property
relied upon by the lessor to satisfy the requirements of a full-payout lease
must be reasonable in light of the nature of the leased property and all relevant
circumstances so that realization of the lessor's full investment plus the
cost of financing the property depends primarily on the creditworthiness of
the lessee, and not on the residual market value of the leased property; and
(C)
At the termination of the financing lease, either by expiration
or default, property acquired must be liquidated or released on a net basis
as soon as practicable. Any property held in anticipation of releasing must
be reevaluated and recorded at the lower of fair market value or the value
carried on the credit union's books.
(d)
General Leasing. A credit union may invest in tangible
personal property, including vehicles, manufactured homes, equipment, or furniture,
for the purpose of leasing that property. In contrast to financing leases,
lease investments made under this authority need not be the functional equivalent
of loans.
(e)
Leasing Salvage Powers. If a credit union believes that
there has been an unanticipated change in conditions that threatens its financial
position by significantly increasing its exposure to loss, it may:
(1)
As the owner and lessor, take reasonable and appropriate
action to salvage or protect the value of the property or its interest arising
under the lease;
(2)
As the assignee of a lessor's interest in a lease,
become the owner and lessor of the leased property pursuant to its contractual
right, or take any reasonable and appropriate action to salvage or protect
the value of the property or its interest arising under the lease; or
(3)
Include any provision in a lease, or make any additional
agreements, to protect its financial position or investment in the circumstances
set forth in subsections (e)(1) and (e)(2) of this section.
§91.715.Exceptions to the General Lending Policies.
Credit unions may provide for the consideration of loan requests from
creditworthy members whose credit needs do not fit within the credit union's
general lending policies. A credit union may provide for prudently underwritten
exceptions to its lending policies. However, the Board is responsible for
establishing standards for the review and approval of exception loans. Each
credit union should establish an appropriate internal process for the review
and approval of loans that do not conform to its own internal policy standards.
The approval of any such loan should be supported by a written justification
that clearly sets forth all of the relevant credit factors that support the
underwriting decision. The justification and approval documents for such loans
should be maintained as a part of the permanent loan file. Each credit union
should monitor compliance with its lending policies and individually report
exception loans of a significant size to its board of directors.
§91.716.Prohibited Fees.
A credit union shall not make any loan or extend any credit if, either
directly or indirectly, any commission, fee, or other compensation from any
person or entity other than the credit union is to be received by the credit
union's directors, committee members, senior management employees, loan officers,
or any immediate family members of such individuals, in connection with underwriting,
insuring, servicing, or collecting the loan or extension of credit.
§91.717.More Stringent Restrictions.
The Commissioner may impose more stringent restrictions on a credit
union's loans if the Commissioner determines that such restrictions are necessary
to protect the safety and soundness of the credit union.
§91.718.Charging Off or Setting Up Reserves.
(a)
The commissioner, after a determination of value, may order
that assets in the aggregate, to the extent that such assets have depreciated
in value, or to the extent the value of such assets, including loans, are
overstated in value for any reason, be charged off, or that a special reserve
or reserves equal to such depreciation or overstated value be established.
(b)
A credit union's financial statements shall provide for
full and fair disclosure of all assets, liabilities, and members' equity,
including such valuation allowance accounts as may be necessary to present
fairly the financial position; and all income and expenses necessary to present
fairly the results of operations for the period concerned.
(c)
As a minimum, adjustments to the valuation allowance for
loan losses shall be made prior to the distribution or posting of any dividends
to the accounts of members so that the valuation allowance established fairly
presents the value of loans and probable losses for all categories.
§91.719.Loans to Officials and Employees.
(a)
The rates, terms, conditions, and availability of any loan
or other extension of credit made to, or endorsed or guaranteed by, a director,
employee, member of the credit committee or an immediate family member of
any such individual shall not be more favorable than the rates, terms, conditions,
and availability of comparable loans or credit to other credit union members.
(b)
Before making a loan, extending credit, or becoming contractually
liable to make a loan or extend credit to a director, employee, member of
the credit committee, or an immediate family member of such individual, the
board of directors must approve the transaction if the loan or the extension
of credit or aggregate of outstanding loans and extensions of credit to any
one person, the person's business interests, and the members of the person's
immediate family is greater than 15% of the credit union's net capital. A
loan fully secured by shares in the credit union or deposits in other financial
institutions shall not be subject to, or included in the aggregate amounts
included in this section.
(c)
For purposed of this section, the term immediate family
member includes spouse or other family member living in the same household.
(d)
The aggregate of all outstanding loans or extensions of
credit made to, or endorsed or guaranteed by all directors, credit committee
members, senior executive staff, and immediate family members of all such
individuals shall not exceed 20% of the credit union's total assets. The requirements
described in this subsection shall apply unless waived in writing by the commissioner
for good cause shown.
(e)
At least semiannually, the president shall make a report
to the board of directors on the outstanding indebtedness of all directors,
credit committee members, senior executive staff, and immediate family members
of such individuals. The report required by this section shall include the
following information:
(1)
The amount of each indebtedness; and
(2)
A description of the terms and conditions (including
the interest rate, the original amount and date, maturity date, payment terms,
security, if any, and any other unusual term or condition) of each extension
of credit.
(f)
At the discretion of the Board, the reporting requirement
of subsection (e) of this section may be waived if the aggregate of outstanding
loans and extensions of credit to any one person, the person's business interests,
and the members of the person's immediate family is less than $25,000. Each
report must ordinarily be retained at the credit union for a period of three
years and shall not be filed with the Department unless specifically requested.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
January 22, 1999.
TRD-9900465
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 7, 1999
For further information, please call: (512) 837-9236
7 TAC §91.801
The Texas Credit Union Commission proposes amendments to
§91.801 concerning investment in a credit union service organization
(CUSO). The amendments are being proposed for the purposes of clarifying existing
requirements and adding new requirements to address potential safety and soundness
concerns. One amendment to Subsection (a) confirms the requirement under Subsection
(c)(2) that a CUSO must be a separate legal entity from the credit union and
that the CUSO must be adequately capitalized to reduce loss risk exposure
to the investing credit union(s). The second amendment to Subsection (a) simplifies
the notification requirement. An amendment to Subsection (c) adds a registered
limited liability partnership to the forms of organization of a CUSO that
a credit union may invest in and loan money to. Another amendment requires
a credit union that is considering investment in a CUSO to obtain a legal
determination that the CUSO's organizational structure will limit the credit
union's potential loss exposure. The Commission is also proposing to add two
new subsections to the rule. The first prohibits senior credit union staff
from receiving directly or indirectly any salary, commission, investment income
or other income from a CUSO affiliated with the credit union due to potential
conflict of interest. The second new subsection authorizes the Commissioner
to charge a CUSO a supplemental examination fee should it be necessary for
Credit Union Department examiners to inspect the CUSO's books and records.
Lynette Pool-Harris, Deputy Commissioner, has determined that for the first
five-year period the amended rule is in effect, there will be no fiscal implications
for state or local government as a result of enforcing or administering the
rule.
Ms. Pool-Harris has also determined that for each year of the first five
years the proposed amended rule is in effect, the public benefit anticipated
will be greater protection of state chartered credit unions from business
and other risks associated with an investment in a CUSO. There will be no
effect on small businesses as a result of adopting the amendments, nor will
there be an impact on local government. There may be some economic cost borne
by entities that will be required to comply with the amended rule because
of the requirement to obtain a legal opinion regarding the risk posed by a
CUSO's organizational structure, but the potential cost is not considered
significant.
Written comments on the proposed rule amendments must be submitted within
30 days after its publication in the
Texas Register
to Lynette Pool-Harris, Deputy Commissioner, Credit Union Department,
914 East Anderson Lane, Austin, Texas, 78752-1699.
The amendments are proposed under the provisions of Texas Finance
Code, Section 124.351(a), which allows the Credit Union Commission to adopt
rules pertaining to authorized investments; and under the Texas Finance Code,
Section 15.402, which authorizes the commission to adopt reasonable rules
for administering Title 2, Chapter 15 and Title 3, Subtitle D of the Texas
Finance Code.
The specific sections affected by the proposed rule amendments are Texas
Finance Code, Sections 124.351 and 124.352 pertaining to permitted investments.
§91.801.Investments in CUSOs.
(a)
A credit union by itself, or with other parties, may
organize,
invest in or make loans to a CUSO
which shall be adequately
capitalized and which shall be structured and operated as an entity separate
and distinct from the credit union. A credit union shall provide written notice
to the commissioner
[
(b)
An investment in any one CUSO shall not exceed the lesser
of 5.0% of the credit union's total assets or the total amount of its reserves
and undivided earnings. Loans to any one CUSO shall not exceed the aggregate
limit for loans to one member specified by the
Texas Finance Code §124.003
[
(c)
No credit union may invest in or make loans to a CUSO:
(1)
(No change.)
(2)
unless the organization is structured as a corporation,
limited liability company,
registered limited liability partnership,
or limited partnership
and the credit union has obtained a written
legal opinion that the CUSO is established in a manner that will limit the
credit union's potential exposure to not more than the loss of funds invested
in or loaned to such CUSO
;
(3)-(4)
(No change.)
(d)
(No change.)
(e)
Senior management staff of a credit union
may receive salary, commission, investment income, or other income or compensation
from any CUSO affiliated with their credit union provided the individual provides
fair and full disclosure initially and annually thereafter to the boards of
participating credit unions.
(f)
If a CUSO is requested by the commissioner
to make its books and records available for inspection and examination, the
CUSO shall pay a supplemental examination fee as prescribed in §97.113
of this title (relating to operating fees). The commissioner may waive the
supplemental examination fee or reduce the fee as he deems appropriate.
(g)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
January 22, 1999.
TRD-9900468
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 7, 1999
For further information, please call: (512) 837-9236
7 TAC §91.4001, §91.4002
The Texas Credit Union Commission proposes new Subchapter
M, Sections §91.4001 and §91.4002 concerning electronic operations
by or involving a credit union.
Under the proposed new sections, a credit union may engage in prudent innovation
through the use of emerging technology. The proposal permits credit unions
to use, or to participate with others to use, electronic means or facilities
to perform any function or provide any product or service as part of an authorized
activity. The new sections also require a credit union to notify the Department
30 days before it establishes a transactional web site. Credit unions that
present supervisory or compliance concerns may be subject to additional procedural
requirements.
Lynette Pool-Harris, Deputy Commissioner, has determined that for the first
five-year period the new rules are in effect, there will be no fiscal implications
for state or local government as a result of enforcing or administering the
rules.
Ms. Pool-Harris has also determined that for each year of the first five
years the proposed rules are in effect, the public benefit anticipated will
be to provide credit unions with a greater ability to serve as financial intermediaries
and to permit credit unions to utilize fully their capacities and by-products
generated in providing financial services to its members. There will be no
effect on small businesses as a result of adopting these sections. There is
no anticipated economic cost to entities that will be required to comply with
these new sections, nor will there be an impact on local employment.
Written comments on the proposed rules must be submitted within 30 days
after its publication in the
Texas Register
to Lynette Pool-Harris, Deputy Commissioner, Credit Union Department, 914
East Anderson Lane, Austin, Texas, 78752-1699.
The new sections are proposed under the provisions of Texas Finance
Code, Section 15.402, which authorizes the commission to adopt reasonable
rules for administering Title 2, Chapter 15 and Title 3, Subtitle D of the
Texas Finance Code.
The specific section affected by the proposed rules is Texas Finance Code,
Section 123.001 regarding general powers.
§91.4001.Authority to Conduct Electronic Operations.
(a)
A credit union may use, or participate with others to use,
electronic means or facilities to perform any function or provide any product
or service as part of an authorized activity. Electronic means or facilities
include, but are not limited to, automated teller machines, automated loan
machines, personal computers, the Internet, the World Wide Web, telephones,
and other similar electronic devices.
(b)
To optimize the use of its resources, a credit union may
market and sell, or participate with others to market and sell, electronic
capacities and by-products to others, provided the credit union acquired or
developed these capacities and by-products in good faith as part of providing
financial services to its members.
(c)
If a credit union uses electronic means and facilities
authorized by this rule, the credit union's board of directors must require
staff to:
(1)
Identify, assess, and mitigate potential risks and establish
prudent internal controls; and
(2)
Implement security measures designed to ensure secure
operations. Such measures must be adequate to:
(A)
Prevent unauthorized access to credit union records and
credit union members' records;
(B)
Prevent financial fraud through the use of electronic means
or facilities; and
(C)
Comply with applicable security device requirements of
§91.401(b) pertaining to user safety at unmanned teller machines.
(d)
All credit unions engaging in such electronic activities
must comply with all applicable requirements, including addressing safety
and soundness concerns and ensuring compliance with applicable state and federal
laws and regulations.
§91.4002.Notice Requirement.
(a)
A credit union must file a written notice with the commissioner
at least 30 days before it establishes a transactional web site. The notice
must:
(1)
Include an address for and a description of the transactional
features of the web site;
(2)
Indicate the date the transactional web site will
become operational; and
(3)
List a contact person familiar with the deployment,
operation, and security of the transactional web site.
(b)
For the purposes of this chapter a transactional web site
is an Internet site that enables users to conduct financial transactions such
as accessing an account, obtaining an account balance, transferring funds,
processing bill payments, opening an account, applying for or obtaining a
loan, or purchasing other authorized products or services.
(c)
If a credit union has established a transactional web site
before the effective date of this rule, it must file a notice describing its
activity by June 1, 1999.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
January 22, 1999.
TRD-9900466
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 7, 1999
For further information, please call: (512) 837-9236
Subchapter B. Fees
Subchapter G. Loans
Subchapter G. Lending Powers
Subchapter H. Investments
only after giving
] at least 15 days
prior
[
advance written notice to the commissioner of its intention
to make
]
to making
such investment or loans. The credit union
shall provide any additional information reasonably requested by the commissioner.
Act §7.02
] or a rule adopted under that section. The
total aggregate amount of all investments in all CUSOs by any one credit union
shall not exceed 10% of the total assets of the credit union, unless the credit
union receives the prior written approval of the commissioner.
(e)
] The requirements of this section
apply only to investments or loans made after the effective date of this section.
Subchapter M. Electronic Operations
Chapter 97.
Commissions Policies and Administrative Rules