skip to main content

S. 2017 (107th): Indian Financing Amendments Act of 2002

The text of the bill below is as of Sep 17, 2002 (Passed the Senate).


S 2017 ES

107th CONGRESS

2d Session

S. 2017


AN ACT

To amend the Indian Financing Act of 1974 to improve the effectiveness of the Indian loan guarantee and insurance program.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ‘Indian Financing Amendments Act of 2002’.

SEC. 2. FINDINGS AND PURPOSE.

    (a) FINDINGS- Congress finds that--

      (1) the Indian Financing Act of 1974 (25 U.S.C. 1451 et seq.) was intended to provide Native American borrowers with access to commercial sources of capital that otherwise would not be available through the guarantee or insurance of loans by the Secretary of the Interior;

      (2) although the Secretary of the Interior has made loan guarantees and insurance available, use of those guarantees and that insurance by lenders to benefit Native American business borrowers has been limited;

      (3) 27 years after the date of enactment of the Indian Financing Act of 1974 (25 U.S.C. 1451 et seq.), the promotion and development of Native American-owned business remains an essential foundation for growth of economic and social stability of Native Americans;

      (4) use by commercial lenders of the available loan insurance and guarantees may be limited by liquidity and other capital market-driven concerns; and

      (5) it is in the best interest of the insured and guaranteed loan program of the Department of the Interior--

        (A) to encourage the orderly development and expansion of a secondary market for loans guaranteed or insured by the Secretary of the Interior; and

        (B) to expand the number of lenders originating loans under the Indian Financing Act of 1974 (25 U.S.C. 1451 et seq.).

    (b) PURPOSE- The purpose of this Act is to reform and clarify the Indian Financing Act of 1974 (25 U.S.C. 1451 et seq.) in order to--

      (1) stimulate the use by lenders of secondary market investors for loans guaranteed or insured under a program administered by the Secretary of the Interior;

      (2) preserve the authority of the Secretary to administer the program and regulate lenders;

      (3) clarify that a good faith investor in loans insured or guaranteed by the Secretary will receive appropriate payments;

      (4) provide for the appointment by the Secretary of a qualified fiscal transfer agent to establish and administer a system for the orderly transfer of those loans; and

      (5)(A) authorize the Secretary to promulgate regulations to encourage and expand a secondary market program for loans guaranteed or insured by the Secretary; and

      (B) allow the pooling of those loans as the secondary market develops.

SEC. 3. AMENDMENTS TO INDIAN FINANCING ACT.

    (a) LIMITATION ON LOAN AMOUNTS WITHOUT PRIOR APPROVAL- Section 204 of the Indian Financing Act of 1974 (25 U.S.C. 1484) is amended in the last sentence by striking ‘$100,000’ and inserting ‘$250,000’.

    (b) SALE OR ASSIGNMENT OF LOANS AND UNDERLYING SECURITY- Section 205 of the Indian Financing Act of 1974 (25 U.S.C. 1485) is amended--

      (1) by striking ‘Any loan guaranteed’ and inserting the following:

    ‘(a) IN GENERAL- Any loan guaranteed or insured’; and

      (2) by adding at the end the following:

    ‘(b) INITIAL TRANSFERS-

      ‘(1) IN GENERAL- The lender of a loan guaranteed or insured under this title may transfer to any individual or legal entity--

        ‘(A) all rights and obligations of the lender in the loan or in the unguaranteed or uninsured portion of the loan; and

        ‘(B) any security given for the loan.

      ‘(2) ADDITIONAL REQUIREMENTS- With respect to a transfer described in paragraph (1)--

        ‘(A) the transfer shall be consistent with such regulations as the Secretary shall promulgate under subsection (i); and

        ‘(B) the lender shall give notice of the transfer to the Secretary.

      ‘(3) RESPONSIBILITIES OF TRANSFEREE- On any transfer under paragraph (1), the transferee shall--

        ‘(A) be deemed to be the lender for the purpose of this title;

        ‘(B) become the secured party of record; and

        ‘(C) be responsible for--

          ‘(i) performing the duties of the lender; and

          ‘(ii) servicing the loan in accordance with the terms of the guarantee by the Secretary of the loan.

    ‘(c) SECONDARY TRANSFERS-

      ‘(1) IN GENERAL- Any transferee under subsection (b) of a loan guaranteed or insured under this title may transfer to any individual or legal entity--

        ‘(A) all rights and obligations of the transferee in the loan or in the unguaranteed or uninsured portion of the loan; and

        ‘(B) any security given for the loan.

      ‘(2) ADDITIONAL REQUIREMENTS- With respect to a transfer described in paragraph (1)--

        ‘(A) the transfer shall be consistent with such regulations as the Secretary shall promulgate under subsection (i); and

        ‘(B) the transferor shall give notice of the transfer to the Secretary.

      ‘(3) ACKNOWLEDGMENT BY SECRETARY- On receipt of a notice of a transfer under paragraph (2)(B), the Secretary shall issue to the transferee an acknowledgement by the Secretary of--

        ‘(A) the transfer; and

        ‘(B) the interest of the transferee in the guaranteed or insured portion of the loan.

      ‘(4) RESPONSIBILITIES OF LENDER- Notwithstanding any transfer permitted by this subsection, the lender shall--

        ‘(A) remain obligated on the guarantee agreement or insurance agreement between the lender and the Secretary;

        ‘(B) continue to be responsible for servicing the loan in a manner consistent with that guarantee agreement or insurance agreement; and

        ‘(C) remain the secured creditor of record.

    ‘(d) FULL FAITH AND CREDIT-

      ‘(1) IN GENERAL- The full faith and credit of the United States is pledged to the payment of all loan guarantees and loan insurance made under this title after the date of enactment of this subsection.

      ‘(2) VALIDITY-

        ‘(A) IN GENERAL- Except as provided in subparagraph (B), the validity of a guarantee or insurance of a loan under this title shall be incontestable if the obligations of the guarantee or insurance held by a transferee have been acknowledged under subsection (c)(3).

        ‘(B) EXCEPTION FOR FRAUD OR MISREPRESENTATION- Subparagraph (A) shall not apply in a case in which a transferee has actual knowledge of fraud or misrepresentation, or participates in or condones fraud or misrepresentation, in connection with a loan.

    ‘(e) DAMAGES- Notwithstanding section 3302 of title 31, United States Code, the Secretary may recover from a lender of a loan under this title any damages suffered by the Secretary as a result of a material breach of the obligations of the lender with respect to a guarantee or insurance by the Secretary of the loan.

    ‘(f) FEES- The Secretary may collect a fee for any loan or guaranteed or insured portion of a loan that is transferred in accordance with this section.

    ‘(g) CENTRAL REGISTRATION OF LOANS- On promulgation of final regulations under subsection (i), the Secretary shall--

      ‘(1) provide for a central registration of all guaranteed or insured loans transferred under this section; and

      ‘(2) enter into 1 or more contracts with a fiscal transfer agent--

        ‘(A) to act as the designee of the Secretary under this section; and

        ‘(B) to carry out on behalf of the Secretary the central registration and fiscal transfer agent functions, and issuance of acknowledgements, under this section.

    ‘(h) POOLING OF LOANS-

      ‘(1) IN GENERAL- Nothing in this title prohibits the pooling of whole loans or interests in loans transferred under this section.

      ‘(2) REGULATIONS- In promulgating regulations under subsection (i), the Secretary may include such regulations to effect orderly and efficient pooling procedures as the Secretary determines to be necessary.

    ‘(i) REGULATIONS- Not later than 180 days after the date of enactment of this subsection, the Secretary shall develop such procedures and promulgate such regulations as are necessary to facilitate, administer, and promote transfers of loans and guaranteed and insured portions of loans under this section.’.

Passed the Senate September 17, 2002.

Attest:

Secretary.

107th CONGRESS

2d Session

S. 2017

AN ACT

To amend the Indian Financing Act of 1974 to improve the effectiveness of the Indian loan guarantee and insurance program.