12 USC 1835 – Insured depository institution capital requirements for transfers of small business obligations
(a) Accounting principles
The accounting principles applicable to the transfer of a small business loan or a lease of personal property with recourse contained in reports or statements required to be filed with Federal banking agencies by a qualified insured depository institution shall be consistent with generally accepted accounting principles.
(b) Capital and reserve requirements
Terms Used In 12 USC 1835
- appropriate Federal banking agency: means &mdash. See 12 USC 1813
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- depository institution: means any bank or savings association. See 12 USC 1813
- Federal banking agency: means the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, or the Federal Deposit Insurance Corporation. See 12 USC 1813
- insured depository institution: includes any uninsured branch or agency of a foreign bank or a commercial lending company owned or controlled by a foreign bank for purposes of section 1818 of this title. See 12 USC 1813
- Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- Personal property: All property that is not real property.
- Recourse: An arrangement in which a bank retains, in form or in substance, any credit risk directly or indirectly associated with an asset it has sold (in accordance with generally accepted accounting principles) that exceeds a pro rata share of the bank's claim on the asset. If a bank has no claim on an asset it has sold, then the retention of any credit risk is recourse. Source: FDIC
With respect to the transfer of a small business loan or lease of personal property with recourse that is a sale under generally accepted accounting principles, each qualified insured depository institution shall—
(1) establish and maintain a reserve equal to an amount sufficient to meet the reasonable estimated liability of the institution under the recourse arrangement; and
(2) include, for purposes of applicable capital standards and other capital measures, only the amount of the retained recourse in the risk-weighted assets of the institution.
(c) Qualified institutions criteria
An insured depository institution is a qualified insured depository institution for purposes of this section if, without regard to the accounting principles or capital requirements referred to in subsections (a) and (b), the institution is—
(1) well capitalized; or
(2) with the approval, by regulation or order, of the appropriate Federal banking agency, adequately capitalized.
(d) Aggregate amount of recourse
The total outstanding amount of recourse retained by a qualified insured depository institution with respect to transfers of small business loans and leases of personal property under subsections (a) and (b) shall not exceed—
(1) 15 percent of the risk-based capital of the institution; or
(2) such greater amount, as established by the appropriate Federal banking agency by regulation or order.
(e) Institutions that cease to be qualified or exceed aggregate limits
If an insured depository institution ceases to be a qualified insured depository institution or exceeds the limits under subsection (d), this section shall remain applicable to any transfers of small business loans or leases of personal property that occurred during the time that the institution was qualified and did not exceed such limit.
(f) Prompt corrective action not affected
The capital of an insured depository institution shall be computed without regard to this section in determining whether the institution is adequately capitalized, undercapitalized, significantly undercapitalized, or critically undercapitalized under section 1831o of this title.
(g) Regulations required
Not later than 180 days after September 23, 1994, each appropriate Federal banking agency shall promulgate final regulations implementing this section.
(h) Alternative system permitted
(1) In general
At the discretion of the appropriate Federal banking agency, this section shall not apply if the regulations of the agency provide that the aggregate amount of capital and reserves required with respect to the transfer of small business loans and leases of personal property with recourse does not exceed the aggregate amount of capital and reserves that would be required under subsection (b).
(2) Existing transactions not affected
Notwithstanding paragraph (1), this section shall remain in effect with respect to transfers of small business loans and leases of personal property with recourse by qualified insured depository institutions occurring before the effective date of regulations referred to in paragraph (1).
(i) Definitions
For purposes of this section—
(1) the term “adequately capitalized” has the same meaning as in section 1831o(b) of this title;
(2) the term “appropriate Federal banking agency” has the same meaning as in section 1813 of this title;
(3) the term “capital standards” has the same meaning as in section 1831o(c) of this title;
(4) the term “Federal banking agencies” has the same meaning as in section 1813 of this title;
(5) the term “insured depository institution” has the same meaning as in section 1813 of this title;
(6) the term “other capital measures” has the meaning as in section 1831o(c) of this title;
(7) the term “recourse” has the meaning given to such term under generally accepted accounting principles;
(8) the term “small business” means a business that meets the criteria for a small business concern established by the Small Business Administration under section 632(a) of title 15; and
(9) the term “well capitalized” has the same meaning as in section 1831o(b) of this title.