120.1425 Grounds for formal enforcement actions - Intermediaries participating in the Microloan Program.§ 120.1425 Grounds for formal enforcement actions - Intermediaries participating in the Microloan Program.
(a) Agreement. By participating in the SBA Microloan Program, Intermediaries automatically agree to the terms, conditions, and remedies in this part as if fully set forth in their participation agreement and all other agreements jointly executed by the Intermediary and SBA.
(b) Scope. SBA may undertake one or more of the formal enforcement actions listed in § 120.1540, or as otherwise authorized by law, if SBA determines that any of the grounds listed in paragraph (c) of this section exist.
(c) Grounds in general. For any Intermediary, grounds that may trigger enforcement action against the Intermediary (regardless of its Risk Rating) include:
(1) Failure to comply materially with any requirement imposed by Loan Program Requirements;
(2) Failure to meet any one of the following performance standards:
(i) Coverage of the service territory assigned by SBA, including honoring SBA's determined boundaries of neighboring intermediaries;
(ii) Fulfill reporting requirements;
(iii) Manage program funds and matching funds in a satisfactory and financially sound manner;
(iv) Communicate and file reports within six months after beginning participation in program;
(v) Maintain a currency rate of 85% or more for the Intermediary's SBA Microloan portfolio (that is, loans that are no more than 30 days late in scheduled payments);
(vi) Maintain a default rate in the Intermediary's Microloan portfolio of 15% or less of the cumulative dollars loaned under the program;
(vii) Maintain a staff trained in Microloan Program issues and Loan Program Requirements;
(viii) Maintain the financial ability to sustain the Intermediary's operations (including, but not limited to, adequate capital), as determined by SBA;
(ix) Satisfactorily provide in-house technical assistance to Microloan borrowers and prospective Microloan borrowers; or
(x) Close and fund the required number of microloans per year under § 120.716;
(3) Failure within the time period specified to correct an underwriting, closing, disbursing, servicing, liquidation, litigation, or reporting deficiency, or failure in any material respect to take other corrective action, after receiving notice from SBA of a deficiency and the need to take corrective action;
(4) Engaging in a pattern of uncooperative behavior or taking an action that SBA determines is detrimental to the integrity or reputation of the Microloan Program, that undermines management or administration of the program, or that is not consistent with standards of good conduct. Prior to issuing a notice of a proposed formal enforcement action or immediate suspension under § 120.1540 based upon the grounds discussed in this paragraph (c)(4), SBA must send prior written notice to the Intermediary explaining why the Intermediary's actions were uncooperative, detrimental to the program, undermined SBA's management of the program, or were not consistent with standards of good conduct. The prior notice must also state that the Intermediary's actions could give rise to a specified formal enforcement action, and provide the Intermediary with a reasonable time to cure the deficiency before any further action is taken;
(5) Any other reason that SBA determines may increase SBA's financial or program risk (for example, repeated Less Than Acceptable Risk Ratings (generally in conjunction with other indicators of increased risk) or indictment on felony or fraud charges of an officer, key employee, or loan agent involved with SBA programs for the Intermediary);
(6) For immediate suspension of an Intermediary - upon a determination by SBA that:
(i) One or more of the grounds in paragraph (c) of this section exists; and
(ii) Immediate action is needed to protect the interests of the Federal Government (such as where there is risk of immediate harm or loss, a significant program integrity concern, or clear evidence of conduct indicating a lack of business integrity); and
(7) As otherwise authorized by law.[73 FR 75521, Dec. 11, 2008, as amended at 80 FR 34047, June 15, 2015; 85 FR 14782, Mar. 16, 2020]