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nature of the matters to be heard, the time and place of the hearing, and, if designated, the presiding officer before whom the testimony is to be taken or the evidence produced. Notice of such hearing will be served upon the applicant or his attorney by registered mail addressed to the last known address, and will be personally served on the Administrator.

§ 200.23 Order of procedure. To promote orderliness and clarity of the record, evidence in support of the Application ordinarily shall first be received and secondly, such evidence in reply as may be appropriate. Thereafter, rebuttal and any necessary additional evidence shall be received. The applicant will open and close except as may otherwise be directed by the presiding officer.

§ 200.24 Evidence: Admissibility generally. Except as otherwise provided, the rules of evidence governing civil proceedings in matters not involving trial by jury in the courts of the United States shall govern: Provided, however, That such rules may be relaxed by the Board, or presiding officer, to insure an adequate and fair hearing. It shall be the policy of the Board to exclude all irrelevant, immaterial, and unduly repetitious evidence. The weight to be attached to evidence presented in any particular form will be determined by the presiding officer in the exercise of reasonable discretion under all the circumstances of the particular case.

§ 200.25 Evidence: By stipulation. The parties by stipulation in writing, filed with the Board or presented at the hearing, may agree upon any facts involved in a proceeding. Stipulations filed need not be formally offered to be considered in evidence. Written stipulations shall be filed in triplicate. Any objections to the relevancy of a particular part or all of a stipulation should be noted in the stipulation, but the Board will give consideration to any objection to the relevancy of stipulated facts made at the hearing. The Board may set aside a stipulation where justice requires, but will not receive evidence tending to qualify, change, or contradict any fact properly introduced into the record by stipulations. Exhibits attached to a stipulation shall be lettered serially if offered by the applicant, and numbered serially if offered by the Administrator. Exhibits which are offered as joint exhibits shall be marked serially as fol

lows: 1-A, 2-B, etc. Triplicates of exhibits appended to the stipulations need not be provided unless requested.

§ 200.26 Evidence: By deposition. Evidence may be offered in the form of depositions as provided in § 200.17. However, the depositions will not be considered until offered and received in evidence. Exhibits attached to the depositions shall be identified as provided in § 200.25 for exhibits to stipulations.

§ 200.27 Evidence: Ex parte affidavit. Ex parte affidavits, and briefs, do not constitute evidence.

§ 200.28 Evidence: Failure to submit. Failure to adduce evidence in support of the material facts alleged in the Application and denied by the Administrator in his Answer, will be ground for dismissal. Where there is a joinder of issue on questions of facts, the party upon whom rests the burden of proof must produce evidence in support of the is

sues.

§ 200.29 Evidence: Submission without oral hearings or appearance. Any proceeding not requiring an oral hearing for the submission of evidence (as, for example, where sufficient facts have been admitted, stipulated, or included in the record in some other way) may be submitted at any time by stipulation and notice of the parties filed with the Board. The Board or presiding officer, upon request of the parties, will fix a time for filing briefs or oral argument. A contested motion not predicated upon an issue of fact, may be submitted in the same manner. (See § 200.16 (f).)

§ 200.30 Documentary evidence: Substitution. When books, records, papers, or documents, have been received in evidence, copies thereof, or of so much thereof as may be material or relevant may, in the discretion of the Board or presiding officer, be substituted therefor. After the decision of the Board in any proceeding has become final, the Board may permit the withdrawal by the party entitled thereto of original exhibits, or the Board may make such other disposition thereof as it deems advisable.

§ 200.31 Burden of proof. The applicant shall be the moving party and shall have the burden of proof on all issues involved in the Application. The Adminstrator shall have the burden of proof on all new issues contained in the Answer.

§ 36.4350 Estate of veteran in real property. (a) The estate in the realty acquired by the veteran, wholly or partly with the proceeds of a guaranteed or insured loan, or owned by him and on which construction, or repairs, or alterations or improvements are to be made, shall be not less than:

(1) A fee simple estate therein, legal or equitable; or

(2) A leasehold estate running or renewable at the option of the lessee for a period of not less than 14 years from the maturity of the loan, or to any earlier date at which the fee simple title will vest in the lessee, which is assignable or transferable, if the same be subjected to the lien, or

(3) A life estate, provided that the remainder and reversionary interests are subjected to the lien.

The title to such estate shall be such as is acceptable to informed buyers, title companies, and attorneys, generally, in the community in which the property is situated, except as modified by paragraph (b) of this section.

(b) Any such property or estate will not fail to comply with the requirements in paragraph (a) of this section by reason of the following:

(1) Encroachments;
(2) Easements;

(3) Servitudes;

(4) Reservations for water, timber, or subsurface rights;

(5) Right in any grantor or co-tenant in the chain of title, or a successor of either, to purchase for cash, which right by the terms thereof is exercisable only if:

(i) An owner elects to sell,

(ii) The option price is not less than the price at which the then owner is willing to sell to another, and

(iii) Exercised within 30 days after notice is mailed by registered mail to the address of optionee last known to the then owner, of the then owner's election to sell, stating his price and the identity of the proposed vendee;

(6) Building and use restrictions whether or not enforceable by a reverter clause if there has been no breach of the conditions affording a right to an exercise of the reverter;

(7) Any other covenant, condition, restriction, or limitation approved by the

Administrator in the particular case. Such approval shall be a condition precedent to the guaranty or insurance of the loan;

Provided, That the limitations on the quantum or quality of the estate or property that are indicated in this paragraph, insofar as they may materially affect the value of the property for the purpose for which it is used, are taken into account in the appraisal of reasonable value required by the act: And provided further, That, as to home loans guaranteed or insured subsequent to February 15, 1950, the title to any such property or estate shall not be acceptable under § 36.4320 (h) if it is subject to restrictions against sale or occupancy on the ground of race, color, or creed, which have been created and filed of record subsequent to that date.

[15 F. R. 4398, July 12, 1950; 15 F. R. 4550, July 18, 1950]

§ 36.4351 Loans, first, second, or unsecured. (a) Loans for the purchase of real property or a leasehold estate as limited in the regulations concerning guaranty or insurance of loans to veterans, or for the alteration, improvement or repair thereof and for more than $1,000 and more than 40 percent of the reasonable value of such property or estate prior thereto shall be secured by a first lien on the property or estate. Loans for such alteration, improvement, or repairs for more than $1,000 but 40 percent or less of the prior reasonable value of the property shall be secured by either a first or second lien. Those for $1,000 or less need not be secured, and in lieu of the title examination the lender may accept a statement from the borrower that he has an interest in the property not less than that prescribed in § 36.4350 (a).

(b) Loans for the installation of equipment which will become fixtures upon, or for the repair, alteration or improvement of property being occupied under a lease with an unexpired term not less than the duration of the loan, and which property is used in connection with the business or farming operation of a veteran, may, if otherwise eligible, be guaranteed or insured: Provided, That the prospective income from the business or farming operation will permit retirement of the indebtedness within the term of the loan: And provided further, That the loan is secured to the extent required by § 36.4337.

just and proper. The Board's findings and decision as to the facts shall be supported by reliable, probative, and substantial evidence. When appropriate, the Board shall fix the amount to be paid to the institution for tuition, fees, or other charges, which amount may be greater than, less than, or the same as, the amount previously fixed by the Veterans Administration. In no event shall the Board fix a rate of payment for tuition, fees, or other charges in excess of the maximum amount allowable under the Servicemen's Readjustment Act of 1944, as amended.

$ 200.40 Final administrative determination. The decision of the Board with respect to all matters shall constitute the final administrative determination.

§ 200.41 Administrative Procedure Act. The Board shall be subject, in respect to hearings, appeals, and all other actions and qualifications, to the provisions of sections 5 to 11, inclusive, of the Administrative Procedure Act, approved June 11, 1946, as amended.

§ 200.42 Informal procedure. When, in the judgment of the Board, public interest would be served and the interest of all parties would be more speedily determined by inspection and examination without a formal hearing under the foregoing rules, informal proceedings leading to a decision may be ordered, as authorized under the exceptions set forth in section 5 of the Administrative Procedure Act of 1946. In such cases, after application for review of the determination of the Administrator and a petition for the use of the informal procedure with allegations in support thereof, showing applicability in the matter to be decided, the Board, a member or members of the Board, or a hearing examiner appointed by the Board, after due and reasonable notice of a time and place certain, will consider the matter involved in the pending appeal by conducting appropriate inspection and examination. During the inspection and examination, or immediately thereafter, parties in interest may present informally, for the record, pertinent statements in support of their contentions. The inspector or examiner at the close of said inspection, and conference, if any, will make his findings of fact and conclusions based upon said inspection and examination

and such findings and conclusions will constitute, upon approval, the decision of the Board.

[16 F. R. 3618, Apr. 27, 1951]

$ 200.43 Petition for rehearing. Whenever either party desires to question the correctness or sufficiency of the Board's decision, or to amend same, the complaining party must file a petition for rehearing, in quadruplicate, within 15 days from receipt of the decision. All grounds relied upon shall be included in one petition and be accompanied by brief. A petition founded on error of fact shall specify the fact or facts which are regarded as erroneously found, or omitted, with full reference to the record. If founded on error of law the petition shall specify points which the Board is supposed to have erred, with references to authorities relied upon to support the petition. A petition upon the ground of newly discovered evidence shall not be entertained unless it appears therein that the newly discovered evidence came to the knowledge of the party filing the petition after hearing on merits; that it was not for want of due diligence that such evidence did not sooner come to its knowledge; that it is so material that it would probably produce a different decision if a rehearing is granted; and that it is not cumulative. A petition upon the grounds of newly discovered evidence shall be accompanied by an affidavit of the party setting forth the facts in detail which the petitioner expects to be able to prove, the name, occupation, and residence of each witness and the identity of documents; and why such facts could not have been discovered before the hearing by due diligence. A petition for rehearing shall be served by the Board upon the opposite party, who may file response thereto within 20 days unless such time is extended. The petition and response, if any, shall thereafter be considered by the Board in conference, and I will there be decided or scheduled for argument and/or for rehearing. [17 F. R. 6963, July 30, 1952]

§ 200.44 Inspection of Board's decisions and rulings. All rulings and final decisions of the Board are available for inspection at the office of the Board and at the various Regional Offices of the Veterans' Administration.

[17 F. R. 6963, July 30, 1952]

terminated and what terms or conditions, if any, are imposed for termination or modification of the refusal to appraise. Notice of such determination shall be given to the person requesting the hearing. Such person shall have the right to appeal such decision to the Administrator within thirty (30) days after the date of receipt of such notice. In the event of an appeal, the Administrator will decide the matter finally, and will notify the person who filed the appeal of his decision.

[17 F. R. 9668, Oct. 25, 1952, as amended at 20 F. R. 769, Feb. 4, 1955; 20 F. R. 9180, Dec. 10, 1955]

§ 36.4362 Requirement of construction warranty. In implementation of section 801 (a), Public Law 560, 83d Congress, each certificate of reasonable value issued by the Administrator on or after October 1, 1954, relating to a proposed or newly constructed dwelling unit shall be subject to the express condition that the builder, seller, or the real party in interest in the transaction, shall deliver to the veteran constructing or purchasing such dwelling with the aid of a guaranteed or insured loan a warranty, in the form prescribed by the Administrator, that the property has been completed in substantial conformity with the plans and specifications upon which the Administrator based his valuation of the property, including any modifications thereof, or changes or variations therein, approved in writing by the Administrator, and no certificate of guaranty or insurance credit shall be issued unless a copy of such warranty duly receipted by the purchaser is submitted with the loan papers.

[19 F. R. 6338, Oct. 1, 1954]

REFINANCING; SECTION 507

§ 36.4365 Indebtedness eligible for refinancing. (a) No loan shall be made to refinance delinquent indebtedness less than 60 days in default without a written statement from the holder of the delinquent obligation or other evidence satisfactory to the Administrator that it is delinquent.

(b) Any loan proposed to be made to refinance a delinquent obligation which was incurred within one year of the date of the application for refinancing shall be referred in advance to the Administrator with a report of the proposed borrower's income and expenses, and his affidavit stating the purchase price of

the property purchased with the proceeds of the delinquent loan. The Administrator may hold any such case to be ineligible if it appears the guaranty or insurance of such refinancing would effect an evasion of any of the limitations imposed by the act.

(c) No loan guaranteed or insured by the Administrator under Title III may be refinanced under section 507 of that title.

[13 F. R. 7281, Nov. 27, 1948]

SOURCE:

SECTION 508 LOANS

36.4370 to 36.4375 appear at 13 F. R. 7281, Nov. 27, 1948, except as otherwise noted.

§ 36.4370 Insured loan and insurance account. (a) Loans otherwise eligible may be insured when purchased by a lender eligible under section 508 if the purchaser (lender) submits with the loan report evidence of an agreement, general or special, made prior to the closing of the loan, to purchase such loan subject to its being insured.

(b) A current account shall be maintained in the name of each insured lender or purchaser. The account shall be credited with the appropriate amounts available for the payment of losses on insured loans made or purchased. The account shall be debited with appropriate amounts on account of transfers, purchases under § 36.4318, or payment of losses. The Administrator may on 6 months' notice close any lender's insurance account. Such account after expiration of the 6-month period shall be available only as to loans embraced therein.

(c) Amounts received or recovered by the Administrator or the holder with respect to a loan after payment of an insured claim thereon will not restore any amount to the holder's insurance account.

§ 36.4371 Amount payable by Administrator for credit on loan. The amount payable by the Administrator for credit on the loan in accordance with section 508 (c) of the act will be 4 percent of the amount credited to the lender's insurance account for the particular loan.

§ 36.4372 Transfer of insured loans. (a) In cases involving the transfer from one insured financial institution to another insured institution of loans which are transferred without recourse, guaranty, or repurchase agreement, if no

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