IOne of the policies underlying the Small Business Act states that the government should “aid, counsel, assist, and protect, insofar as is possible, the interests of small-business concerns.” 15 U. On July 12, 1995, John Bradley, a loan officer at the Bank, called Roger Hoffman at the SBA, who was responsible for managing the SBA's guaranteed loan program in the eastern 29 counties of Iowa. United States Bureau of Prisons, 140 F.3d 791, 795 (8th Cir.1998) (internal citations omitted). We agree with the district court that the decision to place a loan in liquidation is discretionary.Bradley informed Hoffman that Audio Odyssey had failed to pay the loan installments for June and July, that it had fallen behind on paying its employee withholding taxes, and that it was overdrawn on its checking account. To do this, we must determine whether the “statute, regulation, or policy mandates a specific course of action.” Id. Second, if the government action is the product of judgment or choice, it must be “based on ‘considerations of public policy.’ ” Id. The SOP provides “automatic” and discretionary means for placing an account in liquidation.The SBA acknowledges that the provisions regarding the liquidation plan and field visit do use mandatory language but argues that the mandatory language must be read in light of the discretionary language found in paragraph 44. The government will be directly affected by this suit as it will determine if the United States is liable under the 1978 Guaranty Agreement. The Seventh Circuit's opinion in Holbrook is instructive. Under these Section 8 contracts, the project owners were responsible for certifying eligible tenants for HUD benefits. The plaintiff tenants argued that the purpose of the Section 8 contracts was to provide rental assistance to low income families, while HUD claimed the contracts were meant to help financially troubled housing projects. Like the Section 8 contracts in Holbrook, the 1978 Guaranty Agreement is a vehicle for achieving the purposes underlying the Small Business Act. The purpose of the 1978 Guaranty Agreement is to facilitate this goal.
which stated that the Bank was accelerating the loan and that the entire balance of approximately 6,000 was due in 10 minutes at a.m. SOP 50 51 1 ¶ 1(c) states that, while the SOP “is applicable in its entirety to all SBA participation loans,” the SOP is applied within the constraints of the terms of any “Loan Guaranty Agreement” and any applicable “Rules and Regulations.” In 1995, 13 C. In Chapter Two entitled “Correspondence, Report and Control Systems,” SOP 50 51 1 ¶ 19 states: “Upon the classification of a loan as in liquidation, a liquidation plan must be developed by the liquidation officer and approved by the line supervisor.” A liquidation plan “consists of several parts, starting with a review of factual data to determine the present situation, and leading to a realistic and effective action plan for timely resolution of the debt.” SOP 50 51 1 ¶ 19(a).
Bradley also told Hoffman that Audio Odyssey was going to hold a sale that weekend and Bradley feared that the profits would be applied to the withholding tax Audio Odyssey owed rather than to the loan from the Bank. This requires the Court to determine if the judgment is “grounded in social, economic or political policy.” Id. See SOP 50 51 1 ¶ 4(a) (lists situations which will automatically place an account in liquidation); SOP 50 51 1 ¶ 4(b) (entitled “Non Automatic Situations (Judgmental),” it lists situations that will “ordinarily” trigger liquidation).
According to Hoffman's deposition testimony, Bradley explained that the Bank representatives were going to meet with Mr. deadline for 30 days which would allow Audio Odyssey to become current on the loan and would give Mr. When the policy allows government agents to exercise discretion, “ ‘it must be presumed that the agent's acts are grounded in policy when exercising that discretion.’ ” Id. The liquidation decision here was evidently based on the perceived threat to the collateral which is a “non-automatic” situation (that “ordinarily” triggers liquidation) expressly provided for in SOP 50 51 1 ¶ 4(b). This does not end the inquiry, however, because once a loan is “in liquidation” the SOP provides certain mandatory steps that must be taken during the liquidation process.
Dincer and that the Bank would give Audio Odyssey until p.m. Hoffman believes the call came after he had spoken to Bradley. Dincer time to negotiate a payment plan with the IRS on his tax liability. Dincer that he would have to discuss this workout proposal with Bradley. Dincer claims he called Bradley several times on July 13 but that his calls were not returned. Dincer, on July 13 he went to the Bank with a large sum that would cover the missed June and July payments. Dincer instructed the teller to apply the funds to those loan payments. To determine whether an action by a government official was discretionary, we employ a two-part test defined by the Supreme Court in Berkovitz v. According to SOP 50 51 1 ¶ 2(b)(1), the “mandatory parts of the SOP are identified through the use of the words ‘shall,’ ‘will,’ and ‘must.’ ” Several of the steps that Audio Odyssey claims the SBA failed to take are written in mandatory language.
the next day-July 13, 1995-to bring everything current. It is not clear from the record if those funds were credited to the loan payments. For example, SOP 50 51 1 ¶ 44(a) states that when the guaranteed lender notifies the SBA of a delinquency or situation that may lead to liquidation, “[d]uring the conversation, the SBA spokesperson will arrange for the required field visit and advise the lender that no action, including making demand on the borrower, is to be taken without SBA's written approval.” Audio Odyssey claims that Hoffman failed to inform the Bank that it was to take no action, including making a demand on the borrower, or file suit without written approval.
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