By:  Danburg                                           H.B. No. 579
       73R1235 LJD-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to mortgage loans and to encumbrances on homestead
    1-3  property.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 41.001(b), Property Code, is amended to
    1-6  read as follows:
    1-7        (b)  Encumbrances may be properly fixed on homestead property
    1-8  for:
    1-9              (1)  purchase money;
   1-10              (2)  taxes on the property; <or>
   1-11              (3)  work and material used in constructing
   1-12  improvements on the property if contracted for in writing before
   1-13  the material is furnished or the labor is performed and in a manner
   1-14  required for the conveyance of a homestead, with joinder of both
   1-15  spouses if the homestead claimant is married; or
   1-16              (4)  a debt that is a home equity loan as provided by
   1-17  Chapter 5A, Title 79, Revised Statutes, unless the owners have on
   1-18  file an unrevoked affidavit as provided by Article 5A.08 of that
   1-19  chapter.
   1-20        SECTION 2.  Title 79, Revised Statutes (Article 5069-1.01 et
   1-21  seq., Vernon's Texas Civil Statutes), is amended by adding Chapter
   1-22  5A to read as follows:
   1-23                    CHAPTER 5A.  HOME EQUITY LOANS
   1-24        Art. 5A.01.  HOME EQUITY LOAN DEFINED; USE; OTHER LOANS
    2-1  INCLUDED.  (1)  In this chapter, "home equity loan" means a loan or
    2-2  other written agreement extending credit for any purpose, including
    2-3  a contract for an open-end account, made under this chapter to any
    2-4  person, that is secured in whole or in part by any lien on or other
    2-5  interest in a homestead created by a mortgage, deed of trust, or
    2-6  other document.
    2-7        (2)  The proceeds of a home equity loan may be used for any
    2-8  purpose.
    2-9        (3)  A loan made for the payment or refinancing of all or
   2-10  part of the purchase money of a homestead or for work and material
   2-11  used in constructing improvements on a homestead may be made under
   2-12  this chapter, but the loan is not considered a home equity loan and
   2-13  is not subject to this chapter unless the parties elect in the loan
   2-14  documents to be governed by this chapter.
   2-15        Art. 5A.02.  APPLICABILITY OF CHAPTER.  (1)  Only the
   2-16  following persons may engage in the business of making,
   2-17  negotiating, or arranging home equity loans:
   2-18              (A)  a bank, savings and loan association, or credit
   2-19  union, doing business under the laws of this state or the United
   2-20  States;
   2-21              (B)  a person licensed under Chapter 3 of this title
   2-22  (Article 5069-3.01 et seq., Vernon's Texas Civil Statutes); or
   2-23              (C)  a lender approved by the U.S. Department of
   2-24  Housing and Urban Development.
   2-25        (2)  Home equity loans may be made in addition to any loans
   2-26  otherwise authorized for those lenders.
   2-27        (3)  Notwithstanding any other law of this state, a person
    3-1  making, negotiating, or arranging a home equity loan under this
    3-2  chapter is required to comply only with the requirements of this
    3-3  chapter, any nonconflicting requirements of any law relied on as
    3-4  authority for the rate or amount of interest provided for in the
    3-5  loan, and the requirements of applicable federal law.
    3-6        Art. 5A.03.  LOAN REQUIREMENTS.  (1)  A home equity loan,
    3-7  other than a reverse annuity mortgage or other annuity agreement,
    3-8  may provide for funding to or for the benefit of the borrower in
    3-9  one or more advances at a frequency and for a term as agreed by the
   3-10  parties.  Advances to the borrower or to others under a reverse
   3-11  annuity mortgage or other annuity agreement may be made at a
   3-12  frequency and in amounts as agreed by the parties if the reverse
   3-13  annuity or other annuity is for the life of at least one of the
   3-14  borrowers.  A home equity loan may provide for repayment in one or
   3-15  more payments on the payment schedule and in the amounts agreed on
   3-16  by the parties.
   3-17        (2)  A home equity loan may be made only if, at the time the
   3-18  loan is executed by the borrower, the principal amount of the loan,
   3-19  when added to all outstanding indebtedness secured by the
   3-20  homestead, does not exceed 80 percent of the appraised value of the
   3-21  homestead.
   3-22        (3)  In determining the outstanding indebtedness under
   3-23  Section (2) of this article, unearned interest, however
   3-24  denominated, shall be excluded.  For the purpose of establishing
   3-25  the appraised value of the property, the lender shall use the most
   3-26  recent appraisal as rendered by the tax appraisal district of the
   3-27  county in which the property is located or an appraisal made by an
    4-1  appraiser who is a member of either the Appraisal Institute or the
    4-2  Society of Real Estate Appraisers or by a person who has been
    4-3  approved for this purpose by the regulatory authority regulating
    4-4  the lender.  An appraisal made in accordance with this chapter may
    4-5  be relied on by the lender.
    4-6        (4)  A lender may not accelerate the payment schedule of a
    4-7  home equity loan or demand payment in full of the loan solely
    4-8  because of a decrease in the market value of the property securing
    4-9  the loan.
   4-10        (5)  Additional collateral may not be required on a home
   4-11  equity loan except for personal property affixed to the homestead
   4-12  in a manner that would classify the property as a fixture.  This
   4-13  section does not prohibit or limit any statutory or common law lien
   4-14  or right of offset.  This section does not prevent a lender from
   4-15  requiring insurance as additional protection and security for a
   4-16  loan if the insurance is authorized by this chapter.  Proceeds of a
   4-17  sale of the homestead or its fixtures or proceeds of insurance
   4-18  covering the property are not considered additional collateral and
   4-19  may be included as part of the security for the loan.
   4-20        (6)  The lender shall provide to a borrower in the note or
   4-21  other loan documents at the time the borrower executes a home
   4-22  equity loan a notice in 10-point boldfaced type as follows:
   4-23        "YOU ARE PLEDGING YOUR HOME AS COLLATERAL TO SECURE THE
   4-24        PAYMENT OF A LOAN.  IN THE EVENT OF NONPAYMENT OR
   4-25        FAILURE TO PERFORM THE TERMS OF THE LOAN CONTRACT, THE
   4-26        LENDER HAS THE RIGHT TO FORECLOSE ON YOUR HOME AND SELL
   4-27        IT TO SATISFY PAYMENT OF THE LOAN."
    5-1        (7)  The lender may not advance the proceeds of a home equity
    5-2  loan until the expiration of three business days after the date the
    5-3  loan is executed by the borrower.  The borrower is entitled to
    5-4  rescind the home equity loan by giving written notice to the lender
    5-5  before the expiration of that three-day period.
    5-6        (8)  A home equity loan made under this chapter may not be
    5-7  closed at the residence of the borrower, and all such loans must be
    5-8  closed at an office of the lender, a title company, a title search
    5-9  company, or an attorney licensed to practice law in this state.
   5-10        Art. 5A.04.  INTEREST, CHARGES, AND FEES.  (1)  A lender may
   5-11  contract for and receive on a home equity loan any fixed or
   5-12  variable rate of interest that does not exceed any rate of interest
   5-13  authorized under Article 1.04 of this title (Article 5069-1.04,
   5-14  Vernon's Texas Civil Statutes) or any other statute authorizing the
   5-15  lender to charge a rate of interest.  The interest contracted for,
   5-16  charged, or received shall be accrued and earned by applying the
   5-17  simple annual interest rate under the loan contract to the
   5-18  principal balance, including additions to principal subsequent to
   5-19  the loan contract, from time to time unpaid until the date of
   5-20  payment in full.
   5-21        (2)  A lender may charge the following fees or charges in
   5-22  connection with a home equity loan if collected on or before
   5-23  closing or included in the principal of the loan:
   5-24              (A)  reasonable fees for title examination and
   5-25  preparation of an abstract of title by an attorney who is not a
   5-26  salaried employee of the lender or by a title company or property
   5-27  search company authorized to do business in this state, or premiums
    6-1  or fees for title insurance or title search for the benefit of the
    6-2  mortgagee and, at the mortgagor's option, title insurance or title
    6-3  search for the benefit of the mortgagor;
    6-4              (B)  reasonable fees charged to the lender by an
    6-5  attorney who is not a salaried employee of the lender for
    6-6  preparation of the loan documents in connection with the home
    6-7  equity loan if the fees are evidenced by a statement for services
    6-8  rendered that is addressed to the lender;
    6-9              (C)  charges prescribed by law that are or will be paid
   6-10  to public officials for determining the existence of, and for
   6-11  perfecting, releasing, and satisfying, liens or security interests;
   6-12              (D)  reasonable fees for an appraisal of real property
   6-13  offered as security for the loan prepared by an appraiser described
   6-14  by Article 5A.03(3) of this title;
   6-15              (E)  the reasonable cost of any credit report and a
   6-16  loan application fee;
   6-17              (F)  reasonable fees for a survey of real property
   6-18  offered as security for the loan prepared by a registered surveyor
   6-19  who is not a salaried employee of the lender;
   6-20              (G)  a loan origination fee;
   6-21              (H)  prepaid interest in the form of discount or other
   6-22  points; and
   6-23              (I)  premiums in connection with the sale of credit
   6-24  life insurance and credit health and accident insurance, the
   6-25  benefits of which go in whole or in part to reduce or extinguish
   6-26  the loan balance.
   6-27        (3)  Premiums for property insurance written in accordance
    7-1  with Article 5A.05 of this title may be added to the loan contract.
    7-2        (4)  In addition, the contract for a home equity loan may
    7-3  provide for:
    7-4              (A)  reasonable fees or charges paid to the trustee in
    7-5  connection with a deed of trust or similar instrument executed in
    7-6  connection with the home equity loan, including fees for enforcing
    7-7  the lien, posting for sale, selling, or releasing the property
    7-8  secured by the deed of trust;
    7-9              (B)  reasonable fees paid to an attorney who is not a
   7-10  salaried employee of the lender in the collection of a delinquent
   7-11  home equity loan and any court costs and fees incurred in the
   7-12  collection of or foreclosure of any lien created by the loan;
   7-13              (C)  a fee of $15 or less for the return by a
   7-14  depository institution of a dishonored check, negotiable order of
   7-15  withdrawal, share draft, or deposit draft offered in full or
   7-16  partial payment of a home equity loan; and
   7-17              (D)  if contracted for, a penalty or late charge if any
   7-18  scheduled payment continues unpaid for 10 days or more following
   7-19  the date the payment is due.
   7-20        (5)  Only one penalty or late charge authorized by Section
   7-21  (4)(D) of this article may be charged for each past due scheduled
   7-22  payment.  The penalty or late charge may not exceed five percent of
   7-23  the scheduled payment.  The penalty or late charge is not interest
   7-24  under any law that defines interest or limits the rate of interest
   7-25  that may be charged, and it may be charged and collected in
   7-26  addition to the interest authorized by law.
   7-27        Art. 5A.05.  INSURANCE.  On any home equity loan, a lender
    8-1  may request or require a borrower to provide insurance in the same
    8-2  amounts and under the same conditions as may apply to secondary
    8-3  mortgage loans as provided by Articles 5.02 and 5.03 of this title
    8-4  (Articles 5069-5.02 and 5069-5.03, Vernon's Texas Civil Statutes).
    8-5        Art. 5A.06.  LENDER'S DUTY TO BORROWER.  (1)  On any home
    8-6  equity loan, the lender shall deliver to the borrower, or to one of
    8-7  the borrowers if more than one, a copy of the note and all other
    8-8  documents signed by the borrower and a written statement in English
    8-9  showing the following information:
   8-10              (A)  the names and addresses of the borrower and of the
   8-11  lender; and
   8-12              (B)  the types of insurance, if any, for which a charge
   8-13  is included in the loan agreement and the charge to the borrower
   8-14  for the insurance.
   8-15        (2)  If the note or other loan documents show the information
   8-16  required by Section (1) of this article, a copy of the note or
   8-17  other loan documents may be delivered instead of a separate
   8-18  statement.
   8-19        (3)  The lender shall give a receipt to a person making a
   8-20  cash payment on any loan.
   8-21        (4)  Any home equity loan may be prepaid in whole or in part,
   8-22  without penalty, during regular working hours on any day the lender
   8-23  is open for business, except that the lender may require a partial
   8-24  prepayment to be made in the amount of that part of one or more
   8-25  installments that would be applicable to principal.  In the event
   8-26  of a prepayment in full of a home equity loan with regularly
   8-27  scheduled payments, the lender may assume that the periodic
    9-1  payments have been made as originally scheduled and ignore any
    9-2  differences created by late or early payments.
    9-3        (5)  On termination and full payment of a home equity loan,
    9-4  the holder shall, within a reasonable time, cancel and return any
    9-5  note to the borrower and shall furnish to the borrower releases of
    9-6  any mortgage, deed of trust, security interest, or other interest
    9-7  securing the loan that no longer secures any indebtedness of the
    9-8  borrower to the holder.
    9-9        Art. 5A.07.  PROHIBITED PRACTICES.  (1)  A lender may not
   9-10  accept an assignment of wages as security for any loan made under
   9-11  this chapter.
   9-12        (2)  A lender may not accept any confession of judgment or
   9-13  any power of attorney running to the lender or to any third person
   9-14  to confess judgment or to appear for a borrower in a judicial
   9-15  proceeding.
   9-16        (3)  Except in the case of an open-end account, a lender may
   9-17  not accept any promise to pay or loan obligation that does not
   9-18  disclose, on the loan obligation or on a separate statement, the
   9-19  amount financed and the schedule of payments.
   9-20        (4)  A lender may not accept any instrument in which blanks
   9-21  are left to be filled in after the loan is made.
   9-22        (5)  A lender may not accept any instrument in which a
   9-23  borrower waives any right accruing to him under this chapter unless
   9-24  the waiver is authorized by this chapter.
   9-25        Art. 5A.08.  AFFIDAVIT OF INELIGIBILITY OF HOMESTEAD FOR HOME
   9-26  EQUITY LOAN.  (1)  All owners of a homestead may execute and file
   9-27  in the deed records of the county in which the homestead is located
   10-1  an affidavit stating that the property, while it is a homestead, is
   10-2  not eligible to be used as security for a home equity loan
   10-3  authorized by Article XVI, Section 50(a)(4), of the Texas
   10-4  Constitution.  The filing of the affidavit prevents all persons,
   10-5  including the owners, from placing a lien securing a home equity
   10-6  loan on the homestead property for the three-year period after the
   10-7  filing date and continuously thereafter for successive three-year
   10-8  periods unless revoked by the then current owners within 30 days
   10-9  before the next scheduled expiration date of the affidavit, or
  10-10  until all homestead interest of the owners has been terminated.
  10-11        (2)  The affidavit must be in substantially the following
  10-12  form:
  10-13        STATE OF TEXAS               )
  10-14        COUNTY OF                    )
  10-15        I/We, ___________, being the owner(s) of real property
  10-16        located in _____________ County, Texas, which is my/our
  10-17        homestead, being more particularly described as
  10-18        follows:
  10-19                  ___________________________________
  10-20                  ___________________________________
  10-21        do hereby invoke the provisions of Article XVI, Section
  10-22        50(k), of the Texas Constitution, which prevents, after
  10-23        complying with the provisions of this article, the
  10-24        encumbrance of homestead property with a home equity
  10-25        loan for a period of three years from the date of the
  10-26        filing of this affidavit and continuously thereafter
  10-27        for successive three-year periods until revoked by the
   11-1        then current owners by filing a document of revocation
   11-2        in the same manner as the original affidavit within 30
   11-3        days before the next scheduled expiration date of the
   11-4        affidavit.
   11-5        EXECUTED ON THIS _____ day of _____________, _____.
   11-6                                  _____________________________
   11-7                                  Affiant(s)
   11-8        STATE OF TEXAS               )
   11-9        COUNTY OF                    )
  11-10        SWORN TO AND SUBSCRIBED BEFORE ME, the undersigned
  11-11        authority by the affiant(s) on this _____ day of
  11-12        ______________, ______.
  11-13                                  _____________________________
  11-14                                  Notary Public
  11-15                                  State of Texas
  11-16        SECTION 3.  This Act applies only to a home equity loan
  11-17  executed on or after the effective date of this Act.
  11-18        SECTION 4.  This Act takes effect on the date the
  11-19  constitutional amendment proposed by H.J.R. No. ______, Acts of the
  11-20  73rd Legislature, Regular Session, 1993, takes effect.  If that
  11-21  amendment is not approved by the voters, this Act has no effect.
  11-22        SECTION 5.  The importance of this legislation and the
  11-23  crowded condition of the calendars in both houses create an
  11-24  emergency and an imperative public necessity that the
  11-25  constitutional rule requiring bills to be read on three several
  11-26  days in each house be suspended, and this rule is hereby suspended.