By Gutierrez                                          H.B. No. 2487
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to certain fees that may be charged on a consumer credit
    1-3  contract.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Article 5.02, Title 79, Revised Statutes (Article
    1-6  5069-5.02, Vernon's Texas Civil Statutes), is amended to read as
    1-7  follows:
    1-8              (1)  Any person authorized to do business under the
    1-9  provisions of this Chapter may contract for and receive on any
   1-10  secondary mortgage loan made under the authority of this Chapter
   1-11  repayable in consecutive monthly installments, substantially equal
   1-12  in amount, an add-on interest charge of Eight Dollars per One
   1-13  Hundred Dollars per annum for the full term of the loan contract,
   1-14  or as an alternative thereto, any rate or amount authorized by
   1-15  Article 1.04 of this Title, as amended.  Notwithstanding the
   1-16  foregoing, any secondary mortgage loan described in this Section
   1-17  may provide for the establishment of the first scheduled
   1-18  installment due date beyond one month from the date of the loan but
   1-19  not beyond one month plus fifteen days from the date of the loan.
   1-20              (2)  Interest authorized in Section (1) of this Article
   1-21  shall be computed on the cash advance at the time the loan is made
   1-22  for the full term of the loan contract notwithstanding the
   1-23  requirement of the loan contract for payment in substantially equal
    2-1  regular monthly installments and shall be computed on the basis of
    2-2  a full month for any fractional period in excess of fifteen days.
    2-3  Precomputed interest authorized by Section (1) of this Article
    2-4  shall be added to the cash advance and said sum shall be the amount
    2-5  of the loan.
    2-6              (3)  An authorized lender may arrange a secondary
    2-7  mortgage loan which provides for repayment in other than
    2-8  substantially equal installment amounts and/or provides that the
    2-9  first monthly installment is not scheduled to be repayable within
   2-10  one month plus fifteen days from the date of the loan.  However,
   2-11  the first installment due date of a secondary mortgage loan made
   2-12  under the authority of this Section shall not be scheduled to be
   2-13  repaid later than three months from the date of the loan.  On any
   2-14  loan made under the authority of this Section, the lender may
   2-15  contract for, charge, or receive interest charges at a simple
   2-16  annual rate not in excess of a rate, considering the entire term of
   2-17  the loan, permitted in Section (1) of this Article.  The interest
   2-18  contracted for, charged, or received shall not be precomputed but
   2-19  shall be accrued and earned by applying the simple annual interest
   2-20  rate under the loan contract to the principal balance, including
   2-21  additions to principal subsequent to the loan contract, from time
   2-22  to time unpaid until the date of payment in full or demand for
   2-23  payment in full.
   2-24              (4)  Notwithstanding any other provisions of this
   2-25  Chapter, a borrower and a lender may enter into a written agreement
    3-1  pursuant to which one or more loans or advances to or for the
    3-2  account of the borrower shall be made from time to time.  The
    3-3  agreement shall contain the date of the agreement and the name and
    3-4  address of each borrower and of the lender and shall be signed by
    3-5  the parties.  A copy of the agreement shall be delivered to the
    3-6  borrower.  The agreement may provide for a maximum loan charge on
    3-7  the unpaid principal amounts from time to time outstanding not in
    3-8  excess of a rate producing an interest yield equivalent to that
    3-9  which would be permitted on a similar loan made under Section (1)
   3-10  of this Article.  The Commissioner shall prescribe monthly rates of
   3-11  charge which produce an interest yield equal to the add-on rate
   3-12  permitted under Section (1) of this Article on a loan of the same
   3-13  amount.  The loan agreement shall clearly set forth, if a charge
   3-14  for insurance is to be included in the contract, a simple statement
   3-15  of the amount of such charge or the method by which it will be
   3-16  calculated.
   3-17              (5)  On any loan contract which includes precomputed
   3-18  interest, and is payable in substantially equal successive monthly
   3-19  installments, additional interest for default, if contracted for,
   3-20  may equal but shall not exceed Five Cents for each One Dollar of
   3-21  any scheduled installment when any portion of such installment
   3-22  continues unpaid for ten days or more following the date such
   3-23  payment is due, including Sundays and holidays.  Interest for such
   3-24  default shall not be collected more than once on the same
   3-25  installment.  If the payment date of each wholly unpaid
    4-1  installment, on which no interest for default has been collected is
    4-2  deferred as of an installment date for one or more full months and
    4-3  the maturity of the contract is extended for a corresponding period
    4-4  of time, the lender may charge and collect additional interest for
    4-5  such deferment.  The interest for such deferment may be equal to
    4-6  the difference between the refund which would be required for
    4-7  prepayment in full as of the date of deferment and the refund which
    4-8  would be required for prepayment in full as of one month prior to
    4-9  such date multiplied by the number of months in the deferment
   4-10  period as defined below.  The portion of the interest contracted
   4-11  for under Section (1) of this Article applicable to each deferred
   4-12  balance and installment period following a deferment period shall
   4-13  remain the same as that applicable to such balance and period under
   4-14  the original contract of loan.  If a loan is prepaid in full during
   4-15  the deferment period defined below, the borrower shall receive, in
   4-16  addition to the refund required under Section (6) of this Article,
   4-17  a pro-rata refund of that portion of the interest for deferment
   4-18  applicable to any unexpired full month or months of such period.
   4-19  The deferment period is that period beginning with the day
   4-20  following the due date of the scheduled installment preceding the
   4-21  first installment being deferred, and during which no payment is
   4-22  made or required by reason of such deferment.  The interest for
   4-23  default or interest for deferment may be collected at the time of
   4-24  its accrual, or at any time thereafter.
   4-25              (6)(i)  When any loan contract payable in not more than
    5-1  sixty substantially equal successive monthly installments beginning
    5-2  within one month plus fifteen days after the date of the contract
    5-3  and containing precomputed interest is prepaid in full by cash, a
    5-4  new loan, renewal, or otherwise, or when the lender demands payment
    5-5  in full of the unpaid balance, after the first installment due date
    5-6  but before the final installment due date, the lender shall refund
    5-7  or credit the borrower with an amount which shall be as great a
    5-8  proportion of the total interest contracted for under Section (1)
    5-9  of this Article as the sum of the periodic balances scheduled to
   5-10  follow the installment date after the date of prepayment in full or
   5-11  demand for payment in full bears to the sum of all the periodic
   5-12  time balances under the schedule of payments set out in the loan
   5-13  contract.  If such prepayment in full or demand for payment in full
   5-14  occurs before the first installment due date the lender shall
   5-15  retain for each elapsed day from date the loan was made,
   5-16  one-thirtieth of the portion of the interest which could be
   5-17  retained if the first installment period were one month and the
   5-18  loan were prepaid in full on the first installment period due date
   5-19  and the interest contracted for under Section (1) of this Article
   5-20  in excess of such amount shall be refunded or credited to the
   5-21  borrower.
   5-22                          (ii)  When any loan contract which includes
   5-23  precomputed interest and is payable in more than sixty
   5-24  substantially equal successive monthly installments beginning
   5-25  within one month plus fifteen days after the date of the contract
    6-1  is prepaid in full by cash, a new loan, renewal, or otherwise, or
    6-2  if the lender demands payment in full of the unpaid balance before
    6-3  the final installment due date, the lender shall retain earned
    6-4  interest for the period from the date of the loan to the date of
    6-5  prepayment in full or demand for payment in full in an amount not
    6-6  to exceed that which would accrue at the simple annual interest
    6-7  rate which the loan contract would have produced over its full term
    6-8  if each scheduled payment had been paid on the date due when
    6-9  applied to the unpaid principal amounts determined to be
   6-10  outstanding from time to time according to the schedule of payments
   6-11  having due regard for the amount of each scheduled installment and
   6-12  the time of each scheduled installment period.  In the event
   6-13  prepayment in full or demand for payment in full occurs on a date
   6-14  during an installment period, the lender, in addition to interest
   6-15  earnings for the installment period or periods that have elapsed,
   6-16  may retain for each day elapsed from the immediately preceding
   6-17  installment due date to the date of prepayment in full or demand
   6-18  for payment in full an interest charge produced by applying the
   6-19  simple annual interest rate under the contract as heretofore
   6-20  described to the unpaid principal balance of the loan determined to
   6-21  be outstanding according to the schedule of payments as of the
   6-22  immediately preceding installment due date and dividing that
   6-23  product by three hundred sixty-five.  All interest contracted for
   6-24  and precomputed in the amount of loan in excess of the interest
   6-25  authorized to be retained by this subsection shall be refunded or
    7-1  credited to the borrower.
    7-2                          The lender may also retain earned interest
    7-3  on any additions to principal or other permissible charges added to
    7-4  the loan subsequent to the date of the loan contract, at the simple
    7-5  annual interest rate as described above, from the date such
    7-6  additions are made until paid or until demand for payment in full
    7-7  of the total unpaid balance under the loan contract is made by the
    7-8  lender.
    7-9                          If the loan contract does not contain
   7-10  precomputed interest, then interest may be earned on the principal
   7-11  balance, including additions to principal subsequent to the loan
   7-12  contract, from time to time unpaid, at the rate contracted for,
   7-13  until the date of payment in full or demand for payment in full.
   7-14                          (iii)  No refund shall be required for
   7-15  partial prepayments and no refund of less than One Dollar need be
   7-16  made.
   7-17              (7)  In addition to the authorized charges provided in
   7-18  this Chapter no further or other charge or amount whatsoever shall
   7-19  be directly, or indirectly, charged, contracted for, or received.
   7-20  This includes (but is not limited by) all charges such as fees,
   7-21  compensation, bonuses, commissions, brokerage, discounts, expenses
   7-22  and every other charge of any nature whatsoever, whether of the
   7-23  types listed herein or not.  Without limitation of the foregoing,
   7-24  such charges may be any form of costs or compensation whether
   7-25  contracted for or not, received by the lender, or any other person,
    8-1  in connection with (a) the investigating, arranging, negotiation,
    8-2  procuring, guaranteeing, making, servicing, collecting or enforcing
    8-3  of a loan; or (b) for the forbearance of money, credit, goods or
    8-4  things in action; or (c) for any other service or services
    8-5  performed or offered.  A secondary mortgage loan lender or an
    8-6  assignee of a secondary mortgage loan may collect on or before the
    8-7  closing of a loan, or include in the principal of the secondary
    8-8  mortgage loan, the following:
    8-9                    (A)  reasonable fees for title examination and
   8-10  preparation of an abstract of title by an attorney not an employee
   8-11  of the lender, or a title company or property search company
   8-12  authorized to do business in this State; or premiums or fees for
   8-13  title insurance or title search for the benefit of the mortgagee,
   8-14  and, at mortgagor's option, title insurance or title search for the
   8-15  benefit of the mortgagor;
   8-16                    (B)  reasonable fees charged to the lender by an
   8-17  attorney, provided the attorney is not a salaried employee of the
   8-18  lender, for preparation of the loan documents in connection with
   8-19  the mortgage loan, if the fees are evidenced by a statement for
   8-20  services rendered addressed to the lender;
   8-21                    (C)  charges prescribed by law that are or will
   8-22  be paid to public officials for determining the existence of and
   8-23  for perfecting, releasing, and satisfying a security interest;
   8-24                    (D)  reasonable fees for an appraisal of real
   8-25  property offered as security for the loan prepared by a certified
    9-1  appraiser who is not an employee of the lender;
    9-2                    (E)  reasonable cost of any credit report;
    9-3                    (F)  reasonable fees for a survey of real
    9-4  property offered as security for the loan prepared by a registered
    9-5  surveyor who is not a salaried employee of the lender; <and>
    9-6                    (G)  the premiums received in connection with the
    9-7  sale of credit life insurance, credit accident and health
    9-8  insurance, and insurance which protects the mortgagee in the event
    9-9  of default by the mortgagor, the benefits of which go in whole or
   9-10  in part to reduce or extinguish the loan balance.  Premiums for
   9-11  property insurance written in conformity with Section (2) of
   9-12  Article 5.03 of this Title may be added to the loan contract<.>;
   9-13  and
   9-14                    (H)  reasonable fees which are incurred in
   9-15  connection with the real property offered as security for the loan
   9-16  in order to comply with federally mandated programs where such
   9-17  collection or participation is required by an agency created by
   9-18  federal law.
   9-19                    In addition, the contract for a secondary
   9-20  mortgage loan may provide for:
   9-21                    (A)  reasonable fees or charges paid to the
   9-22  trustee in connection with a deed of trust or similar instrument
   9-23  executed in connection with the secondary mortgage loan, including
   9-24  but not limited to fees for enforcing the lien, posting for sale,
   9-25  selling, or releasing the property secured by the deed of trust;
   10-1                    (B)  reasonable fees paid to an attorney who is
   10-2  not an employee of the creditor in the collection of a delinquent
   10-3  secondary mortgage loan and any court costs and fees incurred in
   10-4  the collection of, or foreclosure of, any lien created by the loan;
   10-5                    (C)  a fee of Fifteen Dollars or less for the
   10-6  return by a depository institution of a dishonored check,
   10-7  negotiable order of withdrawal, or share draft offered in full or
   10-8  partial payment of a secondary mortgage loan.
   10-9              (8)  Notwithstanding any other provision of this
  10-10  Chapter, a borrower and a lender may enter into a written agreement
  10-11  under which the terms and conditions of a loan contract under this
  10-12  Chapter are modified, extended, amended, restated, or rescheduled.
  10-13  The agreement must contain the date of the agreement and the name
  10-14  and address of each borrower and the lender, and must be signed by
  10-15  the parties.  A copy of the agreement shall be delivered to the
  10-16  borrower.
  10-17        SECTION 2.  This Act takes effect September 1, 1995.
  10-18        SECTION 3.  The importance of this legislation and the
  10-19  crowded condition of the calendars in both houses create an
  10-20  emergency and an imperative public necessity that the
  10-21  constitutional rule requiring bills to be read on three several
  10-22  days in each house be suspended, and this rule is hereby suspended.