SRC-HRD S.B. 173 75(R)    BILL ANALYSIS


Senate Research CenterS.B. 173
By: Patterson
State Affairs
2-24-97
As Filed


DIGEST 

Currently, the Texas Constitution prohibits the use of equity in a home
for collateral for loans other than home improvement loans.  S.B. 173
allows homeowners to voluntarily apply for a loan or reversible mortgage
loans using their homestead property as collateral not to exceed 90
percent of the fair market value. 

PURPOSE

As proposed, S.B. 173 authorizes an encumbrance on the use of a homestead
property for an equity loan and sets forth procedures and restrictions
regarding the making of an equity loan utilizing homestead property as
collateral. 

RULEMAKING AUTHORITY

Rulemaking authority is granted to the Finance Commission of Texas under
SECTION 2  and to the commissioner of insurance under SECTION 5 (Article
5A.29(e), Article 5069-1.01 et seq., V.T.C.S., Section 9.07(g), Insurance
Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 41.001(b), Property Code, to authorize
encumbrances to be properly fixed on homestead property for an equity
loan, as defined by Article 5A.01, Title 79, V.T.C.S.. 

SECTION 2. Amends Title 79, V.T.C.S., by adding Chapter 5A, as follows:

CHAPTER 5A.  EQUITY LOANS

Art. 5A.01.  DEFINITIONS.  Defines "advance," "application," "blended
equity loan," "business day," "equity loan," "lender," and "reverse
mortgage."   

Art. 5A.02.  CONSTRUCTION OF CHAPTER.  Sets forth the terms under which an
equity loan is considered closed.  Sets forth the provisions regarding the
establishment of the fair market value of a homestead property. 

Art. 5A.03.  APPLICABILITY OF CHAPTER AND OTHER LAW.  Establishes which
laws apply to a lender making, originating, negotiating, or arranging an
equity loan, including a reverse mortgage.  Establishes that a blended
equity loan is governed by this chapter. Provides that a loan made for the
payment or refinancing of all or part of a valid encumbrance on homestead
property authorized by Section 41.001(b) (1), (2), (3), (4), or (5),
Property Code, is not an equity loan, but may be made subject to this
chapter under certain conditions.  Provides that the inclusion of closing
costs in the loan amount for a loan described by this subsection does not
cause the loan to be an equity loan.  Sets forth additional provisions
regarding closing costs.   

Art. 5A.04.  AUTHORIZED LENDERS.  Authorizes an equity loan to be made,
originated, negotiated, or arranged, by a bank, savings and loan
association, savings bank, credit union; person licensed under Chapter 3
of this title; or a person approved as a mortgagee by the U.S. Department
of Housing and Urban Development to make insured loans under the National
Housing Act.   

Art. 5A.05.  ELIGIBLE PROPERTY.  Prohibits an equity loan from being
secured by homestead property that is designated for agricultural use as
provided by Chapter 23C, Tax Code. 

Art. 5A.06.  ONE EQUITY LOAN AUTHORIZED; IDENTIFICATION REQUIREMENT.
Prohibits a homestead from being encumbered by more than one equity loan
in addition to any valid encumbrances on homestead property authorized by
Section 41.001(b) (1), (2), (3), (4), or (5), Property Code.  Sets forth
the required contents of a recorded lien instrument, including a deed of
trust or security agreement.  Sets forth the required language for the
headings.  Provides that a recorded lien instrument used to secure an
equity loan is not made invalid because the lender fails to comply with
this article.   

Art. 5A.07.  ADVANCES AND REPAYMENT DETERMINED BY AGREEMENT. Allows an
equity loan to provide for funding to or for the benefit of the borrower
in one or more advances at a frequency and for a term to which the parties
agree.  Allows an equity loan to provide for repayment in one or more
payments on a payment schedule and in amounts to which the parties agree. 

Art. 5A.08.  CREDIT CARD ACCESS PROHIBITED.  Prohibits an equity loan from
being in the form of a credit card transaction, as defined by Section
1.01(g) of this title. 

Art. 5A.09.  PERCENT OF VALUE LIMIT.  Prohibits the committed principal
amount of an equity loan plus the aggregate total of the outstanding
balances of other indebtedness secured by valid encumbrances of record
against the homestead property from exceeding 90 percent of the fair
market value of the homestead property on the date the equity loan is
closed.  Provides that violation of this article does not affect the
validity of other indebtedness secured by valid encumbrances of record
against the homestead property. 

Art. 5A.10.  ADVANCE NOT INCLUDED AS OUTSTANDING INDEBTEDNESS. Provides
that for the purposes of Article 5A.09, the aggregate total of outstanding
balances of indebtedness secured by valid encumbrances of record against
the homestead property does not include any advance made by a lender to
protect a lien, security interest, or other valid encumbrance on the
homestead property securing the loan, including the payment of hazard
insurance premiums, repairs to the homestead property, or payments on any
indebtedness secured by a prior valid encumbrance on the homestead
property. 

Art. 5A.11.  LIMIT ON COLLATERAL AND USE OF PROCEEDS.  Prohibits a lender
from requiring or accepting real or personal property as additional
collateral on an equity loan, with exceptions.  Sets forth prohibitions
for a lender regarding requirements for borrowers.  Provides that this
article does not prohibit any lawful statutory lien, valid common law
lien, or right of offset, or prevent a lender from requiring insurance
authorized by this chapter as additional security for an equity loan.
Sets forth provisions regarding the use of proceeds of a sale of the
homestead or its fixtures as part of the security for the loan. Provides
that a provision of a deed of trust or other security agreement that
secures a loan other than an equity loan and that makes the deed of trust
or security agreement applicable to other indebtedness of the borrower
does not apply to the collateral securing an equity loan of the borrower.
Provides that this subsection does not affect the validity of the
provision as applied to a loan other than an equity loan.  Prohibits an
equity loan from containing a provision that makes the lien on homestead
property security for any other indebtedness of the borrower.   

Art. 5A.12.  ACCELERATION PROHIBITED.  Set forth prohibitions against
lenders accelerating the remaining payments of an equity loan.  Provides
exceptions. 

Art.  5A.13.  NOTICE.  Sets forth the language required in the notice a
lender is required to provide to a borrower in an equity loan.  Requires
the lender to provide the notice when the lender receives an application
for the loan. 
 
Art. 5A.14.  WAITING PERIOD; RESCISSION.  Prohibits the closing of an
equity loan within a certain period.  Authorizes the owner of homestead
property securing an equity loan to rescind the loan.  Provides that
compliance with all applicable state and federal laws regarding the right
to rescind is considered compliance with this chapter regarding
rescission. Provides that the right of rescission provided by this article
applies to each equity loan made under this chapter, regardless of the
purpose of the loan.  Prohibits an owner of the homestead property
securing an equity loan from waiving the right of rescission required by
this article, regardless of whether applicable state or federal law
provides for a waiver.   

Art. 5A.15.  LOCATION OF CLOSING.  Prohibits the closing of an equity loan
at the residence of the borrower.  Requires an equity loan to be closed
only at an office of the lender, a title company, or an attorney licensed
to practice law in this state.  Provides that a recital in the deed of
trust or other security agreement securing an equity loan stating the
location of the closing is conclusive evidence that the equity loan was
closed at that location. 

Art. 5A.16.  GENERAL PROVISIONS RELATING TO REVERSE MORTGAGES. Provides
that notwithstanding any other provision of this chapter, payment in whole
or in part is permitted without penalty at any time during the term of a
reverse mortgage.  Provides that advances made under a reverse mortgage
have priority over a lien filed for record. Authorizes a reverse mortgage
to provide for an interest rate that is fixed or adjustable and also
provide for interest that is contingent on appreciation in the fair market
value of the homestead property.  Prohibits the reduction in amount or
number because of an adjustment in the interest rate, if a reverse
mortgage provides for periodic advances to a borrower. Provides that a
lender who fails to make loan advances as required in the loan documents,
and who fails to cure the default as required in the documents, forfeits
any right to collect all interest. 

Art.  5A.17.  REPAYMENT OF REVERSE MORTGAGE.  Provides that a reverse
mortgage becomes due and payable if certain specified conditions exist.
Sets forth prohibitions in regard to the payment and due date of a reverse
mortgage in the event of the homestead property owner's absence.  Provides
that the lender's right to collect reverse mortgage payments is subject to
the applicable statute of limitations for a debt.  Provides that the
limitations period for the lien securing an equity loan is governed by
Sections 16.035 and 16.036, Civil Practice and Remedies Code.  Requires
the lender, in the loan documents, to prominently disclose any interest or
fee to be charged during the period that begins on the date the reverse
mortgage becomes due and payable and ends when repayment is full.   

Art.  5A.18.  INAPPLICABILITY OF OTHER STATUTES TO REVERSE MORTGAGE.
Authorizes the making or acquisition of a reverse mortgage loan without
regard to specific provisions of any applicable state or federal statute
and sets forth the provisions. 

Art. 5A.19.  STATUS OF REVERSE MORTGAGE LOAN UNDER PUBLIC ASSISTANCE
PROGRAM.  Provides that for the purposes of determining eligibility under
any statute relating to payments, allowance, benefits, or services
provided on a means-tested basis by this state, reverse mortgage loan
advances made to a borrower are considered proceeds from a loan and not
income; and undisbursed funds under a reverse mortgage are considered
equity in a borrower's home and not proceeds from a loan. 

Art. 5A.20.  REVERSE MORTGAGE LOAN INFORMATION AND COUNSELING. Prohibits a
lender from making a reverse mortgage commitment unless the loan applicant
attests in writing that the applicant received from the lender, at the
time the notice is required by Article 5A.13 of this title, a statement
prepared by the consumer credit commissioner (commissioner) regarding the
advisability and availability of independent information and counseling
services on reverse mortgages.  Requires the commissioner to develop the
content and format of the statement and provide specific information to
consumers regarding reverse mortgages.   

Art. 5A.21.  INTEREST.  Authorizes a lender to contract for and receive an
equity loan on  any rate of interest that does not exceed the maximum rate
authorized under Article 1.04 of this title or any other related state or
federal statute.  Requires interest to be accrued and earned by applying
the simple annual interest rate or rates under the loan contract to the
principal balance, which may include unpaid interest and additions to the
principal authorized by the loan contract.  Authorizes the lender, in
determining the amount of interest accrued, to assume that the payments
have been made as originally scheduled and ignore any difference created
by late or early payments.  Authorizes interest to accrue and be
compounded during the term of the loan as provided by the reverse mortgage
loan agreement, although payment of principal or interest is prohibited
from being required under a reverse mortgage until the entire loan becomes
due and payable. 

Art.  5A.22.  CLOSED-END EQUITY LOANS.  Requires each closed-end equity
loan to be scheduled to be repaid in substantially equal successive
monthly installments, except that the first installment is authorized to
be scheduled beyond one month from the date of the loan but not beyond two
months from the date of the loan.  Requires the amount of each installment
under the schedule of payments for a closed-end equity loan to equal or
exceed the amount of interest scheduled to accrue as of the date of the
installment or that would accrue as of the installment date through
amortization of the loan on the date of the loan.   

Art. 5A.23.  CHARGES AND FEES.  Sets forth the specific charges and fees a
lender is authorized to collect with a contract for an equity loan.  

Art. 5A.24.  INSURANCE.  Authorizes a lender to request or require a
borrower to provide insurance and sets forth provisions regarding the
amounts, terms, and conditions applicable.  
Art. 5A.25.  LENDER'S DUTY TO BORROWER.  Requires the lender under an
equity loan to deliver to the borrower a copy of the note or the contract
for an open-end account, a copy of all other documents signed by the
borrower or borrowers, and a written statement to include certain
information.  Authorizes the delivery of a copy of the note or other loan
document to the borrower rather than the separate written statement, if
the note or document contains information required by Subsection (a).
Requires the lender to give a receipt to a person making a cash payment if
requested by the borrower.  Authorizes the collection of a prepayment fee,
charge, or penalty on an equity loan except as prohibited by Articles 1.07
and 5A.16 of this title.  Requires the holder to follow certain guidelines
upon the termination and full payment of an equity loan. 

Art. 5A.26.  PROHIBITED PRACTICES.  Prohibits a lender from accepting as
security for a loan made under this chapter an assignment of wages, a
confession of judgment or power of attorney running to the lender or to a
third person to confess judgment or to appear for a borrower in a judicial
proceeding, or an instrument in which blanks are left to be filled in
after an equity loan is executed. 

Art. 5A.27.  OWNER ACKNOWLEDGMENT.  Authorizes a lienholder or assignee
for value to conclusively rely on an acknowledgment by the owner of
homestead property and the owner's spouse, if the owner is married, of
compliance with applicable requirements for an equity loan secured by a
mortgage, trust deed, or other lien on a homestead.   

Art. 5A.28.  REPORT BY LENDERS.  Requires a lender, before March 1 of each
year, that makes an equity loan to submit to the director of the division
of access to financial services a report of the lender's home equity loan
activity during the calendar year preceding the year the report is
submitted.   Sets forth requirements for the report.  Authorizes the
director of the division of access to financial services to collect a
reasonable filing fee.  Authorizes the director to accept a copy of a
report submitted by the lender to a federal agency instead of the report
required under Subsection (a), if the report contains the required
information. Provides that a lender that does not make a home equity loan
during the period covered by a report is not required to submit the
report. 

Art. 5A.29.  EQUITY LOAN RECOVERY FUND.  Requires the commissioner to
establish and maintain an equity loan recovery fund.  Requires money in
the fund to be used for  reimbursing aggrieved persons who suffer certain
actual damages.  Prohibits an action for judgment that subsequently
results in an order for collection from being started later than two years
after the date of accrual of the cause of action.  Requires money received
by the commissioner for deposit in the equity loan recovery fund to be
held by the commissioner in trust for carrying out the purposes of the
fund.  Requires the Finance Commission of Texas (finance commission) to
establish and collect reasonable and necessary fees from each authorized
lender for each home equity loan originated by the lender to accomplish
the purposes of this article.  Requires collected fees to be deposited
into the fund.  Requires the finance commission to adopt rules necessary
to implement this article.   

SECTION 3. Amends Chapter 2, Title 79, V.T.C.S. (Article 5069-2.01 et
seq., V.T.C.S.), by adding Articles 2.02E and 2.02F, as follows: 

Art. 2.02E.  DIVISION OF ACCESS TO FINANCIAL SERVICES.  Provides that the
division of access to financial services is created in the Office of
Consumer Credit Commissioner to inform, monitor, and report on the
availability and quality of home equity loans.  Requires the division to
be administered by a director appointed by the commissioner.  Requires the
director to adequately staff the division to carry out the division's
functions under this article.  Sets forth the required duties of the
division. Authorizes the division to apply for and receive public and
private grants and gifts as well as to contract with public and private
entities to carry out studies and analyses under this article.  Requires
the consumer credit commissioner to establish and collect reasonable and
necessary fees to accomplish the purposes of this article. 
  
Art. 2.20F.  STUDY AND REPORT; EQUITY LOANS.  Requires the director of the
division of access to financial services, after May 1, 2000, to conduct a
study of equity lending under Chapter 5A of this title.  Requires the
director, before January 1, 2001, to submit a report on its study to the
governor, lieutenant governor, and speaker of the house of
representatives.  Sets forth the required contents of the report.
Provides that this section expires January 2, 2001.   

SECTION 4. Amends Article 9.02, Insurance Code, by adding Subsection (r),
to define "equity loan mortgagee policy." 

SECTION 5. Amends Section 9.07, Insurance Code, by adding Subsection (g),
to require the commissioner of insurance (COI) to promulgate an
endorsement that must be attached to an equity loan mortgagee policy.
Sets forth requirements for the endorsement.  Authorizes COI to promulgate
other policies and endorsements relating to an equity loan security
interest in a homestead.   
 
SECTION 6. Effective date: January 1, 1998, pending voter approval.  

SECTION 7. Emergency clause.