By:  Patterson, Ellis                                  S.B. No. 173

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to a voluntary, consensual encumbrance on homestead

 1-2     property for the purpose of an equity loan.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Subsection (b), Section 41.001, Property Code, is

 1-5     amended to read as follows:

 1-6           (b)  Encumbrances may be properly fixed on homestead property

 1-7     for:

 1-8                 (1)  purchase money;

 1-9                 (2)  taxes on the property;

1-10                 (3)  work and material used in constructing

1-11     improvements on the property if contracted for in writing as

1-12     provided by Sections 53.059(a), (b), and (c);

1-13                 (4)  an owelty of partition imposed against the

1-14     entirety of the property by a court order or by a written agreement

1-15     of the parties to the partition, including a debt of one spouse in

1-16     favor of the other spouse resulting from a division or an award of

1-17     a family homestead in a divorce proceeding; [or]

1-18                 (5)  the refinance of a lien against a homestead,

1-19     including a federal tax lien resulting from the tax debt of both

1-20     spouses, if the homestead is a family homestead, or from the tax

1-21     debt of the owner; or

1-22                 (6)  an equity loan, as defined by Article 5A.01, Title

1-23     79, Revised Statutes (Article 5069-5A.01, Vernon's Texas Civil

 2-1     Statutes).

 2-2           SECTION 2.  Title 79, Revised Statutes (Article 5069-1.01 et

 2-3     seq., Vernon's Texas Civil Statutes), is amended by adding Chapter

 2-4     5A to read as follows:

 2-5                          CHAPTER 5A.  EQUITY LOANS

 2-6           Art. 5A.01.  DEFINITIONS.  In this chapter:

 2-7                 (1)  "Advance" means a draw or extension of credit

 2-8     under an equity loan structured as a contract for an open-end

 2-9     account or as a reverse mortgage.

2-10                 (2)  "Application" means an oral or written request for

2-11     an equity loan made according to procedures established by the

2-12     lender.

2-13                 (3)  "Blended equity loan" means an equity loan made

2-14     for:

2-15                       (A)  the payment or refinancing of all or part of

2-16     the purchase money of a homestead, taxes on homestead property, a

2-17     federal tax lien on homestead property, an owelty of partition

2-18     imposed against homestead property, or the work and material used

2-19     in constructing improvements on a homestead or for the refinance of

2-20     any other lien against the homestead; and

2-21                       (B)  another purpose.

2-22                 (4)  "Business day" means a day other than a Sunday or

2-23     a legal public holiday listed by 5 U.S.C. Section 6103(a).

2-24                 (5)  "Equity loan" means an extension of credit under a

2-25     written agreement, including a contract for an open-end account,

 3-1     blended equity loan, or reverse mortgage, that is:

 3-2                       (A)  secured in whole or in part by a voluntary

 3-3     lien on or other consensual security interest in a homestead; and

 3-4                       (B)  created with the consent of each owner and

 3-5     the spouse of each owner in accordance with applicable statutory

 3-6     requirements.

 3-7                 (6)  "Lender" means an authorized lender under Article

 3-8     5A.04 of this title.

 3-9                 (7)  "Reverse mortgage" means a nonrecourse equity

3-10     loan:

3-11                       (A)  under which advances are provided to a

3-12     borrower based on the equity in a borrower's homestead property;

3-13     and

3-14                       (B)  that requires no payment of principal or

3-15     interest until the entire loan becomes due and payable.

3-16           Art. 5A.02.  CONSTRUCTION OF CHAPTER.  (a)  For the purposes

3-17     of this chapter, an equity loan is considered closed on the

3-18     earliest date on which both of the following are executed:

3-19                 (1)  each promissory note, or contract for an open-end

3-20     account, evidencing the equity loan; and

3-21                 (2)  a deed of trust or other security instrument

3-22     securing the equity loan.

3-23           (b)  In establishing the fair market value of homestead

3-24     property, a lender shall rely on an appraisal or evaluation,

3-25     whichever may be appropriate, prepared in accordance with a state

 4-1     or federal requirement applicable to the lender.  If no state or

 4-2     federal appraisal or evaluation requirement applies to an equity

 4-3     loan, the fair market value of the homestead property may be, at

 4-4     the lender's option, the value estimate set forth in:

 4-5                 (1)  the most recent ad valorem tax appraisal district

 4-6     valuation for the homestead property;

 4-7                 (2)  an appraisal prepared by a licensed or certified

 4-8     appraiser under the Texas Appraiser Licensing and Certification Act

 4-9     (Article 6573a.2, Vernon's Texas Civil Statutes); or

4-10                 (3)  any other appraisal or evaluation.

4-11           Art. 5A.03.  APPLICABILITY OF CHAPTER AND OTHER LAW.  (a)  A

4-12     lender making, originating, negotiating, or arranging an equity

4-13     loan, including a reverse mortgage, shall comply with:

4-14                 (1)  this chapter;

4-15                 (2)  any nonconflicting requirement of another law

4-16     relied on as authority for the rate or amount of interest provided

4-17     for in the loan; and

4-18                 (3)  applicable federal law.

4-19           (b)  A blended equity loan is governed by this chapter.

4-20           (c)  A loan made for the payment or refinancing of all or

4-21     part of a valid encumbrance on homestead property authorized by

4-22     Section 41.001(b)(1), (2), (3), (4), or (5), Property Code, is not

4-23     an equity loan but may be made subject to this chapter if the

4-24     parties agree in the loan documents that the loan is to be governed

4-25     by this chapter.  The inclusion of closing costs in the loan amount

 5-1     for a loan described by this subsection does not cause the loan to

 5-2     be an equity loan.  Closing costs include discount points,

 5-3     origination fees, private mortgage insurance premiums, property or

 5-4     casualty insurance premiums, title insurance premiums, lender

 5-5     escrow account impound deposits, inspection fees, recording fees,

 5-6     courier and express mail delivery fees, underwriting fees,

 5-7     attorney's fees for preparation of loan documents or loan

 5-8     disclosures, title company imposed escrow fees, survey fees, and

 5-9     other settlement charges.

5-10           Art. 5A.04.  AUTHORIZED LENDERS.  (a)  An equity loan may be

5-11     made, originated, negotiated, or arranged only by:

5-12                 (1)  a bank, savings and loan association, savings

5-13     bank, or credit union doing business under the laws of this state

5-14     or the United States;

5-15                 (2)  a person licensed under Chapter 3 of this title;

5-16                 (3)  a person approved as a mortgagee by the United

5-17     States Department of Housing and Urban Development to make insured

5-18     loans under the National Housing Act (12 U.S.C. Section 1701 et

5-19     seq.); or

5-20                 (4)  a person contracted to make, originate, or arrange

5-21     loans qualified for purchase by the Federal National Mortgage

5-22     Association or Federal Home Loan Mortgage Corporation.

5-23           (b)  A lender under Subsection (a) of this article may make

5-24     an equity loan in addition to any other loan authorized for that

5-25     lender.

 6-1           Art. 5A.05.  ELIGIBLE PROPERTY.  An equity loan may not be

 6-2     secured by homestead property that is designated for agricultural

 6-3     use as provided by Subchapter C, Chapter 23, Tax Code.

 6-4           Art. 5A.06.  ONE EQUITY LOAN AUTHORIZED; IDENTIFICATION

 6-5     REQUIREMENT.  (a)  At any time, a homestead may not be encumbered

 6-6     by more than one equity loan in addition to any valid encumbrances

 6-7     on homestead property authorized by Section 41.001(b)(1), (2), (3),

 6-8     (4), or (5), Property Code.

 6-9           (b)  A recorded lien instrument securing an equity loan,

6-10     including a deed of trust or security agreement, must contain:

6-11                 (1)  the following phrase or its substantial equivalent

6-12     in bold type at the bottom of the first page:  "THIS INSTRUMENT

6-13     SECURES AN EQUITY LOAN."; and

6-14                 (2)  one or more of the following headings near the top

6-15     of the first page:

6-16                       (A)  Equity Loan Mortgage;

6-17                       (B)  Equity Loan Deed of Trust;

6-18                       (C)  Equity Loan Security Agreement; or

6-19                       (D)  Equity Loan Lien.

6-20           (c)  A recorded lien instrument securing an equity loan is

6-21     not made invalid because the lender fails to comply with this

6-22     article.

6-23           Art. 5A.07.  ADVANCES AND REPAYMENT DETERMINED BY AGREEMENT.

6-24     An equity loan may provide for funding to or for the benefit of the

6-25     borrower in one or more advances at a frequency and for a term to

 7-1     which the parties agree.  An equity loan may provide for repayment

 7-2     in one or more payments on a payment schedule and in amounts to

 7-3     which the parties agree.

 7-4           Art. 5A.08.  CREDIT CARD ACCESS PROHIBITED.  An equity loan

 7-5     may not be in the form of a credit card transaction, as defined by

 7-6     Section 1.01(g) of this title.

 7-7           Art. 5A.09.  PERCENT OF VALUE LIMIT.  The committed principal

 7-8     amount of an equity loan plus the aggregate total of the

 7-9     outstanding balances of other indebtedness secured by valid

7-10     encumbrances of record against the homestead property may not

7-11     exceed 90 percent of the fair market value of the homestead

7-12     property on the date the equity loan is closed.  Violation of this

7-13     article does not affect the validity of other indebtedness secured

7-14     by valid encumbrances of record against the homestead property.

7-15           Art. 5A.10.  ADVANCE NOT INCLUDED AS OUTSTANDING

7-16     INDEBTEDNESS.  For the purposes of Article 5A.09 of this title, the

7-17     aggregate total of the outstanding balances of indebtedness secured

7-18     by valid encumbrances of record against the homestead property does

7-19     not include any advance made by a lender to protect a lien,

7-20     security interest, or other valid encumbrance on the homestead

7-21     property securing the loan, including the payment of hazard

7-22     insurance premiums, repairs to the homestead property, or payments

7-23     on any indebtedness secured by a prior valid encumbrance on the

7-24     homestead property.

7-25           Art. 5A.11.  LIMIT ON COLLATERAL AND USE OF PROCEEDS.  (a)  A

 8-1     lender may not require or accept real or personal property as

 8-2     additional collateral on an equity loan, except for a manufactured

 8-3     home as defined by the Texas Manufactured Housing Standards Act

 8-4     (Article 5221f, Vernon's Texas Civil Statutes), personal property

 8-5     affixed or to be affixed to the homestead in a manner that would

 8-6     make the property a fixture, or rents derived from homestead

 8-7     property.  Only the homestead property securing an equity loan may

 8-8     be collateral for the equity loan.

 8-9           (b)  A lender may not:

8-10                 (1)  require or accept a borrower's homestead property,

8-11     regardless of whether the property was previously encumbered by an

8-12     existing equity loan, as collateral on a debt not described by

8-13     Section 41.001(b), Property Code; or

8-14                 (2)  require a borrower to apply the proceeds of an

8-15     equity loan to repay a debt owed to the lender, other than a debt

8-16     described by Section 41.001(b), Property Code.

8-17           (c)  This article does not:

8-18                 (1)  prohibit or limit any lawful statutory lien, valid

8-19     common-law lien, or right of offset; or

8-20                 (2)  prevent a lender from requiring insurance

8-21     authorized by this chapter as additional security for an equity

8-22     loan.

8-23           (d)  Proceeds of a sale of the homestead or its fixtures or

8-24     proceeds of insurance covering the property are not considered

8-25     additional collateral and may be included as part of the security

 9-1     for the loan.

 9-2           (e)  A provision of a deed of trust or other security

 9-3     agreement that secures a loan other than an equity loan and that

 9-4     makes the deed of trust or security agreement applicable to other

 9-5     indebtedness of the borrower does not apply to the collateral

 9-6     securing an equity loan of the borrower.  This subsection does not

 9-7     affect the validity of the provision as applied to a loan other

 9-8     than an equity loan.

 9-9           (f)  An equity loan may not contain a provision that makes

9-10     the lien on homestead property security for any other indebtedness

9-11     of the borrower.

9-12           Art. 5A.12.  ACCELERATION PROHIBITED.  (a)  A lender may not

9-13     accelerate the remaining payments of an equity loan or demand

9-14     payment of the loan in full because of a decrease in the market

9-15     value of the homestead property securing the equity loan, unless

9-16     the decrease in the market value is caused by substantial damage or

9-17     destruction to the property, a condemnation or other taking of the

9-18     property, the discovery of an environmental hazard on the property,

9-19     or the use of the property in a manner that constitutes waste on

9-20     the property or a nuisance.  This article does not prohibit a

9-21     lender, if permitted by the loan documents, from refusing to make

9-22     additional advances under an equity loan, other than a reverse

9-23     mortgage, if the market value of the homestead property decreases,

9-24     regardless of the cause of the decrease.

9-25           (b)  A lender may not accelerate the remaining payments of an

 10-1    equity loan or demand payment of the loan in full because of the

 10-2    borrower's default under any other indebtedness not secured by a

 10-3    prior valid encumbrance on the homestead property, regardless of

 10-4    whether the indebtedness is owed to the lender.  This article does

 10-5    not prohibit a lender, if permitted by the loan documents, from

 10-6    refusing to make additional advances under an equity loan, other

 10-7    than a reverse mortgage, if the borrower has defaulted in the

 10-8    performance or payment of another indebtedness owed to the lender

 10-9    or another creditor.

10-10          Art. 5A.13.  NOTICE.  (a)  The lender in an equity loan shall

10-11    provide to a borrower the following notice in type that is

10-12    boldfaced, capitalized, or underlined or otherwise set out from

10-13    surrounding written material so as to be conspicuous:

10-14                "YOU ARE PLEDGING YOUR HOMESTEAD AS COLLATERAL TO

10-15          SECURE THE PAYMENT OF A LOAN.  IF YOU DO NOT PAY, OR IF

10-16          YOU FAIL TO PERFORM THE TERMS OF THE LOAN CONTRACT, THE

10-17          LENDER HAS THE RIGHT TO FORECLOSE ON YOUR HOMESTEAD AND

10-18          SELL IT TO REPAY THE LOAN.

10-19                "YOUR HOMESTEAD MAY NOT BE PLEDGED TO SECURE THE

10-20          PAYMENT OF MORE THAN ONE EQUITY LOAN AT A TIME.

10-21                "ALL THE DEBTS AGAINST YOUR HOMESTEAD, INCLUDING

10-22          THE EQUITY LOAN, MAY NOT EXCEED 90 PERCENT OF THE VALUE

10-23          OF YOUR HOMESTEAD.

10-24                "YOUR LENDER MAY NOT REQUIRE ANY OTHER PROPERTY

10-25          YOU OWN, OTHER THAN A MANUFACTURED HOME, AS ADDITIONAL

 11-1          COLLATERAL FOR YOUR LOAN.

 11-2                "YOU HAVE AT LEAST 12 DAYS FROM THE DATE YOU

 11-3          REQUESTED THE LOAN TO CHANGE YOUR MIND ABOUT THE LOAN

 11-4          BEFORE YOU CAN SIGN THE LOAN DOCUMENTS.  IN ADDITION,

 11-5          YOU HAVE THREE BUSINESS DAYS AFTER YOU SIGN THE LOAN

 11-6          DOCUMENTS TO CHANGE YOUR MIND ABOUT THE LOAN.  IF YOU

 11-7          DECIDE NOT TO TAKE THE LOAN DURING ONE OF THESE

 11-8          PERIODS, YOU WILL HAVE NO FURTHER OBLIGATION TO THE

 11-9          LENDER.

11-10                "THE LOAN DOCUMENTS MAY NOT BE SIGNED AT YOUR

11-11          HOME.  THE LOAN DOCUMENTS MAY BE SIGNED ONLY AT:

11-12                      (1)  THE LENDER'S OFFICE;

11-13                      (2)  A TITLE COMPANY; OR

11-14                      (3)  A TEXAS ATTORNEY'S OFFICE.

11-15                "UNLESS THE INFORMATION IS CONTAINED IN YOUR NOTE

11-16          OR ANOTHER LOAN DOCUMENT, YOUR LENDER IS REQUIRED TO

11-17          GIVE YOU A WRITTEN STATEMENT WITH ITS NAME AND ADDRESS

11-18          AND YOUR NAME AND ADDRESS EITHER BEFORE OR WHEN YOU

11-19          SIGN THE LOAN DOCUMENTS.  THE STATEMENT MUST ALSO

11-20          INCLUDE A DESCRIPTION OF ANY INSURANCE YOU PURCHASED

11-21          AND HOW MUCH YOU PAID IN CONNECTION WITH THE LOAN.

11-22                "ON YOUR REQUEST, YOUR LENDER IS REQUIRED TO GIVE

11-23          YOU A RECEIPT IF YOU MAKE A PAYMENT ON THE LOAN IN

11-24          CASH."

11-25          (b)  The lender shall provide the notice when the lender

 12-1    receives an application for the loan.

 12-2          Art. 5A.14.  WAITING PERIOD; RESCISSION.  (a)  An equity loan

 12-3    may not be closed before the 12th day after the date the lender

 12-4    receives an application for the loan.

 12-5          (b)  Each owner of homestead property securing an equity loan

 12-6    may rescind the loan.  Compliance with all applicable state and

 12-7    federal law regarding the right to rescind, including 12 C.F.R.

 12-8    Sections 226.15 and 226.23, is considered compliance with this

 12-9    chapter regarding rescission.

12-10          (c)  The right of rescission provided by this article applies

12-11    to each equity loan made under this chapter, regardless of the

12-12    purpose of the loan.  An owner of the homestead property securing

12-13    an equity loan may not waive the right of rescission required by

12-14    this article, regardless of whether applicable state or federal law

12-15    provides for a waiver.

12-16          Art. 5A.15.  LOCATION OF CLOSING.  (a)  An equity loan may

12-17    not be closed at the residence of the borrower.  An equity loan

12-18    shall be closed only at an office of:

12-19                (1)  the lender;

12-20                (2)  a title company; or

12-21                (3)  an attorney licensed to practice law in this

12-22    state.

12-23          (b)  A recital in the deed of trust or other security

12-24    agreement securing an equity loan stating the location of closing

12-25    is conclusive evidence that the equity loan was closed at that

 13-1    location.

 13-2          Art. 5A.16.  GENERAL PROVISIONS RELATING TO REVERSE

 13-3    MORTGAGES.  (a)  Notwithstanding any other provision of this

 13-4    chapter, payment in whole or in part shall be permitted without

 13-5    penalty at any time during the term of a reverse mortgage.

 13-6          (b)  Advances made under a reverse mortgage and interest on

 13-7    those advances have priority over a lien filed for record in the

 13-8    real property records in the county where the homestead property is

 13-9    located after the reverse mortgage is filed for record in the real

13-10    property records of that county.

13-11          (c)  A reverse mortgage may provide for an interest rate that

13-12    is fixed or adjustable and may also provide for interest that is

13-13    contingent on appreciation in the fair market value of the

13-14    homestead property.

13-15          (d)  If a reverse mortgage provides for periodic advances to

13-16    a borrower, the advances may not be reduced in amount or number

13-17    because of an adjustment in the interest rate.

13-18          (e)  A lender who fails to make loan advances as required in

13-19    the loan documents and who fails to cure the default as required in

13-20    the loan documents forfeits any right to collect all interest.

13-21          Art. 5A.17.  REPAYMENT OF REVERSE MORTGAGE.  (a)  A reverse

13-22    mortgage becomes due and payable if:

13-23                (1)  the homestead property securing the loan is sold;

13-24                (2)  all borrowers cease occupying the homestead

13-25    property as a principal residence; or

 14-1                (3)  an event that is specified in the loan documents,

 14-2    including the death of all borrowers, occurs and jeopardizes the

 14-3    lender's security.

 14-4          (b)  Temporary absences from the homestead property by all

 14-5    borrowers for a period not exceeding 60 consecutive calendar days

 14-6    may not cause the reverse mortgage to become due and payable.

 14-7    Temporary absences from the homestead property by all borrowers for

 14-8    a period exceeding 60 consecutive calendar days but not exceeding

 14-9    one year may not cause the reverse mortgage to become due and

14-10    payable if the borrower has taken prior action to secure the home

14-11    in a manner satisfactory to the lender.

14-12          (c)  The lender's right to collect reverse mortgage payments

14-13    is subject to the applicable statute of limitations for a debt as

14-14    provided by Sections 16.004(a), 16.035, and 16.036, Civil Practice

14-15    and Remedies Code, and Section 3.118, Business & Commerce Code.

14-16    The limitations period for the lien securing an equity loan is

14-17    governed by Sections 16.035 and 16.036, Civil Practice and Remedies

14-18    Code.

14-19          (d)  In the loan documents, the lender must prominently

14-20    disclose any interest or fee to be charged during the period that

14-21    begins on the date the reverse mortgage becomes due and payable and

14-22    ends when repayment is made in full.

14-23          Art. 5A.18.  INAPPLICABILITY OF OTHER STATUTES TO REVERSE

14-24    MORTGAGE.  A reverse mortgage loan may be made or acquired without

14-25    regard to the following provisions of any applicable state or

 15-1    federal statute:

 15-2                (1)  a limitation on the purpose and use of future

 15-3    advances or other mortgage proceeds;

 15-4                (2)  a limitation on future advances to a term of years

 15-5    or a limitation on the term of open-end account advances;

 15-6                (3)  a limitation on the term during which future

 15-7    advances take priority over intervening advances;

 15-8                (4)  a requirement that a maximum loan amount be stated

 15-9    in the reverse mortgage loan documents;

15-10                (5)  a limitation on loan-to-value ratios, other than a

15-11    limitation provided by this chapter;

15-12                (6)  a prohibition on balloon payments;

15-13                (7)  a prohibition on compound interest and interest on

15-14    interest;

15-15                (8)  a prohibition on contracting for, charging, or

15-16    receiving any rate of interest authorized under Article 1.04 of

15-17    this title or under any other statute authorizing a lender to

15-18    contract for a rate of interest; and

15-19                (9)  a requirement that a percentage of the reverse

15-20    mortgage proceeds be advanced before the assignment of the reverse

15-21    mortgage.

15-22          Art. 5A.19.  STATUS OF REVERSE MORTGAGE LOAN UNDER PUBLIC

15-23    ASSISTANCE PROGRAM.  For the purposes of determining eligibility

15-24    under any statute relating to payments, allowance, benefits, or

15-25    services provided on a means-tested basis by this state, including

 16-1    supplemental security income, low-income energy assistance,

 16-2    property tax relief, medical assistance, and general assistance:

 16-3                (1)  reverse mortgage loan advances made to a borrower

 16-4    are considered proceeds from a loan and not income; and

 16-5                (2)  undisbursed funds under a reverse mortgage loan

 16-6    are considered equity in a borrower's home and not proceeds from a

 16-7    loan.

 16-8          Art. 5A.20.  REVERSE MORTGAGE LOAN INFORMATION AND

 16-9    COUNSELING.  A lender may not make a reverse mortgage commitment

16-10    unless the loan applicant attests in writing that the applicant

16-11    received from the lender, at the time the notice is required by

16-12    Article 5A.13 of this title, a statement prepared by the Consumer

16-13    Credit Commissioner regarding the advisability and availability of

16-14    independent information and counseling services on reverse

16-15    mortgages.  The Consumer Credit Commissioner shall:

16-16                (1)  develop the content and format of the statement;

16-17                (2)  provide independent consumer information on

16-18    reverse mortgages and their alternatives; and

16-19                (3)  refer consumers to independent counseling services

16-20    with expertise in reverse mortgages.

16-21          Art. 5A.21.  INTEREST.  A lender may contract for and receive

16-22    on an equity loan any fixed or variable rate of interest that does

16-23    not exceed the maximum rate of interest authorized under Article

16-24    1.04 of this title or under any other state or federal statute

16-25    authorizing the lender to contract for a rate of interest.

 17-1    Interest shall be accrued and earned by applying the simple annual

 17-2    interest rate or rates under the loan contract to the principal

 17-3    balance, which may include unpaid interest and additions to

 17-4    principal authorized by the loan contract.  In determining the

 17-5    amount of interest accrued, the lender may assume that the payments

 17-6    have been made as originally scheduled and ignore any difference

 17-7    created by late or early payments.  Although payment of principal

 17-8    or interest shall not be required under a reverse mortgage until

 17-9    the entire loan becomes due and payable, interest may accrue and be

17-10    compounded during the term of the loan as provided by the reverse

17-11    mortgage loan agreement.

17-12          Art. 5A.22.  CLOSED-END EQUITY LOANS.  (a)  Each closed-end

17-13    equity loan shall be scheduled to be repaid in substantially equal

17-14    successive monthly installments, except that the first installment

17-15    may be scheduled beyond one month from the date of the loan but not

17-16    beyond two months from the date of the loan.

17-17          (b)  The amount of each installment under the schedule of

17-18    payments for a closed-end equity loan shall equal or exceed the

17-19    amount of interest scheduled to accrue as of the date of the

17-20    installment or that would accrue as of the installment date through

17-21    amortization of the loan on the date of the loan.

17-22          Art. 5A.23.  CHARGES AND FEES.  A contract for an equity loan

17-23    may permit a lender to collect the following fees and charges in

17-24    connection with the loan:

17-25                (1)  a reasonable expense or cost paid, or that will be

 18-1    paid, to a third party that is not an employee or affiliate of the

 18-2    lender if the expense or cost:

 18-3                      (A)  is for an abstract, a title report,

 18-4    attorney's fees for a legal opinion or document preparation, a

 18-5    courier fee or express mail service fee actually incurred, a tax

 18-6    certificate charged actually incurred, a title insurance premium,

 18-7    an escrow fee that does not violate Section 8, Real Estate

 18-8    Settlement Procedures Act (12 U.S.C. Section 2607), and is imposed

 18-9    by a title insurance company, title insurance agent, or direct

18-10    operation, an escrow for future payments of taxes and insurance, an

18-11    annuity, an appraisal or evaluation, a survey, or a credit report;

18-12    or

18-13                      (B)  is actually incurred in the making or

18-14    servicing of an equity loan and necessary or proper for the

18-15    protection of the lender;

18-16                (2)  a fee prescribed by law paid, or that will be

18-17    paid, to a public official for determining the existence of or for

18-18    recording any documents in connection with the closing of an equity

18-19    loan;

18-20                (3)  a bona fide commitment fee for the separate

18-21    consideration of committing to make an equity loan in the future;

18-22                (4)  any other fee required by federal statute;

18-23                (5)  a reasonable fee or charge paid to the trustee in

18-24    connection with a deed of trust or similar instrument executed in

18-25    connection with the equity loan, including a fee for enforcing the

 19-1    lien or for posting for sale, selling, or releasing the property

 19-2    secured by the deed of trust;

 19-3                (6)  a reasonable fee paid to an attorney who is not an

 19-4    employee of the lender in the collection of a delinquent equity

 19-5    loan and any court cost or fee incurred in the collection or

 19-6    foreclosure of a lien created by the loan;

 19-7                (7)  a fee not to exceed the amount permitted by law

 19-8    for the return by a depository institution of a dishonored check,

 19-9    negotiable order of withdrawal, share draft, or deposit draft

19-10    offered in full or partial payment of an equity loan;

19-11                (8)  a late charge or penalty, if all or part of a

19-12    scheduled payment continues unpaid for 15 or more days after the

19-13    date the payment was due, except that:

19-14                      (A)  only one late charge or penalty authorized

19-15    by this article may be charged for each scheduled payment that is

19-16    past due; and

19-17                      (B)  the late charge or penalty may not exceed

19-18    five percent of the unpaid amount of the scheduled payment that is

19-19    past due; and

19-20                (9)  the premiums received in connection with the sale

19-21    of insurance as provided by Article 5A.24 of this title.

19-22          Art. 5A.24.  INSURANCE.  (a)  Under an equity loan, a lender

19-23    may request or require a borrower to provide insurance:

19-24                (1)  in the amounts and under the conditions that apply

19-25    to secondary mortgage loans as provided by Articles 5.02 and 5.03

 20-1    of this title;

 20-2                (2)  in the amounts and under the terms and conditions

 20-3    of:

 20-4                      (A)  the home equity conversion mortgage

 20-5    insurance program under the Housing and Community Development Act

 20-6    of 1987 (Pub. L. No. 100-242);

 20-7                      (B)  Section 255, National Housing Act (12 U.S.C.

 20-8    Section 1715z-20); and

 20-9                      (C)  24 C.F.R. Part 206; and

20-10                (3)  in the amounts and under the terms and conditions

20-11    provided for by any state or federal statute authorizing or

20-12    requiring any type of insurance relating to a loan or other

20-13    extension of credit, including insurance authorized under Chapters

20-14    3, 4, 5, and 15 of this title.

20-15          (b)  Premiums for insurance under this article may be added

20-16    to the loan contract.

20-17          Art. 5A.25.  LENDER'S DUTY TO BORROWER.  (a)  The lender

20-18    under an equity loan shall deliver to the borrower, or to one of

20-19    the borrowers if there are more than one, a copy of the note or the

20-20    contract for an open-end account, a copy of all other documents

20-21    signed by the borrower or borrowers, and a written statement of:

20-22                (1)  the name and address of each borrower and of the

20-23    lender; and

20-24                (2)  each type of insurance, if any, for which a charge

20-25    to a borrower is included in the loan agreement and the amount of

 21-1    the charge for the insurance.

 21-2          (b)  If the note or another loan document contains the

 21-3    information required by Subsection (a) of this article, a copy of

 21-4    the note or document may be delivered to the borrower rather than

 21-5    the separate written statement.

 21-6          (c)  If requested by the borrower, the lender shall give a

 21-7    receipt to a person making a cash payment on an equity loan.

 21-8          (d)  Except as prohibited by Articles 1.07 and 5A.16 of this

 21-9    title or by applicable federal law, a prepayment fee, charge, or

21-10    penalty may be collected on an equity loan.

21-11          (e)  On termination and full payment of an equity loan, the

21-12    holder shall within a reasonable time:

21-13                (1)  cancel and return any note to the borrower and

21-14    give the borrower a release of any mortgage, deed of trust,

21-15    security instrument, or other instrument securing the loan; or

21-16                (2)  endorse the note and assign any mortgage, deed of

21-17    trust, or other security instrument to a refinancing lender who

21-18    advances funds to discharge the equity loan indebtedness at the

21-19    request of the borrower and in renewal and extension of the

21-20    security instrument.

21-21          Art. 5A.26.  PROHIBITED PRACTICES.  (a)  A lender may not

21-22    accept an assignment of wages as security for a loan made under

21-23    this chapter.

21-24          (b)  In connection with an equity loan, a lender may not

21-25    accept a confession of judgment or power of attorney running to the

 22-1    lender or to a third person to confess judgment or to appear for a

 22-2    borrower in a judicial proceeding.

 22-3          (c)  A lender may not accept an instrument in which blanks

 22-4    are left to be filled in after an equity loan is executed.

 22-5          Art. 5A.27.  OWNER ACKNOWLEDGMENT.  A lienholder or assignee

 22-6    for value may conclusively rely on an acknowledgment by the owner

 22-7    of homestead property and the owner's spouse, if the owner is

 22-8    married, of compliance with applicable requirements for an equity

 22-9    loan secured by a mortgage, trust deed, or other lien on a

22-10    homestead.

22-11          Art. 5A.28.  REPORT BY LENDERS.  (a)  Before March 1 of each

22-12    year, a lender that makes an equity loan shall submit to the

22-13    director of the division of access to financial services a report

22-14    of the lender's home equity loan activity during the calendar year

22-15    preceding the year the report is submitted.  For each home equity

22-16    loan for which the lender received an application, the report must

22-17    state the primary purpose of the loan, whether the loan was

22-18    granted, and the applicant's income and census tract.  The director

22-19    of the division of access to financial services may set and collect

22-20    from the lender a reasonable filing fee in connection with the

22-21    submission of the report in an amount necessary and reasonable to

22-22    enable the director of the division of access to financial services

22-23    to carry out this article.

22-24          (b)  The director of the division of access to financial

22-25    services may accept a copy of a report submitted by the lender to a

 23-1    federal agency instead of the report required under Subsection (a)

 23-2    of this article if the report submitted to the federal agency

 23-3    contains the information required for a report under Subsection (a)

 23-4    of this article.

 23-5          (c)  A lender that does not make a home equity loan during

 23-6    the period covered by a report is not required to submit the

 23-7    report.

 23-8          Art. 5A.29.  EQUITY LOAN RECOVERY FUND.  (a)  The Consumer

 23-9    Credit Commissioner shall establish and maintain an equity loan

23-10    recovery fund.  Money in the fund shall be used for reimbursing

23-11    aggrieved persons who suffer actual damages that:

23-12                (1)  result from misrepresentation, dishonesty, or

23-13    fraud committed by an authorized lender in the course of making an

23-14    equity loan; and

23-15                (2)  are ordered by a court against a lender that the

23-16    court determines is unable to make the payment.

23-17          (b)  An action for a judgment that subsequently results in an

23-18    order for collection from the equity loan recovery fund may not be

23-19    started later than two years after the date of accrual of the cause

23-20    of action.

23-21          (c)  Money received by the Consumer Credit Commissioner for

23-22    deposit in the equity loan recovery fund shall be held by the

23-23    Consumer Credit Commissioner in trust for carrying out the purposes

23-24    of the fund.

23-25          (d)  The finance commission shall establish and collect

 24-1    reasonable and necessary fees from each authorized lender for each

 24-2    home equity loan originated by the lender to accomplish the

 24-3    purposes of this article.  Fees collected shall be deposited into

 24-4    the fund.

 24-5          (e)  The finance commission shall adopt rules necessary to

 24-6    implement this article.

 24-7          SECTION 3.  Chapter 2, Title 79, Revised Statutes (Article

 24-8    5069-2.01 et seq., Vernon's Texas Civil Statutes), is amended by

 24-9    adding Articles 2.02E and 2.02F to read as follows:

24-10          Art. 2.02E.  DIVISION OF ACCESS TO FINANCIAL SERVICES.

24-11    (a)  The division of access to financial services is created in the

24-12    Office of Consumer Credit Commissioner to inform, monitor, and

24-13    report on the availability and quality of home equity loans,

24-14    including equity loans offered by lenders in the state to

24-15    agricultural businesses, small businesses, and individual consumers

24-16    in the state.

24-17          (b)  The division shall be administered by a director

24-18    appointed by the Consumer Credit Commissioner.

24-19          (c)  The director shall adequately staff the division to

24-20    carry out the division's functions under this article.

24-21          (d)  The division shall:

24-22                (1)  conduct research on the effect of equity lending

24-23    on the availability, quality, and cost of equity loans for

24-24    agricultural businesses, small businesses, and individual consumers

24-25    in various regions of the state;

 25-1                (2)  conduct research on the effect of the practices of

 25-2    business entities in the state that provide equity loans to

 25-3    agricultural businesses, small businesses, and individual consumers

 25-4    in the state;

 25-5                (3)  conduct a public information campaign to provide

 25-6    low-income and elderly consumers with information and counseling

 25-7    about the benefits and liabilities associated with equity loans;

 25-8                (4)  compile a summary of the information received from

 25-9    each lender under Article 5A.28 of this title, including an

25-10    analysis of census tract demographic data, to produce reports on

25-11    equity-lending patterns with regard to the rate of application and

25-12    loan acceptance by income and census tract of the home; and

25-13                (5)  not later than December 1 of each even-numbered

25-14    year, provide to the legislature a report detailing the findings of

25-15    the division and recommending any action the division believes is

25-16    necessary to protect consumers with respect to equity lending.

25-17          (e)  The division shall prepare information of public

25-18    interest describing the functions of the division and make the

25-19    information available to the public and appropriate state and

25-20    federal agencies.

25-21          (f)  The division may:

25-22                (1)  apply for and receive public and private grants

25-23    and gifts; and

25-24                (2)  contract with public and private entities to carry

25-25    out studies and analyses under this article.

 26-1          (g)  The Consumer Credit Commissioner shall establish and

 26-2    collect reasonable and necessary fees to accomplish the purposes of

 26-3    this article.

 26-4          Art. 2.02F.  STUDY AND REPORT; EQUITY LOANS.  (a)  After May

 26-5    1, 2000, the director of the division of access to financial

 26-6    services shall conduct a study of equity lending under Chapter 5A

 26-7    of this title.

 26-8          (b)  Before January 1, 2001, the director of the division of

 26-9    access to financial services shall submit a report on its study to

26-10    the governor, lieutenant governor, and speaker of the house of

26-11    representatives.  The report must include:

26-12                (1)  a summary of the information received by the

26-13    director of the division of access to financial services under

26-14    Article 5A.28 of this title;

26-15                (2)  an analysis of the effectiveness of the provisions

26-16    of Chapter 5A of this title; and

26-17                (3)  other information the director of the division of

26-18    access to financial services considers relevant to the regulation

26-19    of equity loans.

26-20          (c)  This section expires January 2, 2001.

26-21          SECTION 4.  Article 9.02, Insurance Code, is amended by

26-22    adding Subsection (r) to read as follows:

26-23          (r)  "Equity loan mortgagee policy" means a mortgagee policy

26-24    of title insurance that insures the validity and priority of a

26-25    security interest in homestead property securing an equity loan, as

 27-1    defined by Article 5A.01, Title 79, Revised Statutes (Article

 27-2    5069-5A.01, Vernon's Texas Civil Statutes).

 27-3          SECTION 5.  Article 9.07, Insurance Code, is amended by

 27-4    adding Subsection (g) to read as follows:

 27-5          (g)  The commissioner shall promulgate an endorsement that

 27-6    must be attached to an equity loan mortgagee policy.  The

 27-7    endorsement must insure the priority of future advances made in

 27-8    accordance with the document creating the security interest and

 27-9    applicable law, subject to any legal limits on priority and to the

27-10    other terms of the policy.  The endorsement must insure the

27-11    validity of the security interest, subject to the terms of the

27-12    policy and to an exclusion for compliance by the lender with any

27-13    constitutional or statutory requirements for, and limitations on,

27-14    equity loans secured by a security interest in a homestead.  The

27-15    endorsement must affirmatively insure against invalidity of the

27-16    security interest because of the failure of each owner and the

27-17    spouse of each owner to join in the document creating the security

27-18    interest.  The commissioner may promulgate other policies and

27-19    endorsements relating to an equity loan security interest in a

27-20    homestead.

27-21          SECTION 6.  This Act takes effect January 1, 1998, but only

27-22    if the constitutional amendment proposed by __J.R. No. __, Acts of

27-23    the 75th Legislature, Regular Session, 1997, allowing voluntary,

27-24    consensual encumbrances on homestead property for the purpose of

27-25    equity loans, is approved by the voters.  If that amendment is not

 28-1    approved by the voters, this Act has no effect.

 28-2          SECTION 7.  The importance of this legislation and the

 28-3    crowded condition of the calendars in both houses create an

 28-4    emergency and an imperative public necessity that the

 28-5    constitutional rule requiring bills to be read on three several

 28-6    days in each house be suspended, and this rule is hereby suspended.