By:  Patterson, Ellis                                 S.J.R. No. 12

              Armbrister, West

                               SENATE JOINT RESOLUTION

 1-1     proposing a constitutional amendment authorizing a voluntary,

 1-2     consensual encumbrance on homestead property for the purpose of an

 1-3     equity loan.

 1-4           BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Section 50, Article XVI, Texas Constitution, is

 1-6     amended to read as follows:

 1-7           Sec. 50.  (a)  The homestead of a family, or of a single

 1-8     adult person, shall be, and is hereby protected from forced sale,

 1-9     for the payment of all debts except for:

1-10                 (1)  the purchase money thereof, or a part of such

1-11     purchase money;

1-12                 (2)  [,]  the taxes due thereon;

1-13                 (3)  [,]  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;

1-18                 (4)  [,] 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;

1-22                 (5)  [, or for] work and material used in constructing

1-23     improvements thereon, if [and in this last case only when] the work

 2-1     and material are contracted for in writing, with the consent of

 2-2     both spouses, in the case of a family homestead, given in the same

 2-3     manner as is required in making a sale and conveyance of the

 2-4     homestead; or

 2-5                 (6)  an equity loan.

 2-6           (b)  The [nor may the] owner or claimant of the property

 2-7     claimed as homestead, if married, may not sell or abandon the

 2-8     homestead without the consent of the other spouse, given in such

 2-9     manner as may be prescribed by law.

2-10           (c)  No mortgage, trust deed, or other lien on the homestead

2-11     shall ever be valid, except for a debt described by this section,

2-12     whether such mortgage, or trust deed, or other lien, shall have

2-13     been created by the owner alone, or together with his or her

2-14     spouse, in case the owner is married.  All pretended sales of the

2-15     homestead involving any condition of defeasance shall be void.  A

2-16     purchaser or lender for value without actual knowledge may

2-17     conclusively rely on an affidavit that designates other property as

2-18     the homestead of the affiant and that states that the property to

2-19     be conveyed or encumbered is not the homestead of the affiant.

2-20           (d)  An equity loan may be made, originated, negotiated, or

2-21     arranged only by:

2-22                 (1)  a bank, savings and loan association, savings

2-23     bank, or credit union doing business under the laws of this state

2-24     or the United States;

2-25                 (2)  a person licensed to make regulated loans, as

 3-1     provided by statute;

 3-2                 (3)  a person approved as a mortgagee by the United

 3-3     States government to make federally insured loans, as determined by

 3-4     statute; or

 3-5                 (4)  a person contracted to make, originate, or arrange

 3-6     loans qualified for purchase by the Federal National Mortgage

 3-7     Association or Federal Home Loan Mortgage Corporation.

 3-8           (e)  An equity loan may not be secured by homestead property

 3-9     that is designated for agricultural use, as provided by statutes

3-10     governing property tax.

3-11           (f)  An equity loan may not be in the form of a credit card

3-12     transaction, as defined by statute.

3-13           (g)  At any time, a homestead may not be encumbered by more

3-14     than one equity loan in addition to any valid encumbrances on the

3-15     homestead property authorized by Subsection (a)(1), (2), (3), (4),

3-16     or (5) of this section.

3-17           (h)  A lender may not require or accept real or personal

3-18     property as additional collateral on an equity loan, except for a

3-19     manufactured home, personal property affixed or to be affixed to

3-20     the homestead in a manner that would make the property a fixture,

3-21     or rents derived from the homestead property.  Only the homestead

3-22     property securing an equity loan may be collateral for the equity

3-23     loan.

3-24           (i)  A lender may not require or accept a borrower's

3-25     homestead property, regardless of whether the property was

 4-1     previously encumbered by an existing equity loan, as collateral on

 4-2     a debt not described by Subsection (a) of this section.

 4-3           (j)  The committed principal amount of an equity loan plus

 4-4     the aggregate total of the outstanding balances of other

 4-5     indebtedness secured by valid encumbrances of record against the

 4-6     homestead property may not exceed 90 percent of the fair market

 4-7     value of the homestead property on the date the equity loan is

 4-8     closed.  Violation of this subsection does not affect the validity

 4-9     of other indebtedness secured by valid encumbrances of record

4-10     against the homestead property.

4-11           (k)  For the purposes of Subsection (j) of this section, the

4-12     aggregate total of the outstanding balances of indebtedness secured

4-13     by valid encumbrances of record against the homestead property does

4-14     not include any advance made by a lender to protect a lien,

4-15     security interest, or other valid encumbrance on the homestead

4-16     property securing the loan, including the payment of hazard

4-17     insurance premiums, repairs to the homestead property, or payments

4-18     on any indebtedness secured by a prior valid encumbrance on the

4-19     homestead property.

4-20           (l)  A lender may not accelerate the remaining payments of an

4-21     equity loan or demand payment of the loan in full because of a

4-22     decrease in the market value of the homestead property securing the

4-23     equity loan, unless the decrease in the market value is caused by

4-24     substantial damage or destruction to the property, condemnation or

4-25     other taking of the property, the discovery of an environmental

 5-1     hazard on the property, or the use of the property in a manner that

 5-2     constitutes waste on the property or a nuisance.  This section does

 5-3     not prohibit a lender, if permitted by the loan documents, from

 5-4     refusing to make additional advances under an equity loan, other

 5-5     than a reverse mortgage, if the value of the homestead property

 5-6     decreases, regardless of the cause of the decrease.

 5-7           (m)  A lender may not accelerate the remaining payments of an

 5-8     equity loan or demand payment of the loan in full because of the

 5-9     borrower's default under any other indebtedness not secured by a

5-10     prior valid encumbrance on the homestead property, regardless of

5-11     whether the indebtedness is owed to the lender.  This section does

5-12     not prohibit a lender, if permitted by the loan documents, from

5-13     refusing to make additional advances under an equity loan, other

5-14     than a reverse mortgage, if the borrower has defaulted in the

5-15     performance or payment of another indebtedness owed to the lender

5-16     or another creditor.

5-17           (n)  A lienholder or assignee for value may conclusively rely

5-18     on an acknowledgment by the owner of homestead property and the

5-19     owner's spouse, if the owner is married, of compliance with

5-20     applicable requirements for an equity loan secured by a mortgage,

5-21     trust deed, or other lien on a homestead.

5-22           (o)  In this section:

5-23                 (1)  "Blended equity loan" means an equity loan made

5-24     for:

5-25                       (A)  the payment or refinancing of all or part of

 6-1     the purchase money of a homestead, taxes on homestead property, a

 6-2     federal tax lien on homestead property, an owelty of partition

 6-3     imposed against homestead property, or the work and material used

 6-4     in constructing improvements on a homestead or for the refinance of

 6-5     any other lien against the homestead; and

 6-6                       (B)  another purpose.

 6-7                 (2)  "Equity loan" means an extension of credit under a

 6-8     written agreement, including a contract for an open-end account,

 6-9     blended equity loan, or reverse mortgage, that is:

6-10                       (A)  secured in whole or in part by a voluntary

6-11     lien on or other consensual security interest in a homestead; and

6-12                       (B)  created with the consent of each owner and

6-13     the spouse of each owner, in accordance with applicable statutory

6-14     requirements.

6-15                 (3)  "Reverse mortgage" means a nonrecourse equity

6-16     loan:

6-17                       (A)  under which advances are provided to a

6-18     borrower based on the equity in a borrower's residence homestead

6-19     property; and

6-20                       (B)  that requires no payment of principal or

6-21     interest until the entire loan becomes due and payable.

6-22           SECTION 2.  The following temporary provision is added to the

6-23     Texas Constitution:

6-24           TEMPORARY PROVISION.  (a)  This temporary provision applies

6-25     to the constitutional amendment proposed by the 75th Legislature,

 7-1     Regular Session, 1997, authorizing a voluntary, consensual

 7-2     encumbrance on homestead property.

 7-3           (b)  The constitutional amendment takes effect January 1,

 7-4     1998.

 7-5           (c)  This temporary provision takes effect on the adoption of

 7-6     the amendment by the voters and expires January 2, 1998.

 7-7           SECTION 3.  This proposed constitutional amendment shall be

 7-8     submitted to the voters at an election to be held November 4, 1997.

 7-9     The ballot shall be printed to permit voting for or against the

7-10     proposition:  "The constitutional amendment extending homeowners'

7-11     rights to borrow voluntarily against the equity in, and establish a

7-12     valid lien on, their homesteads according to specific guidelines

7-13     for purposes in addition to those currently provided for under

7-14     state law without affecting homestead tax exemptions or eliminating

7-15     existing homestead protections against involuntary liens and

7-16     judgment creditors."