By:  Harris                                           S.B. No. 1742
         Line and page numbers may not match official copy.
         Bill not drafted by TLC or Senate E&E.
                                A BILL TO BE ENTITLED
                                       AN ACT
 1-1     relating to certain proceedings in a foreclosure action.
 1-2           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-3           SECTION 1.  Section 51.002, Property Code, is amended to read
 1-4     as follows:
 1-5           (a)  A sale of real property under a power of sale conferred
 1-6     by a deed of trust, security instrument or other contract lien must
 1-7     be a public sale at auction held between 10 a.m. and 4 p.m. of the
 1-8     first Tuesday of a month.  The sale must take place at the county
 1-9     courthouse in the county in which the land is located, or if the
1-10     property is located in more than one county, the sale may be made
1-11     at the courthouse in any county in which the property is located.
1-12     The commissioners court shall designate the area at the courthouse
1-13     where the sales are to take place and shall record the designation
1-14     in the real property records of the county.  The sale must occur in
1-15     the designated area.  If no area is designated by the commissioners
1-16     court, the notice of sale must designate the area at the courthouse
1-17     where the sale covered by that notice is to take place, and the
1-18     sale must occur in that area.
1-19           (b)  Notice of the sale, which must include a statement of
1-20     the earliest time at which the sale will begin, must be given at
1-21     least 21 days before the date of the sale:
1-22                 (1)  by posting at the courthouse door of each county
 2-1     in which the property is located a written notice designating the
 2-2     county in which the property will be sold;
 2-3                 (2)  by filing in the office of the county clerk of
 2-4     each county in which the property is located a copy of the notice
 2-5     posted under Subdivision (1); and
 2-6                 (3)  by the mortgagee or its attorney, agent or
 2-7     representative serving written notice of the foreclosure sale by
 2-8     certified mail on each mortgagor [holder of the debt to which the
 2-9     power of sale is related serving written notice of the sale by
2-10     certified mail on each debtor] who, according to the records of the
2-11     holder of the mortgagee [debt], is obligated to pay the debt.
2-12           (c)  The sale must begin at the time stated in the notice of
2-13     sale or not later than three hours after that time.
2-14           (d)  Notwithstanding any agreement to the contrary, the
2-15     mortgagee or its attorney, agent or representative shall serve a
2-16     mortgagor [the holder of the debt shall serve a debtor] in default
2-17     under the terms of the note secured by a deed of trust, security
2-18     instrument or other contract lien on real property used as the
2-19     mortgagor's [debtor's] residence with written notice by certified
2-20     mail stating that the mortgagor [debtor] is in default [under the deed
2-21     of trust or other contract lien] and giving the debtor at least 20
2-22     days to cure the default before notice of sale can be given under
2-23     Subsection (b).  [The entire calendar day on which the notice
2-24     required by this subsection is given, regardless of the time of day
2-25     at which the notice is given, is included in computing the 20-day
2-26     notice period required by this subsection, and the entire calendar
 3-1     day on which notice of sale is given under Subsection (b) is
 3-2     excluded in computing the 20-day notice period.]
 3-3           (e)  Service of a notice under this section by certified mail
 3-4     is complete when the notice is deposited in the United States mail,
 3-5     postage prepaid and addressed to the mortgagor at the property
 3-6     securing the debt, unless the mortgagee has received, at least 20
 3-7     days before a foreclosure notice is served, a written notice from
 3-8     mortgagor designating a different address for mortgagor for
 3-9     purposes of notice under the terms of the security instrument.  One
3-10     notice may be mailed to all mortgagors residing at the same
3-11     address. [debtor at the debtor's last known address as shown by the
3-12     records of the holder of the debt.]  The affidavit of a person
3-13     knowledgeable of the facts to the effect that service was completed
3-14     is prima facie evidence of service.
3-15           (f)  Each county clerk shall keep all notices filed under
3-16     Subdivision (2) of Subsection (b) in a convenient file that is
3-17     available to the public for examination during normal business
3-18     hours.  The clerk may dispose of the notices after the date of sale
3-19     specified in the notice has passed.  The clerk shall receive a fee
3-20     of $2 for each notice filed.
3-21           (g)  The entire calendar day on which any foreclosure notice
3-22     [the notice of sale] is given, regardless of the time of day at which
3-23     the notice is given, is included in computing any foreclosure [the
3-24     21-day] notice period required, except that [by Subsection (b) and]
3-25     the entire calendar day of the foreclosure sale is excluded.
3-26           (h)  After acceleration of the maturity of the debt, a
 4-1     foreclosure sale shall be discontinued if at least 5 days before
 4-2     the scheduled sale date the mortgagee receives (1) all sums and
 4-3     advances then due under the terms of the note and security
 4-4     instrument as if acceleration had not occurred; and (2) payment of
 4-5     all collection costs, expenses and advances permitted upon
 4-6     mortgagor's default under the terms of the note and security
 4-7     instrument; and (3) the mortgagor timely cures any other default
 4-8     under the terms of the note and security instrument.  Otherwise,
 4-9     after acceleration, only payment of the matured amount due under
4-10     the note and security instrument, including all collection costs,
4-11     expenses and advances permitted upon mortgagor's default, will cure
4-12     the default and prevent the scheduled foreclosure.  Upon the cure
4-13     of a default, any prior acceleration is canceled and the note and
4-14     security instrument remain enforceable.
4-15           (i)  The sale of any real property and improvements at a
4-16     foreclosure sale is "as is" without any implied representations or
4-17     warranties.  A purchaser obtains only such title as the trustee had
4-18     actual authority to convey and is not a good faith purchaser for
4-19     value without notice.  Upon actual notice of any fact indicating
4-20     the trustee did not have authority to convey the foreclosed
4-21     property, the trustee shall file within sixty days of receipt of
4-22     such notice a rescission canceling the trustee's deed in the
4-23     official real property records of the county where the property is
4-24     located.
4-25           (j)  A mortgagee may appoint by power of attorney or
4-26     resolution an individual residing in Texas or a law firm composed
 5-1     of Texas licensed attorneys to select one or more substitute
 5-2     trustees for all security instruments for which mortgagee has the
 5-3     power to appoint a substitute trustee, by filing such instrument in
 5-4     the real property records of the county where the security
 5-5     instrument is filed or the secured property is located.  The power
 5-6     of attorney or resolution must give the name, street address and
 5-7     phone number of the Texas resident or law firm designated to select
 5-8     the successor or substitute trustee on mortgagees' behalf.  A
 5-9     notice of sale required by Subsection (b) shall contain the volume
5-10     and page, clerk's file number or other real property record's
5-11     identification number where the power of attorney or resolution is
5-12     filed and the name, street address and phone number of the
5-13     individual or law firm which the mortgagee has authorized to
5-14     appoint one or more substitute trustees.  The substitute trustee,
5-15     whether one or more, who is appointed to exercise the powers of the
5-16     trustee in the security instrument, must be identified by name,
5-17     street address and phone number in the notice required by
5-18     Subsection (b).
5-19           SECTION 2.  Chapter 51, Property Code, is amended by adding
5-20     Section 51.007 to read as follows:
5-21           Sec. 51.007.  TRUSTEE UNDER SECURITY INSTRUMENT.  (a)  A
5-22     trustee named in a suit or proceeding related to a foreclosure may
5-23     file a verified objection to being named as a party by stating the
5-24     basis for the trustee's reasonable belief that the trustee was
5-25     named solely in the capacity as a trustee and not for any wrongful
5-26     act or omission in the performance of the trustee's duties.
 6-1           (b)  Within twenty-one days after the filing date of the
 6-2     trustee's objection, each party to the suit or proceeding shall
 6-3     file a verified response setting forth the party's factual basis
 6-4     for belief that the trustee was named as a party for reasons other
 6-5     than in the capacity as trustee.
 6-6           (c)  In the event a response to the trustee's objection is
 6-7     not properly or timely filed, the trustee shall be dismissed as to
 6-8     each non-responding party's claims in the suit or proceeding and
 6-9     the trustee shall not be subject to any monetary award for damages,
6-10     attorneys' fees or costs as to that party.
6-11           (d)  In the event a proper response to the trustee's
6-12     objection is filed, a hearing date shall be obtained by the
6-13     trustee.  Based upon a preponderance of the credible evidence
6-14     presented, the court shall dismiss the trustee from the suit or
6-15     proceeding without prejudice if the court determines the trustee
6-16     was named as a party solely in the capacity as trustee.
6-17           (e)  A trustee shall incur no liability for any good faith
6-18     error resulting from reliance on any information provided by the
6-19     mortgagor, mortgagee or their respective attorney, agent,
6-20     representative or other third party.
6-21           SECTION 3.  (a)  This Act takes effect September 1, 1999.
6-22           (b)  The changes in law made by this Act apply only to
6-23     foreclosure actions instituted on or after the effective date of
6-24     this Act.
6-25           SECTION 4.  The importance of this legislation and the
6-26     crowded condition of the calendars in both houses create an
 7-1     emergency and an imperative public necessity that the
 7-2     constitutional rule requiring bills to be read on three several
 7-3     days in each house be suspended, and this rule is hereby suspended.