By:  Carona                                           S.J.R. No. 42
         Line and page numbers may not match official copy.
         Bill not drafted by TLC or Senate E&E.
 1-1                           SENATE JOINT RESOLUTION
 1-2     proposing a constitutional amendment correcting technical errors in
 1-3     home equity lien provisions of the Texas Constitution and
 1-4     clarifying a lender's ability to cure certain violations of the
 1-5     home equity lien provisions.
 1-6           BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-7           SECTION 1.  Section 50(a), Article XVI, Texas Constitution,
 1-8     is amended to read as follows:
 1-9           (a)  The homestead of a family, or of a single adult person,
1-10     shall be, and is hereby protected from forced sale, for the payment
1-11     of all debts except for:
1-12                 (1)  the purchase money thereof, or a part of such
1-13     purchase money;
1-14                 (2)  the taxes due thereon;
1-15                 (3)  an owelty of partition imposed against the
1-16     entirety of the property by a court order or by a written agreement
1-17     of the parties to the partition, including a debt of one spouse in
1-18     favor of the other spouse resulting from a division or an award of
1-19     a family homestead in a divorce proceeding;
1-20                 (4)  the refinance of a lien against a homestead,
1-21     including a federal tax lien resulting from the tax debt of both
1-22     spouses, if the homestead is a family homestead, or from the tax
 2-1     debt of the owner;
 2-2                 (5)  work and material used in constructing new
 2-3     improvements thereon, if contracted for in writing, or work and
 2-4     material used to repair or renovate existing improvements thereon
 2-5     if:
 2-6                       (A)  the work and material are contracted for in
 2-7     writing, with the consent of both spouses, in the case of a family
 2-8     homestead, given in the same manner as is required in making a sale
 2-9     and conveyance of the homestead;
2-10                       (B)  the contract for the work and material is
2-11     not executed by the owner or the owner's spouse before the 12th day
2-12     after the owner makes written application for any extension of
2-13     credit for the work and material, unless the work and material are
2-14     necessary to complete immediate repairs to conditions on the
2-15     homestead property that materially affect the health or safety of
2-16     the owner or person residing in the homestead and the owner of the
2-17     homestead acknowledges such in writing;
2-18                       (C)  the contract for the work and material
2-19     expressly provides that the owner may rescind the contract without
2-20     penalty or charge within three days after the execution of the
2-21     contract by all parties, unless the work and material are necessary
2-22     to complete immediate repairs to conditions on the homestead
2-23     property that materially affect the health or safety of the owner
2-24     or person residing in the homestead and the owner of the homestead
2-25     acknowledges such in writing; and
2-26                       (D)  the contract for the work and material is
 3-1     executed by the owner and the owner's spouse only at the office of
 3-2     a third-party lender making an extension of credit for the work and
 3-3     material, an attorney at law, or a title company;
 3-4                 (6)  an extension of credit that:
 3-5                       (A)  is secured by a voluntary lien on the
 3-6     homestead created under a written agreement with the consent of
 3-7     each owner and each owner's spouse;
 3-8                       (B)  is of a principal amount that when added to
 3-9     the aggregate total of the outstanding principal balances of all
3-10     other indebtedness secured by valid encumbrances of record against
3-11     the homestead and other collateral permitted under Subsection
3-12     (a)(6)(H) does not exceed 80 percent of the fair market value of
3-13     the homestead and other collateral permitted under Subsection
3-14     (a)(6)(H) on the date the extension of credit is made unless the
3-15     extension of credit is made for the purpose described in Subsection
3-16     (a)(6)(S)(iii) or Subsection (t) of this section;
3-17                       (C)  is without recourse for personal liability
3-18     against each owner and the spouse of each owner, unless the owner
3-19     or spouse obtained the extension of credit by actual fraud;
3-20                       (D)  is secured by a lien that may be foreclosed
3-21     upon only by a court order;
3-22                       (E)  does not require the owner or the owner's
3-23     spouse to pay[, in addition to any interest,] fees other than
3-24     interest, late fees, returned check fees, and costs of foreclosure
3-25     to any person that are necessary to originate, evaluate, maintain,
3-26     record, [insure,] or service the extension of credit that exceed,
 4-1     in the aggregate, three percent of the original principal amount of
 4-2     the extension of credit;
 4-3                       (F)  is not a form of open-end account that may
 4-4     be debited from time to time or under which credit may be extended
 4-5     from time to time;
 4-6                       (G)  is payable in advance without penalty or
 4-7     other charge;
 4-8                       (H)  is not secured by any additional real or
 4-9     personal property other than the land and improvements that the
4-10     borrower claims as homestead and any property or rights appurtenant
4-11     to the land and improvements;
4-12                       (I)  is not secured by homestead property
4-13     designated for agricultural use as provided by statutes governing
4-14     property tax, unless such homestead property is used primarily for
4-15     the production of milk;
4-16                       (J)  may not be accelerated because of a decrease
4-17     in the market value of the homestead or because of the owner's
4-18     default under other indebtedness not secured by a prior valid
4-19     encumbrance against the homestead;
4-20                       (K)  is the only debt secured by the homestead at
4-21     the time the extension of credit is made unless the other debt was
4-22     made for a purpose described by Subsections (a)(1)-(a)(5) of this
4-23     section;
4-24                       (L)  is scheduled to be repaid in substantially
4-25     equal successive monthly installments beginning no later than two
4-26     months from the date the extension of credit is made, each of which
 5-1     equals or exceeds the amount of accrued interest as of the date of
 5-2     the scheduled installment;
 5-3                       (M)  is closed not before:
 5-4                             (i)  the 12th day after the later of the
 5-5     date that the owner of the homestead submits an application to the
 5-6     lender for the extension of credit or the date that the lender
 5-7     provides the owner a copy of the notice prescribed by Subsection
 5-8     (g) of this section; and
 5-9                             (ii)  the first anniversary of the closing
5-10     date of any other extension of credit described by Subsection
5-11     (a)(6) of this section secured by the same homestead property
5-12     unless the extension of credit is made for the purpose described in
5-13     Subsection (a)(6)(S)(iii) or Subsection (t) of this section;
5-14                       (N)  is closed only at the office of the lender,
5-15     an attorney at law, or a title company;
5-16                       (O)  permits a lender to contract for and receive
5-17     any fixed or variable rate of interest authorized under statute;
5-18                       (P)  is made by one of the following that has not
5-19     been found by a federal regulatory agency to have engaged in the
5-20     practice of refusing to make loans because the applicants for the
5-21     loans reside or the property proposed to secure the loans is
5-22     located in a certain area:
5-23                             (i)  a bank, savings and loan association,
5-24     savings bank, or credit union doing business under the laws of this
5-25     state or the United States;
5-26                             (ii)  a federally chartered lending
 6-1     instrumentality or a person approved as a mortgagee by the United
 6-2     States government to make federally insured loans;
 6-3                             (iii)  a person licensed to make regulated
 6-4     loans, as provided by statute of this state;
 6-5                             (iv)  a person who sold the homestead
 6-6     property to the current owner and who provided all or part of the
 6-7     financing for the purchase; or
 6-8                             (v)  a person who is related to the
 6-9     homestead property owner within the second degree of affinity or
6-10     consanguinity; [and]
6-11                       (Q)  does not require the owner of the homestead
6-12     to [is made on the condition that]:
6-13                             (i)  [the owner of the homestead is not
6-14     required to] apply the proceeds of the extension of credit to repay
6-15     another debt except debt secured by the homestead or debt to
6-16     another lender;
6-17                             (ii)  [the owner of the homestead not]
6-18     assign wages as security for the extension of credit;
6-19                             (iii)  [the owner of the homestead not]
6-20     sign any instrument in which blanks are left to be filled in; or
6-21                             (iv)  [the owner of the homestead not] sign
6-22     a confession of judgment or power of attorney to the lender or to a
6-23     third person to confess judgment or to appear for the owner in a
6-24     judicial proceeding;
6-25                       (R)  complies with the requirement that:
6-26                             (i)   [(v)]  the lender, at the time the
 7-1     extension of credit is made, provide the owner of the homestead a
 7-2     copy of all documents signed by the owner related to the extension
 7-3     of credit; and
 7-4                             (ii)  the owner of the homestead and the
 7-5     lender sign a written acknowledgment as to the fair market value of
 7-6     the homestead property on the date the extension of credit is made;
 7-7                       (S)   is secured by security instruments that:
 7-8     [(vi)  the security instruments securing the extension of credit]
 7-9                             (i)  contain a disclosure that the
7-10     extension of credit is the type of credit defined by Section
7-11     50(a)(6), Article XVI, Texas Constitution;
7-12                             (ii)  provide that the lender shall,
7-13     [(vii)] within a reasonable time after termination and full payment
7-14     of the extension of credit, [the lender] cancel and return the
7-15     promissory note to the owner of the homestead and give the owner,
7-16     in recordable form, a release of the lien securing the extension of
7-17     credit or a copy of an endorsement and assignment of the lien to a
7-18     lender that is refinancing the extension of credit;
7-19                             [(viii)  the owner of the homestead and any
7-20     spouse of the owner may, within three days after the extension of
7-21     credit is made, rescind the extension of credit without penalty or
7-22     charge;]
7-23                             [(ix)  the owner of the homestead and the
7-24     lender sign a written acknowledgment as to the fair market value of
7-25     the homestead property on the date the extension of credit is
7-26     made;] and
 8-1                             (iii)  provide that if the lender or holder
 8-2     of the note for the extension of credit fails to comply with the
 8-3     lender's or holder's obligations under the extension of credit, the
 8-4     lender or holder shall forfeit all principal and interest of the
 8-5     extension of credit unless the failure to comply is not a bad faith
 8-6     failure to comply and the lender or holder, not later than 60 days
 8-7     after the lender or holder actually discovers the failure to
 8-8     comply, either corrects the failure to comply or, if the failure to
 8-9     comply is not capable of correction, offers the owner of the
8-10     homestead the right to elect one of the following within 90 days
8-11     from the date the owner of the homestead receives the offer:
8-12                                   (I)  a right to refinance the
8-13     outstanding principal balance of the extension of credit with the
8-14     lender or holder at no cost to the owner of the homestead and on
8-15     the same terms, including the interest rate, as the original
8-16     extension of credit with any modifications necessary to comply with
8-17     this section or on terms otherwise acceptable to the owner of the
8-18     homestead and the lender or holder; or
8-19                                   (II)  payment from the lender or
8-20     holder in an amount equal to the greater of $500 or the owner's
8-21     actual damages caused by the failure to comply; and [(x)  the
8-22     lender or any holder of the note for the extension of credit shall
8-23     forfeit all principal and interest of the extension of credit if
8-24     the lender or holder fails to comply with the lender's or holder's
8-25     obligations under the extension of credit within a reasonable time
8-26     after the lender or holder is notified by the borrower of the
 9-1     lender's failure to comply;]
 9-2                       (T)  permits the owner of the homestead and any
 9-3     spouse of the owner to rescind the extension of credit without
 9-4     penalty or charge within three days after the extension of credit
 9-5     is made; or
 9-6                 (7)  a reverse mortgage.
 9-7           SECTION 2.  Section 50(e)-(g), Article XVI, Texas
 9-8     Constitution, is amended to read as follows:
 9-9           (e)  If a [A] refinance of debt secured by a homestead and
9-10     described by any subsection under Subsections (a)(1)-(a)(5) [that]
9-11     includes the advance of additional funds, the additional funds may
9-12     not be secured by a valid lien against the homestead except to the
9-13     extent that [unless]:
9-14                 (1)  the refinance of the debt is an extension of
9-15     credit described by Subsection (a)(6) or (a)(7) of this section; or
9-16                 (2)  [the advance of all] the additional funds are [is]
9-17     for actual [reasonable] costs and reserves required by the lender
9-18     [necessary] to refinance such debt or for a purpose described by
9-19     Subsection (a)(2), (a)(3), or (a)(5) of this section.
9-20           (f)  A refinance of debt secured by the homestead, any
9-21     portion of which is an extension of credit described by Subsection
9-22     (a)(6) of this section, may not be secured by a valid lien against
9-23     the homestead unless the refinance of the debt is an extension of
9-24     credit described by Subsection (a)(6) or (a)(7) of this section.
9-25           (g)  An extension of credit described by Subsection (a)(6) of
9-26     this section may be secured by a valid lien against homestead
 10-1    property if the extension of credit is not closed before the 12th
 10-2    day after the lender provides the owner with the following written
 10-3    notice on a separate instrument:
 10-4          "NOTICE CONCERNING EXTENSIONS OF CREDIT DEFINED BY SECTION
 10-5    50(a)(6), ARTICLE XVI, TEXAS CONSTITUTION:
 10-6          "SECTION 50(a)(6), ARTICLE XVI, OF THE TEXAS CONSTITUTION
 10-7    ALLOWS CERTAIN LOANS TO BE SECURED AGAINST THE EQUITY IN YOUR HOME.
 10-8    SUCH LOANS ARE COMMONLY KNOWN AS EQUITY LOANS.  IF YOU DO NOT REPAY
 10-9    THE LOAN OR IF YOU FAIL TO MEET THE TERMS OF THE LOAN, THE LENDER
10-10    MAY FORECLOSE AND SELL YOUR HOME.  THE CONSTITUTION PROVIDES THAT:
10-11                "(A)  THE LOAN MUST BE VOLUNTARILY CREATED WITH THE
10-12    CONSENT OF EACH OWNER OF YOUR HOME AND EACH OWNER'S SPOUSE;
10-13                "(B)  THE PRINCIPAL LOAN AMOUNT AT THE TIME THE LOAN IS
10-14    MADE MUST NOT EXCEED AN AMOUNT THAT, WHEN ADDED TO THE PRINCIPAL
10-15    BALANCES OF ALL OTHER LIENS AGAINST YOUR HOME, IS MORE THAN 80
10-16    PERCENT OF THE FAIR MARKET VALUE OF YOUR HOME UNLESS THE LOAN IS
10-17    MADE TO CORRECT AN ERROR IN A PRIOR EQUITY LOAN;
10-18                "(C)  THE LOAN MUST BE WITHOUT RECOURSE FOR PERSONAL
10-19    LIABILITY AGAINST YOU AND YOUR SPOUSE UNLESS YOU OR YOUR SPOUSE
10-20    OBTAINED THIS EXTENSION OF CREDIT BY ACTUAL FRAUD;
10-21                "(D)  THE LIEN SECURING THE LOAN MAY BE FORECLOSED UPON
10-22    ONLY WITH A COURT ORDER;
10-23                "(E)  OTHER THAN INTEREST, LATE FEES, RETURNED CHECK
10-24    FEES, AND COSTS OF FORECLOSURE, YOU ARE NOT REQUIRED TO PAY FEES TO
10-25    ORIGINATE, EVALUATE, MAINTAIN, RECORD, OR SERVICE THE LOAN THAT
10-26    EXCEED 3 PERCENT OF THE LOAN AMOUNT [FEES AND CHARGES TO MAKE THE
 11-1    LOAN MAY NOT EXCEED 3 PERCENT OF THE LOAN AMOUNT];
 11-2                "(F)  THE LOAN MAY NOT BE AN OPEN-END ACCOUNT THAT MAY
 11-3    BE DEBITED FROM TIME TO TIME OR UNDER WHICH CREDIT MAY BE EXTENDED
 11-4    FROM TIME TO TIME;
 11-5                "(G)  YOU MAY PREPAY THE LOAN WITHOUT PENALTY OR
 11-6    CHARGE;
 11-7                "(H)  NO [ADDITIONAL] COLLATERAL OTHER THAN THE
 11-8    PROPERTY YOU CLAIM TO BE YOUR HOMESTEAD AND THE PROPERTY RIGHTS
 11-9    APPURTENANT TO IT MAY BE SECURITY FOR THE LOAN;
11-10                "(I)  THE LOAN MAY NOT BE SECURED BY AGRICULTURAL
11-11    HOMESTEAD PROPERTY, UNLESS THE AGRICULTURAL HOMESTEAD PROPERTY IS
11-12    USED PRIMARILY FOR THE PRODUCTION OF MILK;
11-13                "(J)  YOU ARE NOT REQUIRED TO REPAY THE LOAN EARLIER
11-14    THAN AGREED SOLELY BECAUSE THE FAIR MARKET VALUE OF YOUR HOME
11-15    DECREASES OR BECAUSE YOU DEFAULT ON ANOTHER LOAN THAT IS NOT
11-16    SECURED BY YOUR HOME;
11-17                "(K)  ONLY ONE LOAN DESCRIBED BY SECTION 50(a)(6),
11-18    ARTICLE XVI, OF THE TEXAS CONSTITUTION MAY BE SECURED WITH YOUR
11-19    HOME AT ANY GIVEN TIME;
11-20                "(L)  THE LOAN MUST BE SCHEDULED TO BE REPAID IN
11-21    PAYMENTS THAT EQUAL OR EXCEED THE AMOUNT OF ACCRUED INTEREST FOR
11-22    EACH PAYMENT PERIOD;
11-23                "(M)  THE LOAN MAY NOT CLOSE BEFORE 12 DAYS AFTER YOU
11-24    SUBMIT AN [A WRITTEN] APPLICATION TO THE LENDER OR BEFORE 12 DAYS
11-25    AFTER THE LENDER PROVIDES YOU [RECEIVE] THIS NOTICE, WHICHEVER DATE
11-26    IS LATER; AND IF YOUR HOME WAS SECURITY FOR THE SAME TYPE OF LOAN
 12-1    WITHIN THE PAST YEAR, A NEW LOAN SECURED BY THE SAME PROPERTY MAY
 12-2    NOT CLOSE BEFORE ONE YEAR HAS PASSED FROM THE CLOSING DATE OF THE
 12-3    OTHER LOAN UNLESS THE LOAN IS MADE TO CORRECT AN ERROR IN A PRIOR
 12-4    EQUITY LOAN;
 12-5                "(N)  THE LOAN MAY CLOSE ONLY AT THE OFFICE OF THE
 12-6    LENDER, TITLE COMPANY, OR AN ATTORNEY AT LAW;
 12-7                "(O)  THE LENDER MAY CHARGE ANY FIXED OR VARIABLE RATE
 12-8    OF INTEREST AUTHORIZED BY STATUTE;
 12-9                "(P)  ONLY A LAWFULLY AUTHORIZED LENDER MAY MAKE LOANS
12-10    DESCRIBED BY SECTION 50(a)(6), ARTICLE XVI, OF THE TEXAS
12-11    CONSTITUTION; [AND]
12-12                "(Q)  THE LENDER MAY NOT REQUIRE YOU TO [LOANS
12-13    DESCRIBED BY SECTION 50(a)(6), ARTICLE XVI, OF THE TEXAS
12-14    CONSTITUTION MUST]:
12-15                      "(1)  [NOT REQUIRE YOU TO] APPLY THE PROCEEDS OF
12-16    THE LOAN TO ANOTHER DEBT, EXCEPT A DEBT THAT IS [NOT] SECURED BY
12-17    YOUR HOME OR [TO ANOTHER] DEBT YOU OWE TO ANOTHER [TO THE SAME]
12-18    LENDER;
12-19                      "(2)  [NOT REQUIRE THAT YOU] ASSIGN WAGES AS
12-20    SECURITY;
12-21                      "(3)  [NOT REQUIRE THAT YOU] EXECUTE INSTRUMENTS
12-22    WHICH HAVE BLANKS LEFT TO BE FILLED IN; OR
12-23                      "(4)  [NOT REQUIRE THAT YOU] SIGN A CONFESSION OF
12-24    JUDGMENT OR POWER OF ATTORNEY TO ANOTHER PERSON TO CONFESS JUDGMENT
12-25    OR APPEAR IN A LEGAL PROCEEDING ON YOUR BEHALF;
12-26                "(R)  IS MADE ON THE CONDITION THAT:
 13-1                      "(1) [(5)  PROVIDE THAT] YOU RECEIVE A COPY OF
 13-2    ALL DOCUMENTS YOU SIGN AT CLOSING; AND
 13-3                      "(2)  YOU AND THE LENDER ACKNOWLEDGE THE FAIR
 13-4    MARKET VALUE OF YOUR HOMESTEAD ON THE DATE THE LOAN CLOSES;
 13-5                "(S)  THE SECURITY INSTRUMENTS FOR THE LOAN MUST:
 13-6                      "(1) [(6)  PROVIDE THAT THE SECURITY INSTRUMENTS]
 13-7    CONTAIN A DISCLOSURE THAT THIS LOAN IS A LOAN DEFINED BY SECTION
 13-8    50(a)(6), ARTICLE XVI, OF THE TEXAS CONSTITUTION;
 13-9                      "(2) [(7)]  PROVIDE THAT WHEN THE LOAN IS PAID IN
13-10    FULL, THE LENDER WILL SIGN AND GIVE YOU A RELEASE OF LIEN OR AN
13-11    ASSIGNMENT OF THE LIEN, WHICHEVER IS APPROPRIATE;
13-12                      ["(8)  PROVIDE THAT YOU MAY, WITHIN 3 DAYS AFTER
13-13    CLOSING, RESCIND THE LOAN WITHOUT PENALTY OR CHARGE;]
13-14                      ["(9)  PROVIDE THAT YOU AND THE LENDER
13-15    ACKNOWLEDGE THE FAIR MARKET VALUE OF YOUR HOME ON THE DATE THE LOAN
13-16    CLOSES;] AND
13-17                      "(3) [(10)]  PROVIDE THAT THE LENDER WILL FORFEIT
13-18    ALL PRINCIPAL AND INTEREST IF THE LENDER FAILS TO COMPLY WITH THE
13-19    LENDER'S OBLIGATIONS UNLESS THE FAILURE TO COMPLY IS NOT A BAD
13-20    FAITH FAILURE TO COMPLY AND NOT LATER THAN 60 DAYS AFTER THE LENDER
13-21    ACTUALLY DISCOVERS THE NON-COMPLIANCE THE LENDER EITHER CORRECTS
13-22    THE NON-COMPLIANCE OR, IF IT IS NOT CAPABLE OF CORRECTION, THE
13-23    LENDER OFFERS YOU THE CHOICE TO:
13-24                            "(I)  REFINANCE THE LOAN AT NO COST TO YOU
13-25    AND ON THE SAME TERMS AS THE ORIGINAL LOAN OR ON TERMS OTHERWISE
13-26    ACCEPTABLE TO YOU AND THE LENDER; OR
 14-1                            "(II)  RECEIVE FROM THE LENDER A PAYMENT
 14-2    EQUAL TO THE GREATER OF $500 OR YOU ACTUAL DAMAGES CAUSED BY THE
 14-3    NON-COMPLIANCE; AND
 14-4                "(T)  YOU MAY, WITHIN 3 DAYS AFTER CLOSING, RESCIND THE
 14-5    LOAN WITHOUT PENALTY OR CHARGE."
 14-6          If the discussions with the borrower are conducted primarily
 14-7    in a language other than English, the lender shall, before closing,
 14-8    provide an additional copy of the notice translated into the
 14-9    written language in which the discussions were conducted.
14-10          SECTION 3.  Article XVI, Texas Constitution, is amended by
14-11    adding new Subsection (t) to read as follows:
14-12          (t)  If a lender makes an extension of credit that is
14-13    ostensibly an extension of credit under Subsection (a)(6) of this
14-14    section and the lender discovers that the extension of credit does
14-15    not fully comply with the description under Subsection (a)(6) of
14-16    this section, the lien securing the extension of credit is not
14-17    invalid if the lender did not in bad faith cause the failure to
14-18    comply and the lender, not later than 60 days after the lender
14-19    discovers the failure to comply, either corrects the failure to
14-20    comply or, if the failure to comply is not capable of correction,
14-21    offers the owner of the homestead the right to elect one of the
14-22    following within 90 days from the date the owner of the homestead
14-23    receives the offer:
14-24                (1)  a right to refinance the outstanding principal
14-25    balance of the extension of credit with the lender or holder at no
14-26    cost to the owner of the homestead on the same terms, including the
 15-1    interest rate, as the original extension of credit with any
 15-2    modifications necessary to comply with this section or on terms
 15-3    otherwise acceptable to the owner of the homestead and the lender
 15-4    or holder; or
 15-5                (2)  payment from the lender or holder in an amount
 15-6    equal to the greater of $500 or the owner's actual damages caused
 15-7    by the failure to comply.
 15-8          SECTION 4.  This proposed constitutional amendment shall be
 15-9    submitted to the voters at an election to be held November 6, 2001.
15-10    The ballot shall be printed to permit voting for or against the
15-11    proposition:  "The amendment to the Texas Constitution correcting
15-12    technical errors in home equity lien provisions of the Texas
15-13    Constitution and clarifying a lender's ability to cure certain
15-14    violations of the home equity lien provisions."