SRC-MSY S.B. 1112 78(R)   BILL ANALYSIS


Senate Research Center   S.B. 1112
By: Shapleigh
State Affairs
4/3/2003
As Filed


DIGEST AND PURPOSE 

Current Texas law does not include certain measures aimed at eliminating
predatory lending practices.  As proposed, S.B. 1112 makes a number of
changes to the Finance Code in order to curb certain practices that may be
considered predatory, including placing prohibitions on certain excessive
fees, arbitration clauses that place a large burden on borrowers, home
loans that exceed the rate threshold, high-cost home loans that are made
without regard to the borrower's creditworthiness, and the refinancing of
a high-cost loan with another high-cost loan.  In addition, S.B.  1112
grants the state the authority: to determine which lenders are subprime
lenders, to allow local authorities to help prosecute violators, and to
require all loans made in the state to comply with certain state laws,
regardless of where the lender is located. 

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the Texas Finance Commission
in SECTION 9 (Section  343.112, Finance Code) and SECTION 13 (Section
343.211, Finance Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subchapter D, Chapter 11, Finance Code, by adding
Section 11.308, as follows: 

Sec.  11.308.  DETERMINATION OF SUBPRIME LENDER; SUBPRIME LENDING REPORTS.
(a)  Requires the Texas Finance Commission (TFC) to annually determine the
criteria for classification as subprime lender.  Authorizes TFC to
determine the classification as a subprime lender by referencing federal
regulatory agency data. 

(b)  Requires TFC to determine the manner in which TFC must report
information relating to the classification of subprime lenders. 

SECTION 2.  Amends Section 342.005, Finance Code, by amending the title
and adding Subsection (b), as follows: 

Sec.  342.005.  New heading:  APPLICABILITY OF CHAPTER AND OTHER LAW. (a)
Creates this subsection from existing text. 

(b)  Prohibits a lender from making a loan that is subject to this
chapter, other than a secondary mortgage loan, to a resident of this state
unless the loan complies with this chapter and all other state law
applicable to the loan, regardless of whether the lender is located in
this state.  Provides that an agreement made in connection with the loan
is void to the extent the agreement waives the application of this
subsection or applies the law of a jurisdiction other than this state to
the loan, notwithstanding certain other law. 

SECTION 3.  Amends Subchapter A, Chapter 342, Finance Code, by adding
Section 342.010, as follows: 

Sec.  342.010.  ASSISTING DEFERRED PRESENTMENT TRANSACTION.  (a)
Prohibits a person from assisting in the creation of a deferred
presentment transaction between a lender and consumer at a rate or amount
of interest not authorized by this chapter, regardless of whether the
lender is subject to this chapter. 

(b)  Provides that an agreement made in connection with a deferred
presentment transaction to which Subsection (a) applies is void to the
extent the agreement waives the application of this section or applies the
law of a jurisdiction other than this state to determine the permissible
rate or amount of interest applicable to the transaction, notwithstanding
certain other law. 

(c)  Provides that a person who assists in the creation of a deferred
presentment transaction is considered to contract for interest for the
purposes of Chapter 349. 

SECTION 4.  Amends Subchapter L, Chapter 342, Finance Code, by adding
Section 342.561, as follows: 

Sec.  342.561.  ENFORCEMENT BY DISTRICT OR COUNTY ATTORNEY.  (a) Requires
a district or county attorney to assist the consumer credit commissioner
(commissioner) in the institution and prosecution of an action under this
chapter or under Chapter 14 relating to a violation of this chapter. 

(b)  Authorizes a district or county attorney, after obtaining written
approval from the commissioner, to institute and prosecute an action for
declaratory judgment or injunctive relief under this chapter.  Authorizes
the commissioner to assist in the action upon request of the district or
county attorney. 

(c)  Authorizes the court in the action to order the defendant to pay the
county in which the action was instituted an amount necessary to cover the
costs of participation by the district county or attorney under certain
circumstances. 

SECTION 5.  Amends Section 343.001(2), Finance Code, by amending the
definition of "home loan." 

SECTION 6.  Amends Subchapter A, Chapter 343, Finance Code, by adding
Sections 343.004 and 343.005, as follows: 

Sec.  343.004.  PROHIBITED SUBTERFUGE.  Prohibits a person from
intentionally attempting to avoid the application of this chapter by
dividing a loan transaction into separate parts for that purpose or by any
other subterfuge. 

Sec.  343.005.  DECEPTIVE TRADE PRACTICE.  Provides that a violation of
this chapter is a deceptive trade practice under Subchapter E, Chapter 17,
Business & Commerce Code. 

SECTION 7.  Amends Section 343.101, Finance Code, by amending Subsection
(b) and adding Subsection (c), as follows: 

(b)  Prohibits a lender from replacing or consolidating a low-rate home
loan made, originated, subsidized, or guaranteed, rather than directly
made, by a government or nonprofit lender, rather than by a government or
nonprofit lender before the seventh anniversary of the date of the loan. 

(c)  Prohibits a lender from making a home loan to a borrower that
refinances an existing home loan if the new loan does not have reasonable,
tangible net benefit to the borrower considering all of the circumstances,
including certain circumstances.  Provides that a home loan refinancing is
presumed to violate this subsection if the primary tangible benefit to the
borrower is an interest rate lower than the interest rate on debts
satisfied or refinanced in connection with the home loan, and it will take
more than four years for the borrower to recoup certain costs through
savings resulting from the lower interest rate. 
 
SECTION 8.  Amends Sections 343.102 and 343.103, Finance Code, as follows:

Sec.  343.102.  DISCLOSURE IN CONNECTION WITH CERTAIN HOME LOANS. (a)
Requires the lender to provide the borrower with information listed in
Subdivisions (1)-(5) no later than 48 hours before the date of closing,
rather than under certain circumstances or three days after the date the
application is made. 

(4)  Adds a statement of the loan fees to be paid by the borrower to the
list of  information the lender must provide to the borrower. 

(5)  Redesignated from Subdivision (4).

(b)  Requires a disclosure of fees under Subsection (a)(4) to be in a form
substantially similar to the documents that will be used for the closing. 

(c)  Requires the lender to provide the borrower with a written notice of
the revised amount if, before closing, the total amount of fees disclosed
under Subsection (a)(4) changes by a certain amount.  Prohibits the loan
from being closed before 48 hours after the date of the notice provided
under this subsection. 

(d)  Authorizes the borrower to modify or waive the waiting period
provided by this section, if the borrower determines that the loan is
needed to meet a personal financial emergency by providing the lender with
a certain statement.  Prohibits the statement under this section from
being on a form provided by the lender or on the lender's behalf.  Deletes
language providing that this section expires on September 1, 2003. 

Sec.  343.103.  PENALTIES FOR FAILURE TO PROVIDE DISCLOSURE.  Deletes
Subsection (b) which provides that this section expires on September 1,
2003.  Makes a conforming change. 

SECTION 9.  Amends Subchapter B, Chapter 343, Finance Code, by adding
Sections 343.105343.112, as follows: 

Sec.  343.105.  RECOMMENDATION OF DEFAULT.  Prohibits a lender from
recommending or encouraging default on an existing loan or other debt
before and in connection with the closing or planned closing of a home
loan that refinances all or part of the existing loan debt. 

Sec.  343.106.  LATE FEES.  (a)  Prohibits a lender from charging a late
fee unless the fee meets certain requirements. 

(b)  Prohibits a late payment fee from being imposed for a default if a
late payment fee is deducted from a payment made on the loan and the
deduction causes the default on a subsequent payment. 

(c)  Prohibits a late payment fee from being imposed with respect to any
future payment that would have been timely and sufficient but for a
previous default, if a late payment fee has been imposed once with respect
to a particular late payment. 

(d)  Prohibits a late payment from being charged unless the lender
notifies the borrower not later than the 45th day after the date the
payment was due that a late payment fee has been imposed for a particular
late payment.  Prohibits a late payment fee from being collected from a
borrower who informs the lender that nonpayment of an installment is in
dispute and presents proof of payment not later than the 45th day after
the date of receipt of the lender's notice of the late payment fee. 

 (e)  Requires the lender to post each payment on the date it is received
by the lender, servicer, or lender's agent or at the address provided to
the borrower by the lender, servicer, or lender's agent for making
payments. 

Sec.  343.107.  ACCELERATION PROHIBITED.  (a)  Prohibits a lender from
including in a home loan a provision that permits the lender, in the
lender's sole discretion, to accelerate the indebtedness. 

(b)  Provides that this section does not prohibit acceleration of a loan
in good faith due to the borrower's failure to abide by the material terms
of the loan. 

Sec.  343.108.  LIMITATIONS ON FEES.  Prohibits a lender, in connection
with a home loan, from charging a borrower an amount for a service or
product under certain circumstances.   

Sec.  343.109.  FALSE, MISLEADING, OR DECEPTIVE STATEMENT OR
REPRESENTATION.  Prohibits a lender from making or causing to be made a
false, deceptive, or misleading statement or representation in connection
with a home loan. Sets forth the circumstances under which a statement or
representation is to be considered deceptive or misleading. 

Sec.  343.110.  DOCUMENT WITH BLANKS.  Provides that a home loan document
in which blanks are left to be filled in after the document is signed by
borrower is void. 

Sec.  343.111.  LANGUAGE OF DISCLOSURES.  Requires the lender to provide
an additional copy of certain information translated into the language in
which the discussions between the lender and the borrower on a home loan
are conducted, if the discussions are conducted primarily in a language
other than English. 

Sec.  343.112.  ARBITRATION.  Prohibits a home loan from including an
arbitration clause that requires a borrower to travel a certain distance
or imposes fees or expenses considered excessive as determined by rules
adopted by TFC based on certain recommendations. 

SECTION 10.   Amends Section 343.201(1), Finance Code, by amending
Subdivision (1) to redefine "high-cost home loan" as a loan that is a
certain credit transaction, if the total loan amount is $20,000 or more
and the interest rate for the loan exceeds the applicable rate threshold
provided by Section 343.2011, rather than if the total loan amount is
$20,000 or more and the annual percentage rate exceeds a certain rate. 

SECTION 11.  Amends Subchapter C, Chapter 343, Finance Code, by adding
Section 343.2011, as follows: 

Sec.  343.2011.  RATE THRESHOLD.  (a)  Provides that the rate threshold is
exceeded for the purposes of Section 343.201(1)(E)(i) under certain
circumstances set forth in Subdivisions (1) and (2). 

(b)  Sets forth the methods for computing the trigger rate.

(c)  Provides that the interest rate used to calculate the rate threshold
refers to a certain annual percentage rate calculated according to certain
federal regulations. 

SECTION 12.  Amends Section 343.202, Finance Code, by prohibiting a
high-cost home loan from containing a provision for a scheduled payment
that is more than twice as large as the average of earlier scheduled
monthly payments, unless the balloon payment becomes due not less than 15
years, rather than 60 months, after the date of the loan. 

SECTION 13.  Amends Subchapter C, Chapter 343, Finance Code, by adding
Sections 343.206343.211, as follows: 
 
Sec.  343.206.  LENDING WITHOUT COUNSELING PROHIBITED.  Prohibits a lender
from making a high-cost home loan without first receiving certification
from a counselor approved by one of certain agencies that the borrower has
received counseling on the advisability of the loan transaction. 

Sec.  343.207.  REFINANCING WITH HIGH-COST HOME LOAN PROHIBITED. Prohibits
a high-cost home loan from being refinanced with another high-cost home
loan. 

Sec.  343.208.  MAKING HIGH-COST HOME LOAN WITHOUT REGARD TO
CREDITWORTHINESS.  Prohibits a lender from making a high-cost home loan to
a borrower if, under the lender's usual lending practices, the lender
would make a home loan that is not a high-cost home loan to another
borrower of comparable creditworthiness. 

Sec.  343.209.  INCREASED INTEREST RATE PROHIBITED.  (a)  Prohibits a
lender from including in a high-cost home loan a provision that increases
the interest rate after default. 

(b)  Provides that this section does not apply to an interest rate change
in a variable rate loan otherwise consistent with the loan documents, if
the change is not triggered by the event of default or the acceleration of
the indebtedness. 

Sec.  343.210.  MODIFICATION OR DEFERRAL FEES PROHIBITED.  Prohibits a
lender from charging a borrower to modify, renew, extend, or amend a
high-cost home loan or to defer any payment due under the terms of a
high-cost home loan. 

Sec.  343.211.  ARBITRATION.  Prohibits a high-cost home loan from
including an arbitration clause that is oppressive or unfair as determined
by rules adopted by TFC based on certain recommendations. 

SECTION 14.  (a)  Makes application of this Act prospective, except as
provided by Subsection (b) of this section. 

(b)  Provides that Sections 343.112(2) and 343.211, Finance Code, as added
by this Act, apply only to a loan closed on or after January 1, 2004. 

(c)  Requires the Finance Commission of Texas to adopt rules to implement
Sections 343.112(2) and 343.211, Finance Code, as added by this Act. 

SECTION 15.  Effective date:  September 1, 2003.