S.J.R. 42 78(R)    BILL ANALYSIS


S.J.R. 42
By: Carona
  Financial Institutions 
Committee Report (Unamended)



BACKGROUND AND PURPOSE 

The Texas Constitution prohibits the forced sale of a homestead except for
very limited purposes, including the non-payment of taxes or a valid lien
secured by the homestead.  Texans have been able to borrow against the
equity in their homes and use the funds for any purpose since 1998, when a
constitutional amendment authorizing home equity loans took effect. Unlike
a first lien, a home equity loan: 
_May not be foreclosed upon except by a court order;
_Is without recourse for personal liability unless it was fraudulently
obtained; 
_May not be refinanced within one year;
_May not have a principal in excess of 80 percent of the value of the home
less any outstanding principal balances of any other valid liens on the
homestead; 
_May not be accelerated because of a decrease in the homestead's market
value or the owner's default on another debt; and 
_May not contain fees, over any interest, in excess of 3 percent of the
principal.   
Currently, a home equity loan must be a closed-end debt, which is repaid
in substantially equal monthly payments over a specific length of time.  A
home equity loan may be refinanced only as a home equity loan.  In other
words, any refinancing of debts secured by the homestead which include a
home equity loan must be a home equity loan, not a first lien, under the
Constitution. 

The Constitution provides that the lender forfeits all principal and
interest if a failure to comply with all the lender's obligations is not
corrected in a reasonable time.  The "cure process" is not otherwise
described, either in the Constitution or in statute.  Furthermore, no
state agency has the authority to interpret home equity law, leaving the
resolution of questions over the meaning of the law exclusively to the
judiciary.  This and other limitations placed on home equity lending in
Texas may result in fewer choices and higher interest costs for
homeowners. 

S.J.R. 42 addresses these issues by authorizing home equity lines of
credit, allowing payments to be made on a biweekly basis, clarifying the
cure process, and permitting the Legislature to authorize state agencies
to interpret constitutional provisions related to home equity lending. 

RULEMAKING AUTHORITY

It is the committee's opinion that this joint resolution does not
expressly grant any additional rulemaking authority to a state officer,
department, agency, or institution. 

ANALYSIS

S.J.R. 42 amends Sections 50(a), Article XVI, Texas Constitution to
establish a home equity line of credit.  The measure adds new Section
50(t) to Article XVI, Texas Constitution, to define a home equity line of
credit as a form of open-end account which may be extended from time to
time under certain conditions.  A home equity line of credit is limited to
a total principal amount of up to 50 percent of the fair market value of
the homestead.  A lender must charge all fees related to a home equity
line of credit at the time credit is extended and may not charge any fees
to the homeowner in connection with any debit or advance.  No single
debits or advances may be less than $4,000, and no debit or advance is
permitted through the use of a credit card, debit card, preprinted
solicitation check, or similar device.  The lender may not unilaterally
amend a home equity line of credit.  The measure provides for the periodic
repayment and reborrowing of a home equity line of credit. 

 The measure permits a borrower to make regularly scheduled payments on a
home equity loan every two weeks, but not less often than monthly.  The
measure deletes the current requirement that repayments be made on a
monthly basis. 

S.J.R. 42 establishes a specific series of provisions through which a
lender may cure most failures to comply with the lender's obligations
under the home equity provisions of the Constitution.  The lender shall
forfeit all principal and interest of a home equity loan if the lender
fails to correct its failure to comply within 60 days of being notified
by: 
_Paying the owner an amount equal to any overcharge paid by the owner, if
the owner paid an amount in excess of those authorized by law; 
_Sending the owner an acknowledgment that the lien is valid only in an
amount that does not exceed the 80 percent cap; 
_Sending the owner an acknowledgment that the accrual of interest and all
of the owner's obligations under the home equity loan are abated while any
prior lien, the presence of which prevents a home equity loan from being
made, remains secured by the homestead; 
_Sending the owner an acknowledgment that the lien is not secured by real
or personal property that is not the homestead or by real property used
for most agricultural uses; 
_Sending the owner a written notice modifying any other prohibited amount,
percentage, term, or other provision to a permitted term and adjusting the
owner's account accordingly; 
_Providing the owner with required documents, if the lender failed to
provide the owner with all signed copies; 
_Obtaining required signatures, if the lender failed to obtain a signature
on a statement of the fair market value of the homestead; or 
_If the failure to comply cannot be cured by any of the above means,
offering a refund or credit to the homeowner equal to $1,000 and offering
the homeowner the right to refinance at no cost to the homeowner with any
modifications necessary to cure the failure to comply. 
However, the lender or any holder of the note shall forfeit all principal
and interest for the home equity loan if it was made by an unauthorized
person or if it was not created under a written agreement with the consent
of each owner and each owner's spouse, unless such individuals
subsequently consent.  The measure deletes the current requirement that
the failure be cured in a reasonable period of time. 

The measure permits a home equity loan to be refinanced before the first
anniversary of its closing date in order to satisfy the lender's ability
to cure a defect in the loan.  The measure adds a person regulated by this
state as a mortgage broker to the list of persons who are permitted to
make a home equity loan.  The measure permits a home equity loan to be
secured by a manufactured home which has been converted to real property. 

S.J.R. 42 amends Section 50(f), Article XVI, Texas Constitution to permit
the refinancing of a home equity loan as a reverse mortgage. 

The measure amends Section 50(g), Article XVI, Texas Constitution to make
conforming changes to the notice that must be provided to a borrower 12
days before a home equity loan must be closed. The measure adds a
statement to the notice declaring that the notice is only a summary of the
homeowner's rights under the Texas Constitution. 

S.J.R. 42 adds new Section 50(u) to Article XVI, Texas Constitution to
permit the Legislature by statute to delegate to one or more state
agencies the power to interpret certain constitutional provisions relating
to home equity lending.  An act or omission does not violate such a
provision if the act or omission conforms to an interpretation that is in
effect at the time of the act or omission and made by a state agency to
which the power of interpretation is so delegated or by an appellate court
of this state or the United States. 

FOR ELECTION

The proposed constitutional amendment would be submitted to the voters at
an election to be held November 4, 2003.