86R3440 KFF-D
 
  By: Menéndez S.B. No. 763
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to a creditor's remedies with respect to certain
  delinquent payments owed by an elderly person who has an agent
  appointed under a durable power of attorney.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 751, Estates Code, is amended by adding
  Subchapter E-1 to read as follows:
  SUBCHAPTER E-1. CREDITOR'S DUTY TO NOTIFY AGENT
         Sec. 751.231.  CREDITOR'S DUTY TO NOTIFY AGENT OF CERTAIN
  DELINQUENT PAYMENTS.  (a)  In this section, "elderly principal"
  means a principal who is 65 years of age or older.
         (b)  For purposes of this section, a payment is delinquent if
  the creditor to whom the payment is owed does not receive the
  payment on or before the 30th day after the date the payment is due,
  as determined under a purchase or lease agreement or other
  contractual arrangement.
         (c)  Notwithstanding any other law, a creditor to whom an
  elderly principal owes a payment that is delinquent and arose out of
  a purchase or lease agreement or other contractual arrangement that
  secures the elderly principal's living quarters must comply with
  the requirements of this subsection before taking an adverse action
  against the elderly principal, including commencing an eviction
  proceeding, if the creditor knows or has reason to know that the
  elderly principal executed a durable power of attorney that grants
  authority to an agent that would allow the agent to make the payment
  that is delinquent. Notwithstanding any other law, before the
  creditor takes the adverse action against the elderly principal,
  the creditor must:
               (1)  submit a written request to the agent by certified
  mail, return receipt requested, that the delinquent payment be made
  on or before the 30th day after the date the agent receives the
  request; and
               (2)  if the creditor does not receive payment on or
  before the 30th day after the date the agent received the written
  request under Subdivision (1), bring an action requesting a court
  to review the agent's conduct and grant appropriate relief under
  Section 751.251.
         (d)  A creditor who files an action with a court in
  accordance with Subsection (c)(2) may not take an adverse action
  against the elderly principal until the court enters an order on the
  action.
         (e)  In addition to other remedies provided by law, an
  elderly principal is entitled to recover from or against a creditor
  who violates this section:
               (1)  a civil penalty in an amount equal to the amount of
  the delinquent payment;
               (2)  actual damages suffered by the elderly principal
  as a result of the creditor's violation of this section;
               (3)  court costs;
               (4)  injunctive relief; and
               (5)  reasonable attorney's fees incurred by the elderly
  principal in seeking enforcement of this section.
         SECTION 2.  Section 751.251(a), Estates Code, is amended to
  read as follows:
         (a)  The following may bring an action requesting a court to
  construe, or determine the validity or enforceability of, a durable
  power of attorney, or to review an agent's conduct under a durable
  power of attorney and grant appropriate relief:
               (1)  the principal or the agent;
               (2)  a guardian, conservator, or other fiduciary acting
  for the principal;
               (3)  a person named as a beneficiary to receive
  property, a benefit, or a contractual right on the principal's
  death;
               (4)  a governmental agency with regulatory authority to
  protect the principal's welfare; [and]
               (5)  a person who demonstrates to the court sufficient
  interest in the principal's welfare or estate; and
               (6)  a creditor under Section 751.231(c)(2).
         SECTION 3.  (a) Subchapter E-1, Chapter 751, Estates Code,
  as added by this Act, applies only to a purchase or lease agreement
  or other contractual arrangement entered into or renewed:
               (1)  on or after the effective date of this Act; and
               (2)  before the effective date of this Act, to the
  extent the subchapter does not conflict with a provision of the
  purchase or lease agreement or other contractual arrangement.
         (b)  To the extent Subchapter E-1, Chapter 751, Estates Code,
  as added by this Act, conflicts with the provision of a purchase or
  lease agreement or other contractual arrangement entered into
  before the effective date of this Act, the purchase or lease
  agreement or other contractual arrangement provision prevails.
         SECTION 4.  This Act takes effect September 1, 2019.