Texas 2009 - 81st Regular

Texas House Bill HB2392 Compare Versions

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1	1	By: England H.B. No. 2392
2	2	Substitute the following for H.B. No. 2392:
3	3	By: Turner of Harris C.S.H.B. No. 2392
4	4
5	5
6	6	A BILL TO BE ENTITLED
7	7	AN ACT
8	8	relating to the persons entitled to redeem property after the
9	9	foreclosure of a property owners' association's assessment lien.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Sections 209.010(a) and (b), Property Code, are
12	12	amended and subsection (c) is added, to read as follows:
13	13	(a) A property owners' association that conducts a
14	14	foreclosure sale of an owner's lot must send to the lot owner and to
15	15	each lienholder of record on the property, not later than the 30th
16	16	day after the date of the foreclosure sale, a written notice stating
17	17	the date and time the sale occurred and informing the lot owner and
18	18	each lienholder of the [owner's] right of the lot owner and
19	19	lienholders to redeem the property under Section 209.011.
20	20	(b) The notice must be sent by certified mail, return
21	21	receipt requested, to:
22	22	(1) the lot owner's last known mailing address, as
23	23	reflected in the records of the property owners' association; and
24	24	(2) the address of each lienholder as shown in the real
25	25	property records of the county in which the property is located
26	26	holder of a lien evidenced by a deed of trust filed of record on the
27	27	property subject to foreclosure, according to the most recent deed
28	28	of trust on file in the real property records of the county in which
29	29	the property is located. A property owners association shall have
30	30	no duty to determine if a deed of trust has been transferred or
31	31	assigned. If there is no lienholder address in such deed of trust,
32	32	the association shall have no duty to notify the lienholder in
33	33	accordance with this Section.
34	34	(c) For purposes of this Section the lot owner shall be
35	35	deemed to have given approval for the association to notify the
36	36	lienholder.
37	37	SECTION 2. Sections 209.011(b), (c), (d), (e), (f), (g),
38	38	(h), (j), (k), (m), (n), and (p), Property Code, are amended to read
39	39	as follows:
40	40	(b) The owner of property in a residential subdivision or a
41	41	holder of a recorded lien secured by the property may redeem the
42	42	property from any purchaser at a sale foreclosing a property
43	43	owners' association's assessment lien not later than the 180th day
44	44	after the date the association mails written notice of the sale to
45	45	the owner and the lienholder under Section 209.010.
46	46	(c) A person who purchases property at a sale foreclosing a
47	47	property owners' association's assessment lien may not transfer
48	48	ownership of the property to a person other than a redeeming lot
49	49	owner or a redeeming lienholder during the redemption period.
50	50	(d) To redeem property purchased by the property owners'
51	51	association at the foreclosure sale, the lot owner or lienholder
52	52	must pay to the association:
53	53	(1) all amounts due the association at the time of the
54	54	foreclosure sale;
55	55	(2) interest from the date of the foreclosure sale to
56	56	the date of redemption on all amounts owed the association at the
57	57	rate stated in the dedicatory instruments for delinquent
58	58	assessments or, if no rate is stated, at an annual interest rate of
59	59	10 percent;
60	60	(3) costs incurred by the association in foreclosing
61	61	the lien and conveying the property to the redeeming lot owner or
62	62	lienholder, including reasonable attorney's fees;
63	63	(4) any assessment levied against the property by the
64	64	association after the date of the foreclosure sale;
65	65	(5) any reasonable cost incurred by the association,
66	66	including mortgage payments and costs of repair, maintenance, and
67	67	leasing of the property; and
68	68	(6) the purchase price paid by the association at the
69	69	foreclosure sale less any amounts due the association under
70	70	Subdivision (1) that were satisfied out of foreclosure sale
71	71	proceeds.
72	72	(e) To redeem property purchased at the foreclosure sale by
73	73	a person other than the property owners' association, the lot owner
74	74	or lienholder:
75	75	(1) must pay to the association:
76	76	(A) all amounts due the association at the time
77	77	of the foreclosure sale less the foreclosure sales price received
78	78	by the association from the purchaser;
79	79	(B) interest from the date of the foreclosure
80	80	sale through the date of redemption on all amounts owed the
81	81	association at the rate stated in the dedicatory instruments for
82	82	delinquent assessments or, if no rate is stated, at an annual
83	83	interest rate of 10 percent;
84	84	(C) costs incurred by the association in
85	85	foreclosing the lien and conveying the property to the redeeming
86	86	lot owner or lienholder, including reasonable attorney's fees;
87	87	(D) any unpaid assessments levied against the
88	88	property by the association after the date of the foreclosure sale;
89	89	and
90	90	(E) taxable costs incurred in a proceeding
91	91	brought under Subsection (a); and
92	92	(2) must pay to the person who purchased the property
93	93	at the foreclosure sale:
94	94	(A) any assessments levied against the property
95	95	by the association after the date of the foreclosure sale and paid
96	96	by the purchaser;
97	97	(B) the purchase price paid by the purchaser at
98	98	the foreclosure sale;
99	99	(C) the amount of the deed recording fee;
100	100	(D) the amount paid by the purchaser as ad
101	101	valorem taxes, penalties, and interest on the property after the
102	102	date of the foreclosure sale; and
103	103	(E) taxable costs incurred in a proceeding
104	104	brought under Subsection (a).
105	105	(f) If a lot owner or lienholder redeems the property under
106	106	this section, the purchaser of the property at foreclosure shall
107	107	immediately execute and record deliver to the redeeming lot owner
108	108	or lienholder
109	109	lot owner or lienholder. If a purchaser fails to comply with this
110	110	section, the redeeming lot owner or lienholder may file an [a cause
111	111	of] action against the purchaser and may recover reasonable
112	112	attorney's fees from the purchaser if the lot owner or the
113	113	lienholder is the prevailing party in the action.
114	114	(g) If, before the expiration of the redemption period, the
115	115	redeeming lot owner or lienholder fails to record the deed from the
116	116	foreclosing purchaser or fails to record an affidavit stating that
117	117	the lot owner or lienholder has redeemed the property, the lot
118	118	owner's or lienholder's right of redemption as against a bona fide
119	119	purchaser or lender for value expires after the redemption period.
120	120	(h) The purchaser of the property at the foreclosure sale or
121	121	a person to whom the person who purchased the property at the
122	122	foreclosure sale transferred the property may presume conclusively
123	123	that the lot owner or a lienholder did not redeem the property
124	124	unless the lot owner or a lienholder files in the real property
125	125	records of the county in which the property is located:
126	126	(1) a deed from the purchaser of the property at the
127	127	foreclosure sale; or
128	128	(2) an affidavit that:
129	129	(A) states that the property lot owner or a
130	130	lienholder
131	131	(B) contains a legal description of the property;
132	132	and
133	133	(C) includes the name and mailing address of the
134	134	person who redeemed the property.
135	135	(j) If a person other than the property owners' association
136	136	is the purchaser at the foreclosure sale, before executing a deed
137	137	transferring the property to the redeeming lot owner or lienholder,
138	138	the purchaser shall obtain an affidavit from the association or its
139	139	authorized agent stating that all amounts owed the association
140	140	under Subsection (e) have been paid. The association shall provide
141	141	the purchaser with the affidavit not later than the 10th day after
142	142	the date the association receives all amounts owed to the
143	143	association under Subsection (e). Failure of a purchaser to comply
144	144	with this subsection does not affect the validity of a redemption
145	145	[by a redeeming lot owner].
146	146	(k) Property that is redeemed remains subject to all liens
147	147	and encumbrances on the property before foreclosure. Any lease
148	148	entered into by the purchaser of property at a sale foreclosing an
149	149	assessment lien of a property owners' association is subject to the
150	150	right of redemption provided by this section and the lot owner's
151	151	right to reoccupy the property immediately after [the] redemption
152	152	by the lot owner.
153	153	(m) If a lot owner or lienholder sends by certified mail,
154	154	return receipt requested, a written request to redeem the property
155	155	on or before the last day of the redemption period, the lot owner's
156	156	or lienholder's right of redemption is extended until the 10th day
157	157	after the date the association and any third party foreclosure
158	158	purchaser provides written notice to the lot owner or lienholder
159	159	redeeming party of the amounts that must be paid to redeem the
160	160	property.
161	161	(n) After the redemption period and any extended redemption
162	162	period provided by Subsection (m) expires without a redemption of
163	163	the property, the association or third party foreclosure purchaser
164	164	shall record an affidavit in the real property records of the county
165	165	in which the property is located stating that the lot owner or a
166	166	lienholder did not redeem the property during the redemption period
167	167	or any extended redemption period.
168	168	(p) The rights of a lot owner and a lienholder under this
169	169	section also apply if the sale of the lot owner's property is
170	170	conducted by a constable or sheriff as provided by a judgment
171	171	obtained by the property owners' association.
172	172	SECTION 3. Sections 209.010 and 209.011, Property Code, as
173	173	amended by this Act, apply only to a foreclosure sale conducted on
174	174	or after the effective date of this Act. A foreclosure sale
175	175	conducted before the effective date of this Act is governed by the
176	176	law in effect immediately before the effective date of this Act, and
177	177	that law is continued in effect for that purpose.
178	178	SECTION 4. This Act takes effect September 1, 2009.