Texas 2009 - 81st Regular

Texas House Bill HB3077 Compare Versions

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1	1	81R20197 AJA-F
2	2	By: Deshotel H.B. No. 3077
3	3	Substitute the following for H.B. No. 3077:
4	4	By: Elkins C.S.H.B. No. 3077
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the assignment of security interests in certain
10	10	collateral.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 261.004(a), Business & Commerce Code, as
13	13	effective April 1, 2009, is amended to read as follows:
14	14	(a) Subject to Subsection (b), the filing with the secretary
15	15	of state of a utility security instrument executed by a utility and
16	16	described by Section 261.003(1) and payment of the filing fee
17	17	prescribed by Section 261.008:
18	18	(1) constitute perfection of a security interest
19	19	created by the instrument in any personal property:
20	20	(A) in which a security interest may be perfected
21	21	by filing under Chapter 9, including any goods that are or will
22	22	become a fixture;
23	23	(B) that is located in this state; and
24	24	(C) that was owned by the utility when the
25	25	instrument was executed or is to be acquired by the utility after
26	26	the instrument is executed; [and]
27	27	(2) if the instrument is proven, acknowledged, or
28	28	certified as otherwise required by law for the recording of real
29	29	property mortgages, serve as notice to all persons of the existence
30	30	of the instrument and the security interest granted by the
31	31	instrument in any real property, or in any fixture on or to be
32	32	placed on the property, that:
33	33	(A) is located in this state; and
34	34	(B) was owned by the utility when the instrument
35	35	was executed or is to be acquired by the utility after the
36	36	instrument is executed; and
37	37	(3) result in priority of the secured party reflected
38	38	on the utility security instrument and assignees under Section
39	39	261.012 over the rights of a lien creditor, as defined by Section
40	40	9.102, for so long as the lien is recorded on the utility security
41	41	instrument.
42	42	SECTION 2. Chapter 261, Business & Commerce Code, as
43	43	effective April 1, 2009, is amended by adding Section 261.012 to
44	44	read as follows:
45	45	Sec. 261.012. ASSIGNMENT OF SECURITY INTEREST. (a) A
46	46	secured party may assign a security interest recorded under Section
47	47	261.004 without making any filing or giving any notice under this
48	48	chapter. The security interest assigned remains valid and
49	49	perfected and retains its priority, securing the obligation
50	50	assigned to the assignee, against transferees from and creditors of
51	51	the original debtor utility, including lien creditors, as defined
52	52	by Section 9.102.
53	53	(b) An assignee or assignor may, but need not to retain the
54	54	validity, perfection, and priority of the security interest
55	55	assigned, as evidence of the assignment of the security interest
56	56	recorded under Section 261.004, apply to the secretary of state for
57	57	the assignee to be reflected as secured party on the utility
58	58	security instrument and notify the debtor utility of the
59	59	assignment. Failure to make application under this section or
60	60	notify a debtor utility of an assignment does not create a cause of
61	61	action against the secured party reflected on the utility security
62	62	instrument, the assignor, or the assignee or affect the
63	63	continuation of the perfected status of the assigned security
64	64	interest in favor of the assignee against transferees from and
65	65	creditors of the debtor utility, including lien creditors, as
66	66	defined by Section 9.102.
67	67	SECTION 3. Section 1201.219, Occupations Code, is amended
68	68	by amending Subsection (b) and adding Subsections (d) and (e) to
69	69	read as follows:
70	70	(b) Except as provided by Subsection (a), a lien on a
71	71	manufactured home is perfected only by filing with the department
72	72	the notice of lien on a form provided by the department, and on such
73	73	filing, the recorded lienholder and assignees under Subsection (d)
74	74	obtain priority over the rights of a lien creditor, as defined by
75	75	Section 9.102, Business & Commerce Code, for so long as the lien is
76	76	recorded on the statement of ownership and location. The form
77	77	shall require the disclosure of the original dollar amount of the
78	78	lien and, if a tax lien, the name and address of the person in whose
79	79	name the manufactured home is listed on the tax roll. The
80	80	department shall disclose on its website the date of each lien
81	81	filing, the original amount of the lien claimed by each filing, and
82	82	the fact that the amount shown does not include additional sums
83	83	including interest, penalties, and attorney's fees. The statement
84	84	required by Section 1201.205(7) is notice to all persons that the
85	85	tax lien exists. Except as expressly provided by Chapter 32, Tax
86	86	Code, a lien recorded with the department has priority, according
87	87	to the chronological order of recordation, over another lien or
88	88	claim against the manufactured home. Tax liens shall be filed by
89	89	the tax collector for any taxing unit having the power to tax the
90	90	manufactured home. A single filing by a tax collector is a filing
91	91	for all the taxing units for which the tax collector is empowered to
92	92	collect.
93	93	(d) A lienholder may assign a security interest recorded
94	94	under Subsection (b) without making any filing or giving any notice
95	95	under this chapter. The lien assigned remains valid and perfected
96	96	and retains its priority, securing the obligation assigned to the
97	97	assignee, against transferees from and creditors of the original
98	98	debtor, including lien creditors, as defined by Section 9.102,
99	99	Business & Commerce Code.
100	100	(e) An assignee or assignor may, but need not to retain the
101	101	validity, perfection, and priority of the lien assigned, as
102	102	evidence of the assignment of the lien recorded under Subsection
103	103	(b), apply to the department for the assignee to be named as
104	104	lienholder on the statement of ownership and location and notify
105	105	the debtor of the assignment. Failure to make application under
106	106	this subsection or notify a debtor of an assignment does not create
107	107	a cause of action against the recorded lienholder, the assignor, or
108	108	the assignee or affect the continuation of the perfected status of
109	109	the assigned lien in favor of the assignee against transferees from
110	110	and creditors of the original debtor, including lien creditors, as
111	111	defined by Section 9.102, Business & Commerce Code.
112	112	SECTION 4. Section 31.052, Parks and Wildlife Code, is
113	113	amended by amending Subsection (a) and adding Subsections (c) and
114	114	(d) to read as follows:
115	115	(a) Except as provided by this section and Section
116	116	31.050(c), [in Subsection (c) of Section 31.050 of this code] and
117	117	except for statutory liens, security interests in a vessel or
118	118	outboard motor shall be noted on the certificate of title of the
119	119	vessel or outboard motor to which the security interest applies. On
120	120	recordation of a security interest on the certificate of title, the
121	121	recorded security interest owner and assignees under Subsection (c)
122	122	obtain priority over the rights of a lien creditor, as defined by
123	123	Section 9.102, Business & Commerce Code, for so long as the security
124	124	interest is recorded on the certificate of title.
125	125	(c) A security interest owner may assign a security interest
126	126	recorded under this chapter without making any filing or giving any
127	127	notice under this chapter. The security interest assigned remains
128	128	valid and perfected and retains its priority, securing the
129	129	obligation assigned to the assignee, against transferees from and
130	130	creditors of the original debtor, including lien creditors, as
131	131	defined by Section 9.102, Business & Commerce Code.
132	132	(d) An assignee or assignor may, but need not to retain the
133	133	validity, perfection, and priority of the security interest
134	134	assigned, as evidence of the assignment of the security interest
135	135	recorded under this chapter, apply to the department or a county
136	136	assessor-collector for the assignee to be named as security
137	137	interest owner on the certificate of title and notify the debtor of
138	138	the assignment. Failure to make application under this subsection
139	139	or notify a debtor of an assignment does not create a cause of
140	140	action against the recorded security interest owner, the assignor,
141	141	or the assignee or affect the continuation of the perfected status
142	142	of the assigned security interest in favor of the assignee against
143	143	transferees from and creditors of the original debtor, including
144	144	lien creditors, as defined by Section 9.102, Business & Commerce
145	145	Code.
146	146	SECTION 5. Section 501.113(b), Transportation Code, is
147	147	amended to read as follows:
148	148	(b) For purposes of Chapter 9, Business & Commerce Code, the
149	149	time of recording a lien under this chapter is considered to be the
150	150	time of filing the security interest, and on such recordation, the
151	151	recorded lienholder and assignees under Section 501.114 obtain
152	152	priority over the rights of a lien creditor, as defined by Section
153	153	9.102, Business & Commerce Code, for so long as the lien is recorded
154	154	on the certificate of title.
155	155	SECTION 6. Section 501.114, Transportation Code, is amended
156	156	to read as follows:
157	157	Sec. 501.114. ASSIGNMENT OF LIEN. (a) A lienholder may
158	158	assign a lien recorded under Section 501.113 without making any
159	159	filing or giving any notice under this chapter. The lien assigned
160	160	remains valid and perfected and retains its priority, securing the
161	161	obligation assigned to the assignee, against transferees from and
162	162	creditors of the original debtor, including lien creditors, as
163	163	defined by Section 9.102, Business & Commerce Code.
164	164	(b) An assignee or assignor may, but need not to retain the
165	165	validity, perfection, and priority of the lien assigned, as
166	166	evidence of the assignment of a lien recorded under Section 501.113
167	167	[by]:
168	168	(1) apply [applying] to the county
169	169	assessor-collector for the assignee to be named as lienholder on
170	170	the certificate of title [assignment of the lien]; and
171	171	(2) notify [notifying] the debtor of the assignment.
172	172	(c) Failure [(b) A lienholder's failure] to make
173	173	application under this section or notify a debtor of an assignment
174	174	under Subsection (b) does not create a cause of action against the
175	175	recorded lienholder, the assignor, or the assignee or affect the
176	176	continuation or perfected status of the assigned lien in favor of
177	177	the assignee against transferees from and creditors of the original
178	178	debtor, including lien creditors, as defined by Section 9.102,
179	179	Business & Commerce Code.
180	180	(d) [(c)] An application under Subsection (b) [(a)] must
181	181	be:
182	182	(1) signed by the assignee [person to whom the lien is
183	183	assigned]; and
184	184	(2) accompanied by:
185	185	(A) the applicable fee;
186	186	(B) a copy of the assignment agreement executed
187	187	by the parties; and
188	188	(C) the certificate of title on which the lien to
189	189	be assigned is recorded.
190	190	(e) [(d)] On receipt of the completed application and fee,
191	191	the department:
192	192	(1) may amend the department's records to substitute
193	193	the assignee [subsequent lienholder] for the recorded [previous]
194	194	lienholder; and
195	195	(2) shall issue a new certificate of title as provided
196	196	by Section 501.027.
197	197	(f) [(e)] The issuance of a certificate of title under
198	198	Subsection (e) [(d)] is recordation of the assignment.
199	199	(g) Regardless of whether application is made for the
200	200	assignee to be named as lienholder on the certificate of title, the
201	201	[The] time of the recordation of a lien assigned under this section
202	202	is considered to be the time the lien was initially recorded under
203	203	Section 501.113.
204	204	SECTION 7. This Act is intended to clarify that under
205	205	existing law, an assignment of a recorded security interest may be
206	206	recorded on the title, but does not have to be recorded on the
207	207	title, to retain the validity, perfection, and priority of the
208	208	security interest securing the obligation assigned to the assignee.
209	209	SECTION 8. This Act takes effect immediately if it receives
210	210	a vote of two-thirds of all the members elected to each house, as
211	211	provided by Section 39, Article III, Texas Constitution. If this
212	212	Act does not receive the vote necessary for immediate effect, this
213	213	Act takes effect September 1, 2009.