81R2670 CLG-D
By: Herrero H.B. No. 342
A BILL TO BE ENTITLED
AN ACT
relating to a consumer debt owed by certain military personnel
called to active duty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 392, Finance Code, is amended by adding
Subchapter F to read as follows:
SUBCHAPTER F. DEFERRED COLLECTION OF CONSUMER DEBT
Sec. 392.501. DEFERRED COLLECTION OF DEBT OWED BY CERTAIN
MILITARY PERSONNEL CALLED TO ACTIVE DUTY. (a) An individual is
entitled to defer collection of a consumer debt or abate a suit to
collect a consumer debt if the individual:
(1) is a member of:
(A) the state military forces, as defined by
Section 431.001, Government Code; or
(B) a reserve component of the armed forces of
the United States;
(2) is ordered to active duty for a period of 180 days
or more;
(3) incurred the obligation before the date the
individual was ordered to active duty; and
(4) because of the individual's military service, is
earning at least 10 percent less income than on the date the debt
was incurred and, as a result of this loss of income, is unable to
pay the debt.
(b) To obtain a deferral, an individual must send to the
creditor or debt collector:
(1) an affidavit stating the facts required to be
established by Subsection (a);
(2) a copy of a valid military identification card;
and
(3) a copy of the orders calling the individual to
active duty.
(c) Not later than the fourth day after the date the
individual seeking the deferral sends the affidavit and other
documents required for the deferral under Subsection (b) or the
date the creditor or debt collector receives those documents,
whichever occurs first, the creditor or debt collector shall cease
any collection efforts and may not resume those efforts or file suit
to collect the consumer debt until the 91st day after the date the
individual is no longer on active duty.
(d) To obtain an abatement of a pending suit to collect a
consumer debt of an individual, an affidavit of the individual or,
if authorized by the individual, an affidavit of any spouse,
parent, sibling, or adult child of the individual stating the facts
required to be established by Subsection (a) and the documents
described by Subsections (b)(2) and (3) must be filed in the court
in which the suit is pending. On the filing of the affidavit and
other documents described by this subsection, the court shall abate
the suit until the 91st day after the date the individual no longer
is on active duty. The court shall also abate the suit for the same
period prescribed by this subsection regardless of whether any of
the documents described by this subsection have been filed with the
court if, after a hearing, the court finds the individual is
entitled to the deferral. The clerk of the court shall deliver a
copy of the order abating the suit to the creditor and any
applicable debt collector.
(e) From the date the creditor or debt collector is required
to cease collection efforts under Subsection (c) or the date the
court abates a suit under Subsection (d), whichever occurs first,
an individual entitled to receive a deferral under this section
shall not, during the period of deferral or abatement:
(1) be considered to be in default of the obligation;
(2) be made subject to accrual of interest on any
portion of the obligation;
(3) be subject to a demand for payment of or
acceleration of the remaining payments of the obligation;
(4) be subject to any increase in the periodic payment
amount of the obligation; or
(5) at any time be penalized in any other manner by the
creditor or debt collector because of the deferral.
(f) Notwithstanding the other provisions of this section,
if a married individual who qualifies for a deferral or abatement of
collection of debt as provided by this section dies, the deferral or
abatement continues in effect until the earlier of:
(1) the 91st day after the date of the individual's
death; or
(2) the date the surviving spouse of the individual
remarries.
Sec. 392.502. EXERCISE OF RIGHTS UNDER SUBCHAPTER NOT TO
AFFECT CERTAIN FUTURE TRANSACTIONS. Receipt by an individual of a
deferral or abatement of collection of a consumer debt as provided
by this subchapter shall not provide the sole basis for:
(1) a denial or revocation of an extension of credit by
a creditor, debt collector, or other person;
(2) a change by a creditor or debt collector in the
terms of an existing credit arrangement without the individual's
prior consent;
(3) a refusal by a creditor or debt collector to extend
future credit to the individual in substantially the amount or on
substantially the terms requested;
(4) an adverse report relating to the creditworthiness
of the individual by or to a credit bureau; or
(5) an annotation in the individual's file by a credit
bureau identifying the individual as a member of the state military
forces or a reserve component of the armed forces of the United
States.
Sec. 392.503. WAIVER OF RIGHT VOID. A provision of a
contract or other agreement that purports to be a waiver by an
individual of any right provided by this subchapter is contrary to
public policy and void.
Sec. 392.504. TOLLING OF STATUTE OF LIMITATIONS. The
period of an individual's military service may not be included in
computing any period limited by the law for the bringing of any
action or proceeding under this subchapter.
SECTION 2. Subchapter F, Chapter 392, Finance Code, as
added by this Act, applies only to a member of the state military
forces or a reserve component of the armed forces of the United
States who is ordered to report for or is serving on active duty on
or after the effective date of this Act.
SECTION 3. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2009.