Texas 2009 - 81st Regular

Texas House Bill HB3945 Compare Versions

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1	1	H.B. No. 3945
2	2
3	3
4	4	AN ACT
5	5	relating to a title insurance company affidavit as a release of
6	6	lien.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. Section 12.017(a), Property Code, is amended by
9	9	amending Subdivision (6) and adding Subdivision (7) to read as
10	10	follows:
11	11	(6) "Title insurance company" means a corporation or
12	12	other business entity authorized [and licensed] to engage in
13	13	[transact] the business of insuring titles to interests in real
14	14	property in this state.
15	15	(7) "Authorized title insurance agent," with respect
16	16	to an Affidavit as Release of Lien under this section, means a
17	17	person licensed as a title insurance agent under Chapter 2651,
18	18	Insurance Code, and authorized in writing by a title insurance
19	19	company by instrument recorded in the real property records in the
20	20	county in which the property to which the affidavit relates is
21	21	located to execute one or more Affidavits as Release of Lien in
22	22	compliance with this section, subject to any terms, limitations,
23	23	and conditions that are set forth in the instrument executed by the
24	24	title insurance company.
25	25	SECTION 2. Section 12.017, Property Code, is amended by
26	26	amending Subsections (b), (c), (d), (e), (f), (g), (h), and (i) and
27	27	adding Subsections (j) and (k) to read as follows:
28	28	(b) This section applies only to a mortgage on:
29	29	(1) property consisting exclusively of a
30	30	one-to-four-family residence, including a residential unit in a
31	31	condominium regime; or
32	32	(2) property other than property described by
33	33	Subdivision (1), if the original face amount of the indebtedness
34	34	secured by the mortgage on the property is less than $1.5 million.
35	35	(c) An [If a mortgagee fails to execute and deliver a
36	36	release of mortgage to the mortgagor or the mortgagor's designated
37	37	agent within 60 days after the date of receipt of payment of the
38	38	mortgage by the mortgagee in accordance with a payoff statement
39	39	furnished by the mortgagee or its mortgage servicer, an] authorized
40	40	officer of a title insurance company or an authorized title
41	41	insurance agent may, on behalf of the mortgagor or a transferee of
42	42	the mortgagor who acquired title to the property described in the
43	43	mortgage, execute an affidavit that complies with the requirements
44	44	of this section and record the affidavit in the real property
45	45	records of each county in which the mortgage was recorded.
46	46	(d) An affidavit executed under Subsection (c) [this
47	47	section] must be in substantially the following form [state that]:
48	48	AFFIDAVIT AS RELEASE OF LIEN
49	49	Before me, the undersigned authority, on this day personally
50	50	appeared (insert name of affiant) ("Affiant") who, being first duly
51	51	sworn, upon his/her oath states:
52	52	1. My name is (insert name of Affiant), and I am an
53	53	authorized officer of (insert name of title insurance company or
54	54	authorized title insurance agent) ("Title Company").
55	55	2. This affidavit is made on behalf of the mortgagor or a
56	56	transferee of the mortgagor who acquired title to the property
57	57	described in the following mortgage:
58	58	(describe mortgage, the name of the mortgagor, and the property
59	59	described in the mortgage)
60	60	3. (Insert name of Mortgagee) ("Mortgagee") provided a
61	61	payoff statement with respect to the loan secured by the mortgage.
62	62	4. Affiant has ascertained that Title Company delivered to
63	63	Mortgagee payment of the loan secured by the mortgage in the amount
64	64	and time and to the location required by the payoff statement.
65	65	5. The mortgage relates to:
66	66	(A) property consisting exclusively of a
67	67	one-to-four-family residence, which may include a residential unit
68	68	in a condominium regime; or
69	69	(B) property, other than property described by
70	70	Paragraph (A) above, for which the original face amount of the
71	71	indebtedness secured by the mortgage on the property is less than
72	72	$1.5 million.
73	73	6. Pursuant to Section 12.017, Texas Property Code, this
74	74	affidavit constitutes a full and final release of the mortgage from
75	75	the property.
76	76	Signed this___ day of ___________, ____.
77	77	__________________________________________ (signature of affiant)
78	78	State of ______________
79	79	County of _____________
80	80	Sworn to and subscribed to before me on __________ (date) by
81	81	____________ (insert name of affiant).
82	82	_________________________________ (signature of notarial officer)
83	83	(Seal, if any, of notary) __________
84	84	___________________________________________________ (printed
85	85	name)
86	86	My commission expires:
87	87	______________________
88	88	[(1) the affiant is an authorized officer of a title
89	89	insurance company;
90	90	[(2) the affidavit is made on behalf of the mortgagor
91	91	or a transferee of the mortgagor who acquired title to the property
92	92	described in the mortgage;
93	93	[(3) the mortgagee provided a payoff statement with
94	94	respect to the loan secured by the mortgage;
95	95	[(4) the affiant has ascertained that the mortgagee
96	96	has received payment of the loan secured by the mortgage in
97	97	accordance with the payoff statement, as evidenced by:
98	98	[(A) a bank check, certified check, escrow
99	99	account check from the title company or title insurance agent, or
100	100	attorney trust account check that has been negotiated by the
101	101	mortgagee; or
102	102	[(B) another documentary evidence of the receipt
103	103	of payment by the mortgagee;
104	104	[(5) more than 60 days have elapsed since the date
105	105	payment was received by the mortgagee;
106	106	[(6) the title insurance company or its agent has
107	107	given the mortgagee at least 15 days' notice in writing of its
108	108	intention to execute and record an affidavit in accordance with
109	109	this section, with a copy of the proposed affidavit attached to the
110	110	written notice; and
111	111	[(7) the mortgagee has not responded in writing to the
112	112	notification, or a request for additional payment made by the
113	113	mortgagee has been complied with at least 15 days before the date of
114	114	the affidavit.]
115	115	(e) An [The] affidavit filed under Subsection (c) or (f)
116	116	must include the names of the mortgagor and the mortgagee, the date
117	117	of the mortgage, and the volume and page or clerk's file number of
118	118	the real property records where the mortgage is recorded, together
119	119	with similar information for a recorded assignment of the mortgage.
120	120	(f) On or after the date of the payment to which the
121	121	affidavit relates, the title insurance company or authorized title
122	122	insurance agent must notify the mortgagee at the location to which
123	123	the payment is sent that the title insurance company or authorized
124	124	title insurance agent may file for record at any time the affidavit
125	125	as a release of lien. If notice required by this section is not
126	126	provided to the mortgagee, the title insurance company or
127	127	authorized title insurance agent may not file for record the
128	128	affidavit as a release of lien. The mortgagee may file a separate
129	129	affidavit describing the mortgage and property and controverting
130	130	the affidavit by the title insurance company or authorized title
131	131	insurance agent as a release of lien on or before the 45th day after
132	132	the date the mortgagee receives the notice if the mortgagee mails a
133	133	copy of the mortgagee's affidavit to the title insurance company or
134	134	authorized title insurance agent within that 45-day period. [The
135	135	affiant must attach to the affidavit a photostatic copy, certified
136	136	as a true copy of the original document, of:
137	137	[(1) the documentary evidence that payment has been
138	138	received by the mortgagee, including the mortgagee's endorsement of
139	139	a negotiated check if paid by check; and
140	140	[(2) the payoff statement.]
141	141	(g) An affidavit under Subsection (c) [that is executed and
142	142	recorded as provided by this section] operates as a release of the
143	143	mortgage described in the affidavit if the affidavit, as provided
144	144	by this section:
145	145	(1) is executed;
146	146	(2) is recorded; and
147	147	(3) is not controverted by a separate affidavit by the
148	148	mortgagee in accordance with the requirements of Subsection (f).
149	149	(h) The county clerk shall index an [the] affidavit filed
150	150	under this section in the names of the original mortgagee and the
151	151	last assignee of the mortgage appearing of record as the grantors
152	152	and in the name of the mortgagor as grantee.
153	153	(i) A person who knowingly causes an affidavit with false
154	154	information to be executed and recorded under this section is
155	155	liable for the penalties for filing a false affidavit, including
156	156	the penalties for commission of offenses under Section 37.02 of the
157	157	Penal Code[, and to a party injured by the affidavit for actual
158	158	damages or $5,000, whichever is greater]. The attorney general may
159	159	sue to collect the penalty. A person who negligently causes an
160	160	affidavit with false information to be executed and recorded under
161	161	this section is liable to a party injured by the affidavit for
162	162	actual damages. If the attorney general or an injured party
163	163	bringing suit substantially prevails in an action under this
164	164	subsection, the court may award reasonable attorney's fees and
165	165	court costs to the prevailing party.
166	166	(j) A title insurance company or authorized title insurance
167	167	agent that, at any time after payment of the mortgage, files for
168	168	record an affidavit executed under Subsection (c) may use any
169	169	recording fee collected for the recording of a release of the
170	170	mortgage for the purpose of filing the affidavit.
171	171	(k) This section does not affect any agreement or obligation
172	172	of a mortgagee to execute and deliver a release of mortgage.
173	173	SECTION 3. The change in law made by this Act applies only
174	174	to an affidavit filed on or after the effective date of this Act. An
175	175	affidavit filed before the effective date of this Act is governed by
176	176	the law in effect immediately before the effective date of this Act,
177	177	and that law is continued in effect for that purpose.
178	178	SECTION 4. This Act takes effect September 1, 2009.
179	179	______________________________ ______________________________
180	180	President of the Senate Speaker of the House
181	181	I certify that H.B. No. 3945 was passed by the House on May 4,
182	182	2009, by the following vote: Yeas 143, Nays 0, 2 present, not
183	183	voting.
184	184	______________________________
185	185	Chief Clerk of the House
186	186	I certify that H.B. No. 3945 was passed by the Senate on May
187	187	26, 2009, by the following vote: Yeas 31, Nays 0.
188	188	______________________________
189	189	Secretary of the Senate
190	190	APPROVED: _____________________
191	191	Date
192	192	_____________________
193	193	Governor