Texas 2009 - 81st Regular

Texas Senate Bill SB1592 Compare Versions

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1	1	S.B. No. 1592
2	2
3	3
4	4	AN ACT
5	5	relating to the assignment of security interests in certain
6	6	collateral.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. Subsection (a), Section 261.004, Business &
9	9	Commerce Code, is amended to read as follows:
10	10	(a) Subject to Subsection (b), the filing with the secretary
11	11	of state of a utility security instrument executed by a utility and
12	12	described by Section 261.003(1) and payment of the filing fee
13	13	prescribed by Section 261.008:
14	14	(1) constitute perfection of a security interest
15	15	created by the instrument in any personal property:
16	16	(A) in which a security interest may be perfected
17	17	by filing under Chapter 9, including any goods that are or will
18	18	become a fixture;
19	19	(B) that is located in this state; and
20	20	(C) that was owned by the utility when the
21	21	instrument was executed or is to be acquired by the utility after
22	22	the instrument is executed; [and]
23	23	(2) if the instrument is proven, acknowledged, or
24	24	certified as otherwise required by law for the recording of real
25	25	property mortgages, serve as notice to all persons of the existence
26	26	of the instrument and the security interest granted by the
27	27	instrument in any real property, or in any fixture on or to be
28	28	placed on the property, that:
29	29	(A) is located in this state; and
30	30	(B) was owned by the utility when the instrument
31	31	was executed or is to be acquired by the utility after the
32	32	instrument is executed; and
33	33	(3) result in priority of the secured party reflected
34	34	on the utility security instrument and assignees under Section
35	35	261.012 over the rights of a lien creditor, as defined by Section
36	36	9.102, for so long as the lien is recorded on the utility security
37	37	instrument.
38	38	SECTION 2. Chapter 261, Business & Commerce Code, is
39	39	amended by adding Section 261.012 to read as follows:
40	40	Sec. 261.012. ASSIGNMENT OF SECURITY INTEREST. (a) A
41	41	secured party may assign a security interest recorded under Section
42	42	261.004 without making any filing or giving any notice under this
43	43	chapter. The security interest assigned remains valid and
44	44	perfected and retains its priority, securing the obligation
45	45	assigned to the assignee, against transferees from and creditors of
46	46	the debtor utility, including lien creditors, as defined by Section
47	47	9.102.
48	48	(b) An assignee or assignor may, but need not to retain the
49	49	validity, perfection, and priority of the security interest
50	50	assigned, as evidence of the assignment of the security interest
51	51	recorded under Section 261.004, apply to the secretary of state for
52	52	the assignee to be reflected as secured party on the utility
53	53	security instrument and notify the debtor utility of the
54	54	assignment. Failure to make application under this section or
55	55	notify a debtor utility of an assignment does not create a cause of
56	56	action against the secured party reflected on the utility security
57	57	instrument, the assignor, or the assignee or affect the
58	58	continuation of the perfected status of the assigned security
59	59	interest in favor of the assignee against transferees from and
60	60	creditors of the debtor utility, including lien creditors, as
61	61	defined by Section 9.102.
62	62	SECTION 3. Section 31.052, Parks and Wildlife Code, is
63	63	amended by amending Subsection (a) and adding Subsections (c) and
64	64	(d) to read as follows:
65	65	(a) Except as provided by this section and Section
66	66	31.050(c), [in Subsection (c) of Section 31.050 of this code] and
67	67	except for statutory liens, security interests in a vessel or
68	68	outboard motor shall be noted on the certificate of title of the
69	69	vessel or outboard motor to which the security interest applies. On
70	70	recordation of a security interest on the certificate of title, the
71	71	recorded security interest owner and assignees under Subsection (c)
72	72	obtain priority over the rights of a lien creditor, as defined by
73	73	Section 9.102, Business & Commerce Code, for so long as the security
74	74	interest is recorded on the certificate of title.
75	75	(c) A security interest owner may assign a security interest
76	76	recorded under this chapter without making any filing or giving any
77	77	notice under this chapter. The security interest assigned remains
78	78	valid and perfected and retains its priority, securing the
79	79	obligation assigned to the assignee, against transferees from and
80	80	creditors of the debtor, including lien creditors, as defined by
81	81	Section 9.102, Business & Commerce Code.
82	82	(d) An assignee or assignor may, but need not to retain the
83	83	validity, perfection, and priority of the security interest
84	84	assigned, as evidence of the assignment of the security interest
85	85	recorded under this chapter, apply to the department or a county
86	86	assessor-collector for the assignee to be named as security
87	87	interest owner on the certificate of title and notify the debtor of
88	88	the assignment. Failure to make application under this subsection
89	89	or notify a debtor of an assignment does not create a cause of
90	90	action against the recorded security interest owner, the assignor,
91	91	or the assignee or affect the continuation of the perfected status
92	92	of the assigned security interest in favor of the assignee against
93	93	transferees from and creditors of the debtor, including lien
94	94	creditors, as defined by Section 9.102, Business & Commerce Code.
95	95	SECTION 4. Subsection (b), Section 501.113, Transportation
96	96	Code, is amended to read as follows:
97	97	(b) For purposes of Chapter 9, Business & Commerce Code, the
98	98	time of recording a lien under this chapter is considered to be the
99	99	time of filing the security interest, and on such recordation, the
100	100	recorded lienholder and assignees under Section 501.114 obtain
101	101	priority over the rights of a lien creditor, as defined by Section
102	102	9.102, Business & Commerce Code, for so long as the lien is recorded
103	103	on the certificate of title.
104	104	SECTION 5. Section 501.114, Transportation Code, is amended
105	105	to read as follows:
106	106	Sec. 501.114. ASSIGNMENT OF LIEN. (a) A lienholder may
107	107	assign a lien recorded under Section 501.113 without making any
108	108	filing or giving any notice under this chapter. The lien assigned
109	109	remains valid and perfected and retains its priority, securing the
110	110	obligation assigned to the assignee, against transferees from and
111	111	creditors of the debtor, including lien creditors, as defined by
112	112	Section 9.102, Business & Commerce Code.
113	113	(b) An assignee or assignor may, but need not to retain the
114	114	validity, perfection, and priority of the lien assigned, as
115	115	evidence of the assignment of a lien recorded under Section 501.113
116	116	[by]:
117	117	(1) apply [applying] to the county
118	118	assessor-collector for the assignee to be named as lienholder on
119	119	the certificate of title [assignment of the lien]; and
120	120	(2) notify [notifying] the debtor of the assignment.
121	121	(c) Failure [(b) A lienholder's failure] to make
122	122	application under Subsection (b) or notify a debtor of an
123	123	assignment does not create a cause of action against the recorded
124	124	lienholder, the assignor, or the assignee or affect the
125	125	continuation of the perfected status of the assigned lien in favor
126	126	of the assignee against transferees from and creditors of the
127	127	debtor, including lien creditors, as defined by Section 9.102,
128	128	Business & Commerce Code.
129	129	(d) [(c)] An application under Subsection (b) [(a)] must
130	130	be:
131	131	(1) signed by the assignee [person to whom the lien is
132	132	assigned]; and
133	133	(2) accompanied by:
134	134	(A) the applicable fee;
135	135	(B) a copy of the assignment agreement executed
136	136	by the parties; and
137	137	(C) the certificate of title on which the lien to
138	138	be assigned is recorded.
139	139	(e) [(d)] On receipt of the completed application and fee,
140	140	the department:
141	141	(1) may amend the department's records to substitute
142	142	the assignee [subsequent lienholder] for the recorded [previous]
143	143	lienholder; and
144	144	(2) shall issue a new certificate of title as provided
145	145	by Section 501.027.
146	146	(f) [(e)] The issuance of a certificate of title under
147	147	Subsection (e) [(d)] is recordation of the assignment.
148	148	(g) Regardless of whether application is made for the
149	149	assignee to be named as lienholder on the certificate of title, the
150	150	[The] time of the recordation of a lien assigned under this section
151	151	is considered to be the time the lien was initially recorded under
152	152	Section 501.113.
153	153	(h) Notwithstanding Subsections (a)-(g) and procedures that
154	154	may be conducted under those subsections, the assignment of a lien
155	155	does not affect the procedures applicable to the foreclosure of a
156	156	worker's lien under Chapter 70, Property Code, or the rights of the
157	157	holder of a worker's lien. Notice given to the last known
158	158	lienholder of record, as provided by that chapter, is adequate to
159	159	allow foreclosure under that chapter.
160	160	(i) Notwithstanding Subsections (a)-(g) and the procedures
161	161	that may be conducted under those subsections, the assignment of a
162	162	lien does not affect the procedures applicable to the release of a
163	163	holder's lien under Section 348.408, Finance Code.
164	164	SECTION 6. This Act is intended to clarify that under
165	165	existing law, an assignment of a recorded security interest may be
166	166	recorded on the title, but does not have to be recorded on the title
167	167	to retain the validity, perfection, and priority of the security
168	168	interest securing the obligation assigned to the assignee.
169	169	SECTION 7. This Act takes effect immediately if it receives
170	170	a vote of two-thirds of all the members elected to each house, as
171	171	provided by Section 39, Article III, Texas Constitution. If this
172	172	Act does not receive the vote necessary for immediate effect, this
173	173	Act takes effect September 1, 2009.
174	174	______________________________ ______________________________
175	175	President of the Senate Speaker of the House
176	176	I hereby certify that S.B. No. 1592 passed the Senate on
177	177	April 16, 2009, by the following vote: Yeas 31, Nays 0; and that
178	178	the Senate concurred in House amendment on May 29, 2009, by the
179	179	following vote: Yeas 31, Nays 0.
180	180	______________________________
181	181	Secretary of the Senate
182	182	I hereby certify that S.B. No. 1592 passed the House, with
183	183	amendment, on May 15, 2009, by the following vote: Yeas 144,
184	184	Nays 0, one present not voting.
185	185	______________________________
186	186	Chief Clerk of the House
187	187	Approved:
188	188	______________________________
189	189	Date
190	190	______________________________
191	191	Governor