Texas 2009 - 81st Regular

Texas Senate Bill SB1596 Compare Versions

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1	1	By: Watson S.B. No. 1596
2	2	(In the Senate - Filed March 10, 2009; March 17, 2009, read
3	3	first time and referred to Committee on Business and Commerce;
4	4	April 17, 2009, reported adversely, with favorable Committee
5	5	Substitute by the following vote: Yeas 6, Nays 0; April 17, 2009,
6	6	sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR S.B. No. 1596 By: Watson
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to a title insurance company affidavit as a release of
13	13	lien.
14	14	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	15	SECTION 1. Subsection (a), Section 12.017, Property Code,
16	16	is amended by adding Subdivision (5-a) and amending Subdivision (6)
17	17	to read as follows:
18	18	(5-a) "Title insurance agent" means a person licensed
19	19	as a title insurance agent under Chapter 2651, Insurance Code.
20	20	(6) "Title insurance company" means a corporation or
21	21	other business entity authorized [and licensed] to engage in
22	22	[transact] the business of insuring titles to interests in real
23	23	property in this state.
24	24	SECTION 2. Section 12.017, Property Code, is amended by
25	25	amending Subsections (b), (c), (d), (e), (f), (g), (h), and (i) and
26	26	adding Subsections (j) and (k) to read as follows:
27	27	(b) This section applies only to a mortgage on:
28	28	(1) property consisting exclusively of a
29	29	one-to-four-family residence, including a residential unit in a
30	30	condominium regime; or
31	31	(2) property other than property described by
32	32	Subdivision (1), if the original face amount of the indebtedness
33	33	secured by the mortgage on the property is less than $1.5 million.
34	34	(c) An [If a mortgagee fails to execute and deliver a
35	35	release of mortgage to the mortgagor or the mortgagor's designated
36	36	agent within 60 days after the date of receipt of payment of the
37	37	mortgage by the mortgagee in accordance with a payoff statement
38	38	furnished by the mortgagee or its mortgage servicer, an] authorized
39	39	officer of a title insurance company or a title insurance agent may,
40	40	on behalf of the mortgagor or a transferee of the mortgagor who
41	41	acquired title to the property described in the mortgage, execute
42	42	an affidavit that complies with the requirements of this section
43	43	and record the affidavit in the real property records of each county
44	44	in which the mortgage was recorded.
45	45	(d) An affidavit executed under Subsection (c) [this
46	46	section] must be in substantially the following form [state that]:
47	47	AFFIDAVIT AS RELEASE OF LIEN
48	48	Before me, the undersigned authority, on this day personally
49	49	appeared (insert name of affiant) ("Affiant") who, being first duly
50	50	sworn, upon his/her oath states:
51	51	1. My name is (insert name of Affiant), and I am an
52	52	authorized officer of (insert name of title insurance company or
53	53	title insurance agent) ("Title Company").
54	54	2. This affidavit is made on behalf of the mortgagor or a
55	55	transferee of the mortgagor who acquired title to the property
56	56	described in the following mortgage:
57	57	(describe mortgage, the name of the mortgagor, and the property
58	58	described in the mortgage)
59	59	3. (Insert name of Mortgagee) ("Mortgagee") provided a
60	60	payoff statement with respect to the loan secured by the mortgage.
61	61	4. Affiant has ascertained that Title Company delivered to
62	62	Mortgagee payment of the loan secured by the mortgage in the amount
63	63	and time and to the location required by the payoff statement.
64	64	5. The mortgage relates to:
65	65	(A) property consisting exclusively of a
66	66	one-to-four-family residence, which may include a residential unit
67	67	in a condominium regime; or
68	68	(B) property, other than property described by
69	69	Paragraph (A) above, for which the original face amount of the
70	70	indebtedness secured by the mortgage on the property is less than
71	71	$1.5 million.
72	72	6. Pursuant to Section 12.017, Texas Property Code, this
73	73	affidavit constitutes a full and final release of the mortgage from
74	74	the property.
75	75	Signed this___ day of ___________, ____.
76	76	__________________________________________ (signature of affiant)
77	77	State of ______________
78	78	County of _____________
79	79	Sworn to and subscribed to before me on __________ (date) by
80	80	____________ (insert name of affiant).
81	81	_________________________________ (signature of notarial officer)
82	82	(Seal, if any, of notary) __________
83	83	___________________________________________________ (printed
84	84	name)
85	85	My commission expires:
86	86	______________________
87	87	[(1) the affiant is an authorized officer of a title
88	88	insurance company;
89	89	[(2) the affidavit is made on behalf of the mortgagor
90	90	or a transferee of the mortgagor who acquired title to the property
91	91	described in the mortgage;
92	92	[(3) the mortgagee provided a payoff statement with
93	93	respect to the loan secured by the mortgage;
94	94	[(4) the affiant has ascertained that the mortgagee
95	95	has received payment of the loan secured by the mortgage in
96	96	accordance with the payoff statement, as evidenced by:
97	97	[(A) a bank check, certified check, escrow
98	98	account check from the title company or title insurance agent, or
99	99	attorney trust account check that has been negotiated by the
100	100	mortgagee; or
101	101	[(B) another documentary evidence of the receipt
102	102	of payment by the mortgagee;
103	103	[(5) more than 60 days have elapsed since the date
104	104	payment was received by the mortgagee;
105	105	[(6) the title insurance company or its agent has
106	106	given the mortgagee at least 15 days' notice in writing of its
107	107	intention to execute and record an affidavit in accordance with
108	108	this section, with a copy of the proposed affidavit attached to the
109	109	written notice; and
110	110	[(7) the mortgagee has not responded in writing to the
111	111	notification, or a request for additional payment made by the
112	112	mortgagee has been complied with at least 15 days before the date of
113	113	the affidavit.]
114	114	(e) An [The] affidavit filed under Subsection (c) or (f)
115	115	must include the names of the mortgagor and the mortgagee, the date
116	116	of the mortgage, and the volume and page or clerk's file number of
117	117	the real property records where the mortgage is recorded, together
118	118	with similar information for a recorded assignment of the mortgage.
119	119	(f) On or after the date of the payment to which the
120	120	affidavit relates, the title insurance company or title insurance
121	121	agent must notify the mortgagee at the location to which the payment
122	122	is sent that the company or agent may file for record at any time the
123	123	affidavit as a release of lien. If notice required by this section
124	124	is not provided to the mortgagee, the title insurance company or
125	125	title insurance agent may not file for record the affidavit as a
126	126	release of lien. The mortgagee may file a separate affidavit
127	127	describing the mortgage and property and controverting the
128	128	affidavit by the title insurance company or title insurance agent
129	129	as a release of lien on or before the 45th day after the date the
130	130	mortgagee receives the notice if the mortgagee mails a copy of the
131	131	mortgagee's affidavit to the title insurance company or title
132	132	insurance agent within that 45-day period [The affiant must attach
133	133	to the affidavit a photostatic copy, certified as a true copy of the
134	134	original document, of:
135	135	[(1) the documentary evidence that payment has been
136	136	received by the mortgagee, including the mortgagee's endorsement of
137	137	a negotiated check if paid by check; and
138	138	[(2) the payoff statement].
139	139	(g) An affidavit under Subsection (c) [that is executed and
140	140	recorded as provided by this section] operates as a release of the
141	141	mortgage described in the affidavit if the affidavit, as provided
142	142	by this section:
143	143	(1) is executed;
144	144	(2) is recorded; and
145	145	(3) is not controverted by a separate affidavit by the
146	146	mortgagee in accordance with the requirements of Subsection (f).
147	147	(h) The county clerk shall index an [the] affidavit filed
148	148	under this section in the names of the original mortgagee and the
149	149	last assignee of the mortgage appearing of record as the grantors
150	150	and in the name of the mortgagor as grantee.
151	151	(i) A person who knowingly causes an affidavit with false
152	152	information to be executed and recorded under this section is
153	153	liable for the penalties for filing a false affidavit, including
154	154	the penalties for commission of offenses under Section 37.02 of the
155	155	Penal Code, and to a party injured by the affidavit for actual
156	156	damages or $10,000 [$5,000], whichever is greater. The attorney
157	157	general may sue to collect the penalty. If the attorney general or
158	158	an injured party bringing suit substantially prevails in an action
159	159	under this subsection, the court may award reasonable attorney's
160	160	fees and court costs to the prevailing party.
161	161	(j) A title insurance company or title insurance agent that,
162	162	at any time after payment of the mortgage, files for record an
163	163	affidavit executed under Subsection (c) may use any recording fee
164	164	collected for the recording of a release of the mortgage for the
165	165	purpose of filing the affidavit.
166	166	(k) This section does not affect any agreement or obligation
167	167	of a mortgagee to execute and deliver a release of mortgage.
168	168	SECTION 3. The change in law made by this Act applies only
169	169	to an affidavit filed on or after the effective date of this Act. An
170	170	affidavit filed before the effective date of this Act is governed by
171	171	the law in effect immediately before the effective date of this Act,
172	172	and that law is continued in effect for that purpose.
173	173	SECTION 4. This Act takes effect September 1, 2009.
174	174	* * * * *