Texas 2009 - 81st Regular

Texas Senate Bill SB2121 Compare Versions

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1	1	81R31780 PMO-F
2	2	By: West S.B. No. 2121
3	3	Substitute the following for S.B. No. 2121:
4	4	By: Elkins C.S.S.B. No. 2121
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the persons entitled to redeem property after the
10	10	foreclosure of a property owners' association's assessment lien.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 209.010, Property Code, is amended by
13	13	amending Subsections (a) and (b) and adding Subsections (b-1) and
14	14	(b-2) to read as follows:
15	15	(a) A property owners' association that conducts a
16	16	foreclosure sale of an owner's lot must send to the lot owner and to
17	17	each lienholder of record, not later than the 30th day after the
18	18	date of the foreclosure sale, a written notice stating the date and
19	19	time the sale occurred and informing the lot owner and each
20	20	lienholder of record of the [owner's] right of the lot owner and
21	21	lienholder to redeem the property under Section 209.011.
22	22	(b) The notice must be sent by certified mail, return
23	23	receipt requested, to:
24	24	(1) the lot owner's last known mailing address, as
25	25	reflected in the records of the property owners' association;
26	26	(2) the address of each holder of a lien on the
27	27	property subject to foreclosure evidenced by the most recent deed
28	28	of trust filed of record in the real property records of the county
29	29	in which the property is located; and
30	30	(3) the address of each transferee or assignee of a
31	31	deed of trust described by Subdivision (2) who has provided notice
32	32	to a property owners' association of such assignment or transfer.
33	33	Notice provided by a transferee or assignee to a property owners'
34	34	association shall be in writing, shall contain the mailing address
35	35	of the transferee or assignee, and shall be mailed by certified
36	36	mail, return receipt requested, or United States mail with
37	37	signature confirmation to the property owners' association
38	38	according to the mailing address of the property owners'
39	39	association pursuant to the most recent management certificate
40	40	filed of record pursuant to Section 209.004.
41	41	(b-1) If a recorded instrument does not include an address
42	42	for the lienholder, the association does not have a duty to notify
43	43	the lienholder as provided by this section.
44	44	(b-2) For purposes of this section, the lot owner is deemed
45	45	to have given approval for the association to notify the
46	46	lienholder.
47	47	SECTION 2. Subsections (b), (d), (e), (f), (g), (h), (j),
48	48	(k), (m), (n), and (p), Section 209.011, Property Code, are amended
49	49	to read as follows:
50	50	(b) The owner of property in a residential subdivision or a
51	51	lienholder of record may redeem the property from any purchaser at a
52	52	sale foreclosing a property owners' association's assessment lien
53	53	not later than the 180th day after the date the association mails
54	54	written notice of the sale to the owner and the lienholder under
55	55	Section 209.010.
56	56	(d) To redeem property purchased by the property owners'
57	57	association at the foreclosure sale, the lot owner or lienholder
58	58	must pay to the association:
59	59	(1) all amounts due the association at the time of the
60	60	foreclosure sale;
61	61	(2) interest from the date of the foreclosure sale to
62	62	the date of redemption on all amounts owed the association at the
63	63	rate stated in the dedicatory instruments for delinquent
64	64	assessments or, if no rate is stated, at an annual interest rate of
65	65	10 percent;
66	66	(3) costs incurred by the association in foreclosing
67	67	the lien and conveying the property to the redeeming lot owner,
68	68	including reasonable attorney's fees;
69	69	(4) any assessment levied against the property by the
70	70	association after the date of the foreclosure sale;
71	71	(5) any reasonable cost incurred by the association,
72	72	including mortgage payments and costs of repair, maintenance, and
73	73	leasing of the property; and
74	74	(6) the purchase price paid by the association at the
75	75	foreclosure sale less any amounts due the association under
76	76	Subdivision (1) that were satisfied out of foreclosure sale
77	77	proceeds.
78	78	(e) To redeem property purchased at the foreclosure sale by
79	79	a person other than the property owners' association, the lot owner
80	80	or lienholder:
81	81	(1) must pay to the association:
82	82	(A) all amounts due the association at the time
83	83	of the foreclosure sale less the foreclosure sales price received
84	84	by the association from the purchaser;
85	85	(B) interest from the date of the foreclosure
86	86	sale through the date of redemption on all amounts owed the
87	87	association at the rate stated in the dedicatory instruments for
88	88	delinquent assessments or, if no rate is stated, at an annual
89	89	interest rate of 10 percent;
90	90	(C) costs incurred by the association in
91	91	foreclosing the lien and conveying the property to the redeeming
92	92	lot owner, including reasonable attorney's fees;
93	93	(D) any unpaid assessments levied against the
94	94	property by the association after the date of the foreclosure sale;
95	95	and
96	96	(E) taxable costs incurred in a proceeding
97	97	brought under Subsection (a); and
98	98	(2) must pay to the person who purchased the property
99	99	at the foreclosure sale:
100	100	(A) any assessments levied against the property
101	101	by the association after the date of the foreclosure sale and paid
102	102	by the purchaser;
103	103	(B) the purchase price paid by the purchaser at
104	104	the foreclosure sale;
105	105	(C) the amount of the deed recording fee;
106	106	(D) the amount paid by the purchaser as ad
107	107	valorem taxes, penalties, and interest on the property after the
108	108	date of the foreclosure sale; and
109	109	(E) taxable costs incurred in a proceeding
110	110	brought under Subsection (a).
111	111	(f) If a lot owner or lienholder redeems the property under
112	112	this section, the purchaser of the property at foreclosure shall
113	113	immediately execute and deliver to the redeeming party [owner] a
114	114	deed transferring the property to the [redeeming] lot owner. If a
115	115	purchaser fails to comply with this section, the lot owner or
116	116	lienholder may file an [a cause of] action against the purchaser and
117	117	may recover reasonable attorney's fees from the purchaser if the
118	118	lot owner or the lienholder is the prevailing party in the action.
119	119	(g) If, before the expiration of the redemption period, the
120	120	redeeming lot owner or lienholder fails to record the deed from the
121	121	foreclosing purchaser or fails to record an affidavit stating that
122	122	the lot owner or lienholder has redeemed the property, the lot
123	123	owner's or lienholder's right of redemption as against a bona fide
124	124	purchaser or lender for value expires after the redemption period.
125	125	(h) The purchaser of the property at the foreclosure sale or
126	126	a person to whom the person who purchased the property at the
127	127	foreclosure sale transferred the property may presume conclusively
128	128	that the lot owner or a lienholder did not redeem the property
129	129	unless the lot owner or a lienholder files in the real property
130	130	records of the county in which the property is located:
131	131	(1) a deed from the purchaser of the property at the
132	132	foreclosure sale; or
133	133	(2) an affidavit that:
134	134	(A) states that the property [lot owner] has been
135	135	redeemed [the property]; [and]
136	136	(B) contains a legal description of the property;
137	137	and
138	138	(C) includes the name and mailing address of the
139	139	person who redeemed the property.
140	140	(j) If a person other than the property owners' association
141	141	is the purchaser at the foreclosure sale, before executing a deed
142	142	transferring the property to the [redeeming] lot owner, the
143	143	purchaser shall obtain an affidavit from the association or its
144	144	authorized agent stating that all amounts owed the association
145	145	under Subsection (e) have been paid. The association shall provide
146	146	the purchaser with the affidavit not later than the 10th day after
147	147	the date the association receives all amounts owed to the
148	148	association under Subsection (e). Failure of a purchaser to comply
149	149	with this subsection does not affect the validity of a redemption
150	150	[by a redeeming lot owner].
151	151	(k) Property that is redeemed remains subject to all liens
152	152	and encumbrances on the property before foreclosure. Any lease
153	153	entered into by the purchaser of property at a sale foreclosing an
154	154	assessment lien of a property owners' association is subject to the
155	155	right of redemption provided by this section and the lot owner's
156	156	right to reoccupy the property immediately after [the] redemption.
157	157	(m) If a lot owner or lienholder sends by certified mail,
158	158	return receipt requested, a written request to redeem the property
159	159	on or before the last day of the redemption period, the lot owner's
160	160	or lienholder's right of redemption is extended until the 10th day
161	161	after the date the association and any third party foreclosure
162	162	purchaser provides written notice to the redeeming party [lot
163	163	owner] of the amounts that must be paid to redeem the property.
164	164	(n) After the redemption period and any extended redemption
165	165	period provided by Subsection (m) expires without a redemption of
166	166	the property, the association or third party foreclosure purchaser
167	167	shall record an affidavit in the real property records of the county
168	168	in which the property is located stating that the lot owner or a
169	169	lienholder did not redeem the property during the redemption period
170	170	or any extended redemption period.
171	171	(p) The rights of a lot owner and a lienholder under this
172	172	section also apply if the sale of the lot owner's property is
173	173	conducted by a constable or sheriff as provided by a judgment
174	174	obtained by the property owners' association.
175	175	SECTION 3. Sections 209.010 and 209.011, Property Code, as
176	176	amended by this Act, apply only to a foreclosure sale conducted on
177	177	or after the effective date of this Act. A foreclosure sale
178	178	conducted before the effective date of this Act is governed by the
179	179	law in effect immediately before the effective date of this Act, and
180	180	that law is continued in effect for that purpose.
181	181	SECTION 4. This Act takes effect September 1, 2009.