Texas 2009 - 81st Regular

Texas Senate Bill SB471 Compare Versions

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1	1	By: Carona S.B. No. 471
2	2	(In the Senate - Filed January 13, 2009; February 17, 2009,
3	3	read first time and referred to Committee on Finance;
4	4	April 16, 2009, reported adversely, with favorable Committee
5	5	Substitute by the following vote: Yeas 10, Nays 0; April 16, 2009,
6	6	sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR S.B. No. 471 By: Shapiro
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to claims for excess proceeds of a tax sale of real
13	13	property.
14	14	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	15	SECTION 1. Section 34.04, Tax Code, is amended by amending
16	16	Subsections (c), (e), (f), (g), (h), and (i) and adding Subsections
17	17	(c-1) and (j) to read as follows:
18	18	(c) At the hearing the court shall order that the proceeds
19	19	be paid according to the following priorities to each party that
20	20	establishes its claim to the proceeds:
21	21	(1) to the tax sale purchaser if the tax sale has been
22	22	adjudged to be void and the purchaser has prevailed in an action
23	23	against the taxing units under Section 34.07(d) by final judgment;
24	24	(2) to a taxing unit for any taxes, penalties, or
25	25	interest that have become due or delinquent on the subject property
26	26	subsequent to the date of the judgment or that were omitted from the
27	27	judgment by accident or mistake;
28	28	(3) to any other lienholder, consensual or otherwise,
29	29	for the amount due under a lien, in accordance with the priorities
30	30	established by applicable law;
31	31	(4) to a taxing unit for any unpaid taxes, penalties,
32	32	interest, or other amounts adjudged due under the judgment that
33	33	were not satisfied from the proceeds from the tax sale; and
34	34	(5) to each former owner of the property, as the
35	35	interest of each may appear, provided that the former owner:
36	36	(A) was a defendant in the judgment;
37	37	(B) is related within the third degree by
38	38	consanguinity or affinity to a former owner that was a defendant in
39	39	the judgment; or
40	40	(C) acquired by will or intestate succession the
41	41	interest in the property of a former owner that was a defendant in
42	42	the judgment.
43	43	(c-1) Except as provided by Subsections (c)(5)(B) and (C), a
44	44	former owner of the property that acquired an interest in the
45	45	property after the date of the judgment may not establish a claim to
46	46	the proceeds. For purposes of this subsection, a former owner of
47	47	the property is considered to have acquired an interest in the
48	48	property after the date of the judgment if the deed by which the
49	49	former owner acquired the interest was recorded in the real
50	50	property records of the county in which the property is located
51	51	after the date of the judgment.
52	52	(e) An [an] order under this section directing that all or
53	53	part of the excess proceeds be paid to a party is appealable.
54	54	(f) A person may not take an assignment or other transfer of
55	55	an owner's claim to excess proceeds unless:
56	56	(1) the assignment or transfer is taken on or after the
57	57	36th day after the date the excess proceeds are deposited in the
58	58	registry of the court;
59	59	(2) the assignment or transfer is in writing and
60	60	signed by the assignor or transferor; [and]
61	61	(3) the assignment or transfer is not the result of an
62	62	in-person or telephone solicitation;
63	63	(4) the assignee or transferee pays the assignor or
64	64	transferor on the date of the assignment or transfer an amount equal
65	65	to at least 80 percent of the amount of the assignor's or
66	66	transferor's claim to the excess proceeds; and
67	67	(5) the assignment or transfer document contains a
68	68	sworn statement by the assignor or transferor affirming:
69	69	(A) that the assignment or transfer was given
70	70	voluntarily;
71	71	(B) the date on which the assignment or transfer
72	72	was made and that the date was not earlier than the 36th day after
73	73	the date the excess proceeds were deposited in the registry of the
74	74	court;
75	75	(C) that the assignor or transferor has received
76	76	the notice from the clerk required by Section 34.03;
77	77	(D) the nature and specific amount of
78	78	consideration given for the assignment or transfer;
79	79	(E) the circumstances under which the excess
80	80	proceeds are in the registry of the court;
81	81	(F) the amount of the claim to excess proceeds in
82	82	the registry of the court;
83	83	(G) that the assignor or transferor has made no
84	84	other assignments or transfers of the assignor's or transferor's
85	85	claim to the excess proceeds; [and]
86	86	(H) that the assignor or transferor knows that
87	87	the assignor or transferor may retain counsel; and
88	88	(I) that the consideration was paid in full on
89	89	the date of the assignment or transfer and that the consideration
90	90	paid was an amount equal to at least 80 percent of the amount of the
91	91	assignor's or transferor's claim to the excess proceeds.
92	92	(g) An assignee or transferee who obtains excess proceeds
93	93	without complying with Subsection (f) is liable to the assignor or
94	94	transferor for the amount of excess proceeds obtained plus
95	95	attorney's fees and expenses. An assignee or transferee who
96	96	attempts to obtain excess proceeds without complying with
97	97	Subsection (f) is liable to the assignor or transferor for
98	98	attorney's fees and expenses.
99	99	(h) An assignee or transferee who files a petition setting
100	100	forth a claim to excess proceeds must attach a copy of the
101	101	assignment or transfer document and produce the original of the
102	102	assignment or transfer document in court at the hearing on the
103	103	petition. If the original assignment or transfer document is lost,
104	104	the assignee or transferee must obtain the presence of the assignor
105	105	or transferor to testify at the hearing. In addition, the assignee
106	106	or transferee must produce at the hearing the original of any
107	107	evidence verifying the payment of the consideration given for the
108	108	assignment or transfer. If the original of any evidence of the
109	109	payment is lost or if the payment was in cash, the assignee or
110	110	transferee must obtain the presence of the assignor or transferor
111	111	to testify at the hearing.
112	112	(i) A fee charged by an attorney to obtain excess proceeds
113	113	for an owner may not be greater than 25 percent of the amount
114	114	obtained or $1,000, whichever is less. A person who is not an
115	115	attorney may not charge a fee to obtain excess proceeds for an
116	116	owner.
117	117	(j) The amount of the excess proceeds the court may order be
118	118	paid to an assignee or transferee may not exceed 125 percent of the
119	119	amount the assignee or transferee paid the assignor or transferor
120	120	on the date of the assignment or transfer.
121	121	SECTION 2. The change in law made by this Act applies to the
122	122	disposition of excess proceeds of a tax sale paid to the clerk of
123	123	the court that issued the warrant or order of sale regardless of the
124	124	date on which the warrant or order of sale was issued, the tax sale
125	125	was conducted, or the proceeds were paid to the clerk.
126	126	SECTION 3. This Act takes effect September 1, 2009.
127	127	* * * * *