85R23009 EES-F
By: Hughes S.B. No. 1052
(Flynn)
Substitute the following for S.B. No. 1052: No.
A BILL TO BE ENTITLED
AN ACT
relating to debt cancellation agreements offered in connection with
certain retail installment contracts and leases for vehicles and
deferred payments under motor vehicle retail installment
contracts; providing for a civil penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 345.005, Finance Code, is amended to
read as follows:
Sec. 345.005. ITEMIZED CHARGE. An amount charged to a
retail buyer in a retail installment contract or retail charge
agreement is an itemized charge if the amount is not included in the
cash price and is the amount of:
(1) fees prescribed by law for filing, recording, or
otherwise perfecting, releasing, or satisfying a security interest
created in connection with a retail installment transaction or
nonfiling insurance premiums as authorized by Section 345.212;
(2) fees for registration or a certificate of title;
(3) any taxes;
(4) fees or charges prescribed by law and connected
with the sale or inspection of the goods or services subject to the
contract or agreement;
(5) premiums and other charges for insurance
authorized by Subchapter E;
(6) official fees for a construction permit or the
filing or recording of a construction permit;
(7) a documentary fee authorized under Section
345.251; [and]
(8) in a retail installment transaction involving
modernization, rehabilitation, repair, alteration, improvement, or
construction of real property, reasonable and necessary costs,
including amounts, paid by the holder:
(A) for title insurance or title examination and
opinion that does not exceed the amount set by the commissioner of
insurance for title insurance for the transaction;
(B) to a person who is not a salaried employee of
the holder for an appraisal or inspection or for investigating the
credit standing or creditworthiness of the retail buyer; or
(C) to an attorney who is not a salaried employee
of the holder as a legal fee for the preparation of documents in
connection with the transaction; and
(9) charges for a debt cancellation agreement under
Chapter 354.
SECTION 2. Subchapter B, Chapter 345, Finance Code, is
amended by adding Section 345.084 to read as follows:
Sec. 345.084. DEBT CANCELLATION AGREEMENT. A debt
cancellation agreement under Chapter 354 may be offered in
connection with a retail installment contract for a covered vehicle
to which this chapter applies. For purposes of this section,
"covered vehicle" has the meaning assigned by Section 354.001.
SECTION 3. Section 348.114, Finance Code, is amended by
amending Subsection (a) and adding Subsection (c) to read as
follows:
(a) If a retail installment contract that provides for a
time price differential that is computed using the add-on method or
the scheduled installment earnings method is amended to defer all
or a part of one or more installments for not longer than three
months, the holder may collect from the retail buyer:
(1) a deferment charge in an amount computed on the
amount deferred for the period of deferment at a rate that does not
exceed the effective return for time price differential permitted
for a monthly payment retail installment contract; and
(2) the amount of the additional cost to the holder
for:
(A) premiums for continuing in force any
insurance coverages provided for by the contract; and
(B) any additional necessary official fees.
(c) If a retail installment contract that provides for a
time price differential that is computed using the true daily
earnings method is amended to defer all or a part of one or more
installments, the holder may charge and receive from the retail
buyer time price differential on the unpaid balance of the contract
at the rate agreed to in the contract. At the time of deferment, the
holder must provide the following written notice to the retail
buyer that is boldfaced, capitalized, or underlined or otherwise
conspicuously set out from any surrounding written material:
"FINANCE CHARGES WILL CONTINUE TO ACCRUE ON THE UNPAID BALANCE AT
THE CONTRACT RATE. BY DEFERRING ONE OR MORE INSTALLMENTS, YOU WILL
PAY MORE FINANCE CHARGES THAN ORIGINALLY DISCLOSED." A holder does
not collect a deferment charge by the accrual of time price
differential on the unpaid balance of the contract.
SECTION 4. Section 348.124(a), Finance Code, is amended to
read as follows:
(a) In connection with a retail installment transaction
under this chapter, a retail seller may offer to the retail buyer a
debt cancellation agreement, including a guaranteed asset
protection waiver or similarly named agreement. If the retail
installment transaction requires insurance coverage as part of the
retail buyer's responsibility to the holder, the debt cancellation
agreement, guaranteed asset protection waiver, or similarly named
agreement must be offered under Chapter 354. The retail seller may
not require that the purchase of a debt cancellation agreement by
the retail buyer be made in order to enter into a retail installment
transaction.
SECTION 5. Section 348.208(b), Finance Code, is amended to
read as follows:
(b) A retail installment contract may include as a separate
charge an amount for:
(1) motor vehicle property damage or bodily injury
liability insurance;
(2) mechanical breakdown insurance;
(3) participation in a motor vehicle theft protection
plan;
(4) insurance to reimburse the retail buyer for the
amount computed by subtracting the proceeds of the buyer's basic
collision policy on the motor vehicle from the amount owed on the
vehicle if the vehicle has been rendered a total loss;
(5) a warranty or service contract relating to the
motor vehicle;
(6) an identity recovery service contract; or
(7) a debt cancellation agreement, including a debt
cancellation agreement under Chapter 354, if the agreement is
included as a term of a retail installment contract under Section
348.124.
SECTION 6. Subchapter G, Chapter 348, Finance Code, is
redesignated as Chapter 354, Finance Code, and amended to read as
follows:
CHAPTER 354 [SUBCHAPTER G]. [CERTAIN] DEBT CANCELLATION AGREEMENTS
FOR CERTAIN RETAIL VEHICLE INSTALLMENT SALES
Sec. 354.001. DEFINITIONS. In this chapter:
(1) "Contract" means a retail installment contract
made under Chapter 345 or 348.
(2) "Covered vehicle" includes a self-propelled or
towed vehicle designed for personal use, including an automobile,
truck, motorcycle, recreational vehicle, all-terrain vehicle,
snowmobile, camper, boat, personal watercraft, and personal
watercraft trailer.
(3) "Debt cancellation agreement" means a contract
term or a contractual arrangement modifying a contract term under
which a retail seller or holder agrees to cancel all or part of an
obligation of the retail buyer to repay an extension of credit from
the retail seller or holder on the occurrence of the total loss or
theft of the covered vehicle that is the subject of the contract but
does not include an offer to pay a specified amount on the total
loss or theft of the covered vehicle.
(4) "Holder" means a person who is:
(A) a retail seller; or
(B) the assignee or transferee of a contract.
(5) "Retail buyer" means a person who purchases or
agrees to purchase a covered vehicle from a retail seller in a
retail installment transaction.
(6) "Retail seller" means a person in the business of
selling covered vehicles to retail buyers in retail installment
transactions.
Sec. 354.002 [348.601]. LIMITATION ON CERTAIN DEBT
CANCELLATION AGREEMENTS. (a) This chapter [subchapter] applies
only to a debt cancellation agreement that includes insurance
coverage as part of the retail buyer's responsibility to the
holder.
(b) The amount charged for a debt cancellation agreement
made in connection with a [retail installment] contract may not
exceed five percent of the amount financed pursuant to the [retail
installment] contract. Section 348.124(c) does not apply to a debt
cancellation agreement regulated under this chapter [subchapter].
(c) The debt cancellation agreement becomes a part of or a
separate addendum to the [retail installment] contract and remains
a term of the [retail installment] contract on the assignment,
sale, or transfer by the holder.
(d) A debt cancellation agreement to which this chapter
applies is not insurance.
Sec. 354.003 [348.602]. DEBT CANCELLATION AGREEMENTS
EXCLUSION LANGUAGE. (a) In addition to the provisions required by
Section 354.004 [348.603], a debt cancellation agreement must fully
disclose all provisions permitting the exclusion of loss or damage
including, if applicable:
(1) an act occurring after the original maturity date
or date of the holder's acceleration of the [retail installment]
contract;
(2) any dishonest, fraudulent, illegal, or
intentional act of any authorized driver that directly results in
the total loss of the covered [motor] vehicle;
(3) any act of gross negligence by an authorized
driver that directly results in the total loss of the covered
[motor] vehicle;
(4) conversion, embezzlement, or concealment by any
person in lawful possession of the covered [motor] vehicle;
(5) lawful confiscation by an authorized public
official;
(6) the operation, use, or maintenance of the covered
[motor] vehicle in any race or speed contest;
(7) war, whether or not declared, invasion,
insurrection, rebellion, revolution, or an act of terrorism;
(8) normal wear and tear, freezing, or mechanical or
electrical breakdown or failure;
(9) use of the covered [motor] vehicle for primarily
commercial purposes;
(10) damage that occurs after the covered [motor]
vehicle has been repossessed;
(11) damage to the covered [motor] vehicle before the
purchase of the debt cancellation agreement;
(12) unpaid insurance premiums and salvage, towing,
and storage charges relating to the covered [motor] vehicle;
(13) damage related to any personal property attached
to or within the covered [motor] vehicle;
(14) damages associated with falsification of
documents by any person not associated with the retail seller or
other person canceling the retail buyer's obligation;
(15) any unpaid debt resulting from exclusions in the
retail buyer's primary physical damage coverage not included in the
debt cancellation agreement;
(16) abandonment of the covered [motor] vehicle by the
retail buyer only if the retail buyer voluntarily discards, leaves
behind, or otherwise relinquishes possession of the covered [motor]
vehicle to the extent that the relinquishment shows intent to
forsake and desert the covered [motor] vehicle so that the covered
[motor] vehicle may be appropriated by any other person;
(17) any amounts deducted from the primary insurance
carrier's settlement due to prior damages; and
(18) any loss occurring outside the United States or
outside the United States and Canada.
(b) An exclusion of loss or damage not listed in Subsection
(a) may be included in a debt cancellation agreement only if the
exclusion is disclosed in plain, easy to read language.
Sec. 354.004 [348.603]. REQUIRED DEBT CANCELLATION
AGREEMENT LANGUAGE. A debt cancellation agreement must state:
(1) the contact information of the retail seller, the
holder, and any administrator of the agreement;
(2) the name and address of the retail buyer;
(3) the cost and term of the debt cancellation
agreement;
(4) the procedure the retail buyer must follow to
obtain benefits under the terms of the debt cancellation agreement,
including a telephone number and address where the retail buyer may
provide notice under the debt cancellation agreement;
(5) the period during which the retail buyer is
required to notify the retail seller, the holder, or any
administrator of the agreement[,] of any potential loss under the
debt cancellation agreement for total loss or theft of the covered
[motor] vehicle;
(6) that in order to make a claim, the retail buyer
must provide or complete some or all of the following documents and
provide those documents to the retail seller, the holder, or any
administrator of the agreement:
(A) a debt cancellation request form;
(B) proof of loss and settlement payment from the
retail buyer's primary comprehensive, collision, or uninsured or
underinsured motorist policy or other parties' liability insurance
policy for the settlement of the insured total loss of the covered
[motor] vehicle;
(C) verification of the retail buyer's primary
insurance deductible;
(D) a copy of any police report filed in
connection with the total loss or theft of the covered [motor]
vehicle; and
(E) a copy of the damage estimate;
(7) that documentation not described by Subdivision
(6) or required by the retail seller, the holder, or any
administrator of the agreement is not required to substantiate the
loss or determine the amount of debt to be canceled;
(8) that notwithstanding the collection of the
documents under Subdivision (6), on reasonable advance notice the
retail seller, the holder, or any administrator of the agreement
may inspect the retail buyer's covered [motor] vehicle;
(9) that the retail seller or holder will cancel all or
part of the retail buyer's obligation as provided in the debt
cancellation agreement on the occurrence of total loss or theft of
the covered [motor] vehicle;
(10) the method to be used to calculate refunds;
(11) the method for calculating the amount to be
canceled under the debt cancellation agreement on the occurrence of
total loss or theft of a covered [motor] vehicle;
(12) that purchase of a debt cancellation agreement is
not required for the retail buyer to obtain an extension of credit
and will not be a factor in the credit approval process;
(13) that in order to cancel the debt cancellation
agreement and receive a refund, the retail buyer must provide a
written request to cancel to the retail seller, the holder, or any
administrator of the agreement;
(14) that if total loss or theft of the covered [motor]
vehicle has not occurred, the retail buyer has 30 days from the date
of the [retail installment] contract or the issuance of the debt
cancellation agreement, whichever is later, or a longer period as
provided under the debt cancellation agreement, to cancel the debt
cancellation agreement and receive a full refund;
(15) that the retail buyer may file a complaint with
the commissioner, and include the address, phone number, and
Internet website of the Office of Consumer Credit Commissioner; and
(16) that the holder will cancel certain amounts under
the debt cancellation agreement for total loss or theft of a covered
[motor] vehicle, in the following or substantially similar
language: "YOU WILL CANCEL CERTAIN AMOUNTS I OWE UNDER THIS
CONTRACT IN THE CASE OF A TOTAL LOSS OR THEFT OF THE COVERED VEHICLE
AS STATED IN THE DEBT CANCELLATION AGREEMENT."
Sec. 354.005 [348.604]. APPROVAL OF FORMS FOR DEBT
CANCELLATION AGREEMENTS. (a) Debt cancellation agreement forms
must be submitted to the commissioner for approval. Debt
cancellation agreement forms may include additional language to
supplement the terms of the debt cancellation agreement as required
by this chapter [subchapter].
(b) If a debt cancellation agreement form is provided to the
commissioner for approval, the commissioner has 45 days to approve
the form or deny approval of the form. On the written request of the
person submitting the form, the commissioner may agree in writing
to extend the approval period for an additional 45 days. If after
the 45th day, or the 90th day if the commissioner agrees to an
extension, the commissioner does not deny the form, the form is
considered approved.
(c) If the debt cancellation agreement form is approved by
the commissioner or considered approved as provided by Subsection
(b), the terms of the debt cancellation agreement are considered to
be in compliance with this chapter [subchapter].
(d) The commissioner may deny approval of a form only if the
form excludes the language required by Sections 354.003 [348.602]
and 354.004 [348.603] or contains any inconsistent or misleading
provisions. All form denials may be appealed to the finance
commission.
(e) If after approval of a form the Office of Consumer
Credit Commissioner discovers that approval could have been denied
under Subsection (d), the commissioner may order a retail seller,
any administrator of the debt cancellation agreement, or a holder
to submit a corrected form for approval. Beginning as soon as
reasonably practicable after approval of the corrected form, the
retail seller, administrator, or holder shall use the corrected
form for all sales.
(f) A debt cancellation agreement form that has been
approved by the commissioner is public information subject to
disclosure under Chapter 552, Government Code. Section 552.110,
Government Code, does not apply to a form approved under this
chapter [subchapter].
Sec. 354.006 [348.605]. ADDITIONAL REQUIREMENTS FOR DEBT
CANCELLATION AGREEMENTS. (a) If a retail buyer purchases a debt
cancellation agreement, the retail seller must provide to the
retail buyer a true and correct copy of the agreement not later than
the 10th day after the date of the [retail installment] contract.
(b) A holder must comply with the terms of a debt
cancellation agreement not later than the 60th day after the date of
receipt of all necessary information required by the holder or
administrator of the agreement to process the request.
(c) A debt cancellation agreement may not knowingly be
offered by a retail seller if:
(1) the [retail installment] contract is already
protected by gap insurance; or
(2) the purchase of the debt cancellation agreement is
required for the retail buyer to obtain the extension of credit.
(d) This section does not apply to a debt cancellation
agreement offered in connection with the purchase of a commercial
vehicle.
(e) The sale of a debt cancellation agreement must be for a
single payment.
(f) A holder that offers a debt cancellation agreement must
report the sale of and forward money received on all such agreements
to any designated party as prescribed in any applicable
administrative services agreement, contractual liability policy,
other insurance policy, or other specified program documents.
(g) Money received or held by a holder or any administrator
of a debt cancellation agreement and belonging to an insurance
company, holder, or administrator under the terms of a written
agreement must be held by the holder or administrator in a fiduciary
capacity.
(h) A retail seller that negotiates a debt cancellation
agreement and subsequently assigns the contract shall:
(1) maintain documents relating to the agreement that
come into the retail seller's possession; and
(2) on request of the Office of Consumer Credit
Commissioner, cooperate in requesting and obtaining access to
documents relating to the agreement not in the retail seller's
possession.
Sec. 354.007 [348.606]. REFUND FOR DEBT CANCELLATION
AGREEMENTS. (a) A refund or credit of the debt cancellation
agreement fee must be based on the earliest date of:
(1) the prepayment of the [retail installment]
contract in full before the original maturity date;
(2) a demand by the holder for payment in full of the
unpaid balance or acceleration;
(3) a request by the retail buyer for cancellation of
the debt cancellation agreement; or
(4) the total denial of a debt cancellation request
based on one of the exclusions listed in Section 354.003 [348.602],
except in the case of a partial loss of the covered [motor] vehicle.
(b) The refund or credit for the debt cancellation agreement
can be rounded to the nearest whole dollar. A refund or credit is
not required if the amount of the refund or credit calculated is
less than $5.
(c) If total loss or theft has not occurred, the retail
buyer may cancel the debt cancellation agreement not later than the
30th day after the date of the [retail installment] contract or the
issuance of the debt cancellation agreement, whichever is later, or
a later date as provided under the debt cancellation agreement. On
cancellation, the holder or any administrator of the agreement
shall refund or credit the entire debt cancellation agreement fee.
A retail buyer may not cancel the debt cancellation agreement and
subsequently receive any benefits under the agreement.
(d) A holder may in good faith rely on a computation by any
administrator of the agreement of the balance waived, unless the
holder has knowledge that the computation is not correct. If a
computation by the administrator of the balance waived is not
correct, the holder must within a reasonable time of learning that
the computation is incorrect make the necessary corrections or
cause the corrections to be made to the retail buyer's account.
This subsection does not prevent the holder from obtaining
reimbursement from the administrator or another responsible for the
debt cancellation agreement or computation.
(e) If the debt cancellation agreement terminates due to the
early termination of the contract, the holder shall, not later than
the 60th day after the date the debt cancellation agreement
terminates:
(1) refund or credit an appropriate amount of the debt
cancellation agreement fee; or
(2) cause to be refunded or credited an appropriate
amount of the debt cancellation agreement fee by providing written
instruction to the appropriate person.
(f) The holder shall ensure that a refund or credit of an
amount of a debt cancellation agreement fee made by another person
under Subsection (e)(2) is made not later than the 60th day after
the date the debt cancellation agreement terminates.
(g) The holder shall maintain records of any refund or
credit of an amount of a debt cancellation agreement fee made under
Subsection (e) and provide electronic access to those records until
the later of the fourth anniversary of the date of the contract or
the second anniversary of the date of the refund or credit.
SECTION 7. Title 5, Finance Code, is amended by adding
Chapter 397 to read as follows:
CHAPTER 397. DEBT CANCELLATION AGREEMENTS FOR CERTAIN VEHICLE
LEASES
Sec. 397.001. DEFINITIONS. In this chapter:
(1) "Covered vehicle" includes a self-propelled or
towed vehicle designed for personal use, including an automobile,
truck, motorcycle, recreational vehicle, all-terrain vehicle,
snowmobile, camper, boat, personal watercraft, and personal
watercraft trailer.
(2) "Debt cancellation agreement" means a lease term
or a contractual arrangement modifying a lease term under which a
lessor or holder agrees to cancel all or part of an obligation of
the lessee to pay the lessor or holder on the occurrence of the
total loss or theft of the covered vehicle that is the subject of
the lease but does not include an offer to pay a specified amount on
the total loss or theft of the covered vehicle.
(3) "Holder" means a person who is:
(A) a lessor; or
(B) the assignee or transferee of a lease.
(4) "Lease" means a lease for a covered vehicle.
Sec. 397.002. APPLICABILITY. This chapter does not apply
to a lease that is a retail installment transaction under Section
345.068 or 348.002.
Sec. 397.003. RELATIONSHIP TO INSURANCE. A debt
cancellation agreement to which this chapter applies is not
insurance.
Sec. 397.004. LIMITATION ON CERTAIN DEBT CANCELLATION
AGREEMENTS. (a) This chapter applies only to a debt cancellation
agreement, including a gap waiver agreement or other similarly
named agreement, that includes insurance coverage as part of the
lessee's responsibility to the holder.
(b) The amount charged for a debt cancellation agreement
made in connection with a lease may not exceed five percent of the
adjusted capitalized cost financed pursuant to the lease.
(c) The debt cancellation agreement becomes a part of or a
separate addendum to the lease and remains a term of the lease on
the assignment, sale, or transfer by the holder.
Sec. 397.005. DEBT CANCELLATION AGREEMENTS EXCLUSION
LANGUAGE. (a) In addition to the provisions required by Section
397.006, a debt cancellation agreement must fully disclose all
provisions permitting the exclusion of loss or damage including, if
applicable:
(1) an act occurring after the original maturity date
or date of the holder's acceleration of the lease;
(2) any dishonest, fraudulent, illegal, or
intentional act of any authorized driver that directly results in
the total loss of the covered vehicle;
(3) any act of gross negligence by an authorized
driver that directly results in the total loss of the covered
vehicle;
(4) conversion, embezzlement, or concealment by any
person in lawful possession of the covered vehicle;
(5) lawful confiscation by an authorized public
official;
(6) the operation, use, or maintenance of the covered
vehicle in any race or speed contest;
(7) war, whether or not declared, invasion,
insurrection, rebellion, revolution, or an act of terrorism;
(8) normal wear and tear, freezing, or mechanical or
electrical breakdown or failure;
(9) use of the covered vehicle for primarily
commercial purposes;
(10) damage that occurs after the covered vehicle has
been repossessed;
(11) damage to the covered vehicle before the purchase
of the debt cancellation agreement;
(12) unpaid insurance premiums and salvage, towing,
and storage charges relating to the covered vehicle;
(13) damage related to any personal property attached
to or within the covered vehicle;
(14) damages associated with falsification of
documents by any person not associated with the lessor or other
person canceling the lessee's obligation;
(15) any unpaid debt resulting from exclusions in the
lessee's primary physical damage coverage not included in the debt
cancellation agreement;
(16) abandonment of the covered vehicle by the lessee
only if the lessee voluntarily discards, leaves behind, or
otherwise relinquishes possession of the covered vehicle to the
extent that the relinquishment shows intent to forsake and desert
the covered vehicle so that the covered vehicle may be appropriated
by any other person;
(17) any amounts deducted from the primary insurance
carrier's settlement due to prior damages; and
(18) any loss occurring outside the United States or
outside the United States and Canada.
(b) An exclusion of loss or damage not listed in Subsection
(a) may be included in a debt cancellation agreement only if the
exclusion is disclosed in plain, easy to read language.
Sec. 397.006. REQUIRED DEBT CANCELLATION AGREEMENT
LANGUAGE. A debt cancellation agreement must state:
(1) the contact information of the lessor, the holder,
and any administrator of the agreement;
(2) the name and address of the lessee;
(3) the cost and term of the debt cancellation
agreement;
(4) the procedure the lessee must follow to obtain
benefits under the terms of the debt cancellation agreement,
including a telephone number and address where the lessee may
provide notice under the debt cancellation agreement;
(5) the period during which the lessee is required to
notify the lessor, the holder, or any administrator of the
agreement of any potential loss under the debt cancellation
agreement for total loss or theft of the covered vehicle;
(6) that in order to make a claim, the lessee must
provide or complete some or all of the following documents and
provide those documents to the lessor, the holder, or any
administrator of the agreement:
(A) a debt cancellation request form;
(B) proof of loss and settlement payment from the
lessee's primary comprehensive, collision, or uninsured or
underinsured motorist policy or other parties' liability insurance
policy for the settlement of the insured total loss of the covered
vehicle;
(C) verification of the lessee's primary
insurance deductible;
(D) a copy of any police report filed in
connection with the total loss or theft of the covered vehicle; and
(E) a copy of the damage estimate;
(7) that documentation not described by Subdivision
(6) or required by the lessor, the holder, or any administrator of
the agreement is not required to substantiate the loss or determine
the amount of debt to be canceled;
(8) that notwithstanding the collection of the
documents under Subdivision (6), on reasonable advance notice the
lessor, the holder, or any administrator of the agreement may
inspect the lessee's covered vehicle;
(9) that the lessor or holder will cancel all or part
of the lessee's obligation as provided in the debt cancellation
agreement on the occurrence of total loss or theft of the covered
vehicle;
(10) the method to be used to calculate refunds;
(11) the method for calculating the amount to be
canceled under the debt cancellation agreement on the occurrence of
total loss or theft of a covered vehicle;
(12) that purchase of a debt cancellation agreement is
not required for the lessee to obtain a lease and will not be a
factor in the lease approval process;
(13) that in order to cancel the debt cancellation
agreement and receive a refund, the lessee must provide a written
request to cancel to the lessor, the holder, or any administrator of
the agreement;
(14) that if total loss or theft of the covered vehicle
has not occurred, the lessee has 30 days from the date of the lease
or the issuance of the debt cancellation agreement, whichever is
later, or a longer period as provided under the debt cancellation
agreement, to cancel the debt cancellation agreement and receive a
full refund; and
(15) that the lessor will cancel certain amounts under
the debt cancellation agreement for total loss or theft of a covered
vehicle, in the following or substantially similar language: "YOU
WILL CANCEL CERTAIN AMOUNTS I OWE UNDER THIS LEASE IN THE CASE OF A
TOTAL LOSS OR THEFT OF THE COVERED VEHICLE AS STATED IN THE DEBT
CANCELLATION AGREEMENT."
Sec. 397.007. ADDITIONAL REQUIREMENTS FOR DEBT
CANCELLATION AGREEMENTS. (a) If a lessee purchases a debt
cancellation agreement, the lessor must provide to the lessee a
true and correct copy of the agreement not later than the 10th day
after the date of the lease.
(b) A holder must comply with the terms of a debt
cancellation agreement not later than the 60th day after the date of
receipt of all necessary information required by the holder or
administrator of the agreement to process the request.
(c) A debt cancellation agreement may not knowingly be
offered by a lessor if:
(1) the lease is already protected by gap insurance;
or
(2) the purchase of the debt cancellation agreement is
required for the lessee to obtain the lease.
(d) This section does not apply to a debt cancellation
agreement offered in connection with the lease of a commercial
vehicle.
(e) The sale of a debt cancellation agreement must be for a
single payment.
(f) A holder that offers a debt cancellation agreement must
report the sale of and forward money received on all such agreements
to any designated party as prescribed in any applicable
administrative services agreement, contractual liability policy,
other insurance policy, or other specified program documents.
(g) Money received or held by a holder or any administrator
of a debt cancellation agreement and belonging to an insurance
company, holder, or administrator under the terms of a written
agreement must be held by the holder or administrator in a fiduciary
capacity.
(h) A lessor that negotiates a debt cancellation agreement
and subsequently assigns the lease shall maintain documents
relating to the agreement that come into the lessor's possession.
Sec. 397.008. REFUND FOR DEBT CANCELLATION AGREEMENTS. (a)
A refund or credit of the debt cancellation agreement fee must be
based on the earliest date of:
(1) the prepayment of the lease in full before the
original maturity date;
(2) a demand by the holder for payment in full of the
unpaid balance or acceleration;
(3) a request by the lessee for cancellation of the
debt cancellation agreement; or
(4) the total denial of a debt cancellation request
based on one of the exclusions listed in Section 397.005, except in
the case of a partial loss of the covered vehicle.
(b) The refund or credit for the debt cancellation agreement
can be rounded to the nearest whole dollar. A refund or credit is
not required if the amount of the refund or credit calculated is
less than $5.
(c) If total loss or theft has not occurred, the lessee may
cancel the debt cancellation agreement not later than the 30th day
after the date of the lease or the issuance of the debt cancellation
agreement, whichever is later, or a later date as provided under the
debt cancellation agreement. On cancellation, the holder or any
administrator of the agreement shall refund or credit the entire
debt cancellation agreement fee. A lessee may not cancel the debt
cancellation agreement and subsequently receive any benefits under
the agreement.
(d) A holder may in good faith rely on a computation by any
administrator of the agreement of the balance waived, unless the
holder has knowledge that the computation is not correct. If a
computation by the administrator of the balance waived is not
correct, the holder must within a reasonable time of learning that
the computation is incorrect make the necessary corrections or
cause the corrections to be made to the lessee's account. This
subsection does not prevent the holder from obtaining reimbursement
from the administrator or another responsible for the debt
cancellation agreement or computation.
(e) If the debt cancellation agreement terminates due to the
early termination of the lease, the holder shall, not later than the
60th day after the date the debt cancellation agreement terminates:
(1) refund or credit an appropriate amount of the debt
cancellation agreement fee; or
(2) cause to be refunded or credited an appropriate
amount of the debt cancellation agreement fee by providing written
instruction to the appropriate person.
(f) The holder shall ensure that a refund or credit of an
amount of a debt cancellation agreement fee made by another person
under Subsection (e)(2) is made not later than the 60th day after
the date the debt cancellation agreement terminates.
(g) The holder shall maintain records of any refund or
credit of an amount of a debt cancellation agreement fee made under
Subsection (e) and provide electronic access to those records until
the later of the fourth anniversary of the date of the lease or the
second anniversary of the date of the refund or credit.
Sec. 397.009. ENFORCEMENT. (a) If the attorney general has
reason to believe that a person is engaging in, has engaged in, or
is about to engage in any method, act, or practice that is a
violation of this chapter, the attorney general may bring an action
in the name of the state against the person to restrain the person
by temporary restraining order, temporary injunction, or permanent
injunction from engaging in the method, act, or practice.
(b) An action brought under Subsection (a) may be commenced
in the district court of the county in which the person against whom
the action is brought resides, has the person's principal place of
business, or has done business, in the district court of the county
in which any or all parts of the method, act, or practice giving
rise to the action occurred, or, on the consent of the parties, in a
district court of Travis County. The court may issue a temporary
restraining order, temporary injunction, or permanent injunction
to restrain or prevent a violation of this chapter and injunctive
relief must be issued without bond.
(c) In addition to the request for a temporary restraining
order, temporary injunction, or permanent injunction, the attorney
general may request, and the trier of fact may award, a civil
penalty to be paid to the state in an amount of not more than $20,000
per violation.
(d) The attorney general may recover reasonable expenses
incurred in obtaining injunctive relief or a civil penalty under
this section, including reasonable investigative costs, court
costs, and attorney's fees.
SECTION 8. This Act takes effect September 1, 2017.