86R10809 SMH-F
By: Wilson H.J.R. No. 111
A JOINT RESOLUTION
proposing a constitutional amendment providing that a residence
homestead is not subject to seizure or sale for delinquent ad
valorem taxes.
BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 13(a), (c), and (d), Article VIII,
Texas Constitution, are amended to read as follows:
(a) Except as provided by Section 15(b) of this article,
provision [Provision] shall be made by the Legislature for the sale
of a sufficient portion of all lands and other property for the
taxes due thereon that have not been paid.
(c) The former owner of [a residence homestead,] land
designated for agricultural use[,] or a mineral interest sold for
unpaid taxes shall within two years from date of the filing for
record of the Purchaser's Deed have the right to redeem the property
on the following basis:
(1) Within the first year of the redemption period,
upon the payment of the amount of money paid for the property,
including the Tax Deed Recording Fee and all taxes, penalties,
interest, and costs paid plus an amount not exceeding 25 percent of
the aggregate total; and
(2) Within the last year of the redemption period,
upon the payment of the amount of money paid for the property,
including the Tax Deed Recording Fee and all taxes, penalties,
interest, and costs paid plus an amount not exceeding 50 percent of
the aggregate total.
(d) If the [residence homestead or] land designated for
agricultural use is sold pursuant to a suit to enforce the
collection of the unpaid taxes, the Legislature may limit the
application of Subsection (c) of this section to [property used as a
residence homestead when the suit was filed and to] land designated
for agricultural use when the suit was filed.
SECTION 2. Section 15, Article VIII, Texas Constitution, is
amended to read as follows:
Sec. 15. (a) Except as provided by Subsection (b) of this
section, the [The] annual assessment made upon landed property
shall be a special lien thereon; and all property, both real and
personal, belonging to any delinquent taxpayer shall be liable to
seizure and sale for the payment of all the taxes and penalties due
by such delinquent; and such property may be sold for the payment of
the taxes and penalties due by such delinquent, under such
regulations as the Legislature may provide.
(b) A residence homestead is not subject to seizure or sale
for the payment of delinquent taxes or penalties. The Legislature
by general law may define residence homestead for purposes of this
subsection.
SECTION 3. Sections 50(a), (e), (f), (f-1), (g), (h), (i),
(j), (k), (q), (r), (t), and (u), Article XVI, Texas Constitution,
are amended to read as follows:
(a) The homestead of a family, or of a single adult person,
shall be, and is hereby protected from forced sale, for the payment
of all debts except for:
(1) the purchase money thereof, or a part of such
purchase money;
(2) [the taxes due thereon;
[(3)] an owelty of partition imposed against the
entirety of the property by a court order or by a written agreement
of the parties to the partition, including a debt of one spouse in
favor of the other spouse resulting from a division or an award of a
family homestead in a divorce proceeding;
(3) [(4)] the refinance of a lien against a homestead,
including a federal tax lien resulting from the tax debt of both
spouses, if the homestead is a family homestead, or from the tax
debt of the owner;
(4) [(5)] work and material used in constructing new
improvements thereon, if contracted for in writing, or work and
material used to repair or renovate existing improvements thereon
if:
(A) the work and material are contracted for in
writing, with the consent of both spouses, in the case of a family
homestead, given in the same manner as is required in making a sale
and conveyance of the homestead;
(B) the contract for the work and material is not
executed by the owner or the owner's spouse before the fifth day
after the owner makes written application for any extension of
credit for the work and material, unless the work and material are
necessary to complete immediate repairs to conditions on the
homestead property that materially affect the health or safety of
the owner or person residing in the homestead and the owner of the
homestead acknowledges such in writing;
(C) the contract for the work and material
expressly provides that the owner may rescind the contract without
penalty or charge within three days after the execution of the
contract by all parties, unless the work and material are necessary
to complete immediate repairs to conditions on the homestead
property that materially affect the health or safety of the owner or
person residing in the homestead and the owner of the homestead
acknowledges such in writing; and
(D) the contract for the work and material is
executed by the owner and the owner's spouse only at the office of a
third-party lender making an extension of credit for the work and
material, an attorney at law, or a title company;
(5) [(6)] an extension of credit that:
(A) is secured by a voluntary lien on the
homestead created under a written agreement with the consent of
each owner and each owner's spouse;
(B) is of a principal amount that when added to
the aggregate total of the outstanding principal balances of all
other indebtedness secured by valid encumbrances of record against
the homestead does not exceed 80 percent of the fair market value of
the homestead on the date the extension of credit is made;
(C) is without recourse for personal liability
against each owner and the spouse of each owner, unless the owner or
spouse obtained the extension of credit by actual fraud;
(D) is secured by a lien that may be foreclosed
upon only by a court order;
(E) does not require the owner or the owner's
spouse to pay, in addition to any interest or any bona fide discount
points used to buy down the interest rate, any fees to any person
that are necessary to originate, evaluate, maintain, record,
insure, or service the extension of credit that exceed, in the
aggregate, two percent of the original principal amount of the
extension of credit, excluding fees for:
(i) an appraisal performed by a third party
appraiser;
(ii) a property survey performed by a state
registered or licensed surveyor;
(iii) a state base premium for a mortgagee
policy of title insurance with endorsements established in
accordance with state law; or
(iv) a title examination report if its cost
is less than the state base premium for a mortgagee policy of title
insurance without endorsements established in accordance with
state law;
(F) is not a form of open-end account that may be
debited from time to time or under which credit may be extended from
time to time unless the open-end account is a home equity line of
credit;
(G) is payable in advance without penalty or
other charge;
(H) is not secured by any additional real or
personal property other than the homestead;
(I) (repealed);
(J) may not be accelerated because of a decrease
in the market value of the homestead or because of the owner's
default under other indebtedness not secured by a prior valid
encumbrance against the homestead;
(K) is the only debt secured by the homestead at
the time the extension of credit is made unless the other debt was
made for a purpose described by Subsections (a)(1)-(a)(4)
[(a)(1)-(a)(5)] or Subsection (a)(7) [(a)(8)] of this section;
(L) is scheduled to be repaid:
(i) in substantially equal successive
periodic installments, not more often than every 14 days and not
less often than monthly, beginning no later than two months from the
date the extension of credit is made, each of which equals or
exceeds the amount of accrued interest as of the date of the
scheduled installment; or
(ii) if the extension of credit is a home
equity line of credit, in periodic payments described under
Subsection (t)(8) of this section;
(M) is closed not before:
(i) the 12th day after the later of the date
that the owner of the homestead submits a loan application to the
lender for the extension of credit or the date that the lender
provides the owner a copy of the notice prescribed by Subsection (g)
of this section;
(ii) one business day after the date that
the owner of the homestead receives a copy of the loan application
if not previously provided and a final itemized disclosure of the
actual fees, points, interest, costs, and charges that will be
charged at closing. If a bona fide emergency or another good cause
exists and the lender obtains the written consent of the owner, the
lender may provide the documentation to the owner or the lender may
modify previously provided documentation on the date of closing;
and
(iii) the first anniversary of the closing
date of any other extension of credit described by Subsection
(a)(5) [(a)(6)] of this section secured by the same homestead
property, except a refinance described by Paragraph (Q)(x)(f) of
this subdivision, unless the owner on oath requests an earlier
closing due to a state of emergency that:
(a) has been declared by the president
of the United States or the governor as provided by law; and
(b) applies to the area where the
homestead is located;
(N) is closed only at the office of the lender, an
attorney at law, or a title company;
(O) permits a lender to contract for and receive
any fixed or variable rate of interest authorized under statute;
(P) is made by one of the following that has not
been found by a federal regulatory agency to have engaged in the
practice of refusing to make loans because the applicants for the
loans reside or the property proposed to secure the loans is located
in a certain area:
(i) a bank, savings and loan association,
savings bank, or credit union doing business under the laws of this
state or the United States, including a subsidiary of a bank,
savings and loan association, savings bank, or credit union
described by this subparagraph;
(ii) a federally chartered lending
instrumentality or a person approved as a mortgagee by the United
States government to make federally insured loans;
(iii) a person licensed to make regulated
loans, as provided by statute of this state;
(iv) a person who sold the homestead
property to the current owner and who provided all or part of the
financing for the purchase;
(v) a person who is related to the homestead
property owner within the second degree of affinity or
consanguinity; or
(vi) a person regulated by this state as a
mortgage banker or mortgage company; and
(Q) is made on the condition that:
(i) the owner of the homestead is not
required to apply the proceeds of the extension of credit to repay
another debt except debt secured by the homestead or debt to another
lender;
(ii) the owner of the homestead not assign
wages as security for the extension of credit;
(iii) the owner of the homestead not sign
any instrument in which blanks relating to substantive terms of
agreement are left to be filled in;
(iv) the owner of the homestead not sign a
confession of judgment or power of attorney to the lender or to a
third person to confess judgment or to appear for the owner in a
judicial proceeding;
(v) at the time the extension of credit is
made, the owner of the homestead shall receive a copy of the final
loan application and all executed documents signed by the owner at
closing related to the extension of credit;
(vi) the security instruments securing the
extension of credit contain a disclosure that the extension of
credit is the type of credit defined by Subsection (a)(5) [(a)(6)]
of this section;
(vii) within a reasonable time after
termination and full payment of the extension of credit, the lender
cancel and return the promissory note to the owner of the homestead
and give the owner, in recordable form, a release of the lien
securing the extension of credit or a copy of an endorsement and
assignment of the lien to a lender that is refinancing the extension
of credit;
(viii) the owner of the homestead and any
spouse of the owner may, within three days after the extension of
credit is made, rescind the extension of credit without penalty or
charge;
(ix) the owner of the homestead and the
lender sign a written acknowledgment as to the fair market value of
the homestead property on the date the extension of credit is made;
(x) except as provided by Subparagraph (xi)
of this paragraph, the lender or any holder of the note for the
extension of credit shall forfeit all principal and interest of the
extension of credit if the lender or holder fails to comply with the
lender's or holder's obligations under the extension of credit and
fails to correct the failure to comply not later than the 60th day
after the date the lender or holder is notified by the borrower of
the lender's failure to comply by:
(a) paying to the owner an amount
equal to any overcharge paid by the owner under or related to the
extension of credit if the owner has paid an amount that exceeds an
amount stated in the applicable Paragraph (E), (G), or (O) of this
subdivision;
(b) sending the owner a written
acknowledgement that the lien is valid only in the amount that the
extension of credit does not exceed the percentage described by
Paragraph (B) of this subdivision, if applicable, or is not secured
by property described under Paragraph (H) of this subdivision, if
applicable;
(c) sending the owner a written notice
modifying any other amount, percentage, term, or other provision
prohibited by this section to a permitted amount, percentage, term,
or other provision and adjusting the account of the borrower to
ensure that the borrower is not required to pay more than an amount
permitted by this section and is not subject to any other term or
provision prohibited by this section;
(d) delivering the required documents
to the borrower if the lender fails to comply with Subparagraph (v)
of this paragraph or obtaining the appropriate signatures if the
lender fails to comply with Subparagraph (ix) of this paragraph;
(e) sending the owner a written
acknowledgement, if the failure to comply is prohibited by
Paragraph (K) of this subdivision, that the accrual of interest and
all of the owner's obligations under the extension of credit are
abated while any prior lien prohibited under Paragraph (K) remains
secured by the homestead; or
(f) if the failure to comply cannot be
cured under Subparagraphs (x)(a)-(e) of this paragraph, curing the
failure to comply by a refund or credit to the owner of $1,000 and
offering the owner the right to refinance the extension of credit
with the lender or holder for the remaining term of the loan at no
cost to the owner on the same terms, including interest, as the
original extension of credit with any modifications necessary to
comply with this section or on terms on which the owner and the
lender or holder otherwise agree that comply with this section; and
(xi) the lender or any holder of the note
for the extension of credit shall forfeit all principal and
interest of the extension of credit if the extension of credit is
made by a person other than a person described under Paragraph (P)
of this subdivision or if the lien was not created under a written
agreement with the consent of each owner and each owner's spouse,
unless each owner and each owner's spouse who did not initially
consent subsequently consents;
(6) [(7)] a reverse mortgage; or
(7) [(8)] the conversion and refinance of a personal
property lien secured by a manufactured home to a lien on real
property, including the refinance of the purchase price of the
manufactured home, the cost of installing the manufactured home on
the real property, and the refinance of the purchase price of the
real property.
(e) A refinance of debt secured by a homestead and described
by any subsection under Subsections (a)(1)-(a)(4) of this section
[(a)(1)-(a)(5)] that includes the advance of additional funds may
not be secured by a valid lien against the homestead unless:
(1) the refinance of the debt is an extension of credit
described by Subsection (a)(5) [(a)(6)] of this section; or
(2) the advance of all the additional funds is for
reasonable costs necessary to refinance such debt or for a purpose
described by Subsection (a)(2) or (a)(4) [, (a)(3), or (a)(5)] of
this section.
(f) A refinance of debt secured by the homestead, any
portion of which is an extension of credit described by Subsection
(a)(5) [(a)(6)] of this section, may not be secured by a valid lien
against the homestead unless either:
(1) the refinance of the debt is an extension of credit
described by Subsection (a)(5) or (a)(6) [or (a)(7)] of this
section; or
(2) all of the following conditions are met:
(A) the refinance is not closed before the first
anniversary of the date the extension of credit was closed;
(B) the refinanced extension of credit does not
include the advance of any additional funds other than:
(i) funds advanced to refinance a debt
described by Subsections (a)(1) through (a)(6) [(a)(7)] of this
section; or
(ii) actual costs and reserves required by
the lender to refinance the debt;
(C) the refinance of the extension of credit is
of a principal amount that when added to the aggregate total of the
outstanding principal balances of all other indebtedness secured by
valid encumbrances of record against the homestead does not exceed
80 percent of the fair market value of the homestead on the date the
refinance of the extension of credit is made; and
(D) the lender provides the owner the following
written notice on a separate document not later than the third
business day after the date the owner submits the loan application
to the lender and at least 12 days before the date the refinance of
the extension of credit is closed:
"YOUR EXISTING LOAN THAT YOU DESIRE TO REFINANCE IS A HOME
EQUITY LOAN. YOU MAY HAVE THE OPTION TO REFINANCE YOUR HOME EQUITY
LOAN AS EITHER A HOME EQUITY LOAN OR AS A NON-HOME EQUITY LOAN, IF
OFFERED BY YOUR LENDER.
"HOME EQUITY LOANS HAVE IMPORTANT CONSUMER PROTECTIONS. A
LENDER MAY ONLY FORECLOSE A HOME EQUITY LOAN BASED ON A COURT ORDER.
A HOME EQUITY LOAN MUST BE WITHOUT RECOURSE FOR PERSONAL LIABILITY
AGAINST YOU AND YOUR SPOUSE.
"IF YOU HAVE APPLIED TO REFINANCE YOUR EXISTING HOME EQUITY
LOAN AS A NON-HOME EQUITY LOAN, YOU WILL LOSE CERTAIN CONSUMER
PROTECTIONS. A NON-HOME EQUITY REFINANCED LOAN:
"(1) WILL PERMIT THE LENDER TO FORECLOSE WITHOUT A
COURT ORDER;
"(2) WILL BE WITH RECOURSE FOR PERSONAL LIABILITY
AGAINST YOU AND YOUR SPOUSE; AND
"(3) MAY ALSO CONTAIN OTHER TERMS OR CONDITIONS THAT
MAY NOT BE PERMITTED IN A TRADITIONAL HOME EQUITY LOAN.
"BEFORE YOU REFINANCE YOUR EXISTING HOME EQUITY LOAN TO MAKE
IT A NON-HOME EQUITY LOAN, YOU SHOULD MAKE SURE YOU UNDERSTAND THAT
YOU ARE WAIVING IMPORTANT PROTECTIONS THAT HOME EQUITY LOANS
PROVIDE UNDER THE LAW AND SHOULD CONSIDER CONSULTING WITH AN
ATTORNEY OF YOUR CHOOSING REGARDING THESE PROTECTIONS.
"YOU MAY WISH TO ASK YOUR LENDER TO REFINANCE YOUR LOAN AS A
HOME EQUITY LOAN. HOWEVER, A HOME EQUITY LOAN MAY HAVE A HIGHER
INTEREST RATE AND CLOSING COSTS THAN A NON-HOME EQUITY LOAN."
(f-1) A lien securing a refinance of debt under Subsection
(f)(2) of this section is deemed to be a lien described by
Subsection (a)(3) [(a)(4)] of this section. An affidavit executed
by the owner or the owner's spouse acknowledging that the
requirements of Subsection (f)(2) of this section have been met
conclusively establishes that the requirements of Subsection
(a)(3) [(a)(4)] of this section have been met.
(g) An extension of credit described by Subsection (a)(5)
[(a)(6)] of this section may be secured by a valid lien against
homestead property if the extension of credit is not closed before
the 12th day after the lender provides the owner with the following
written notice on a separate instrument:
"NOTICE CONCERNING EXTENSIONS OF CREDIT DEFINED BY SECTION
50(a)(5) [50(a)(6)], ARTICLE XVI, TEXAS CONSTITUTION:
"SECTION 50(a)(5) [50(a)(6)], ARTICLE XVI, OF THE TEXAS
CONSTITUTION ALLOWS CERTAIN LOANS TO BE SECURED AGAINST THE EQUITY
IN YOUR HOME. SUCH LOANS ARE COMMONLY KNOWN AS EQUITY LOANS. IF YOU
DO NOT REPAY THE LOAN OR IF YOU FAIL TO MEET THE TERMS OF THE LOAN,
THE LENDER MAY FORECLOSE AND SELL YOUR HOME. THE CONSTITUTION
PROVIDES THAT:
"(A) THE LOAN MUST BE VOLUNTARILY CREATED WITH THE CONSENT OF
EACH OWNER OF YOUR HOME AND EACH OWNER'S SPOUSE;
"(B) THE PRINCIPAL LOAN AMOUNT AT THE TIME THE LOAN IS MADE
MUST NOT EXCEED AN AMOUNT THAT, WHEN ADDED TO THE PRINCIPAL BALANCES
OF ALL OTHER LIENS AGAINST YOUR HOME, IS MORE THAN 80 PERCENT OF THE
FAIR MARKET VALUE OF YOUR HOME;
"(C) THE LOAN MUST BE WITHOUT RECOURSE FOR PERSONAL LIABILITY
AGAINST YOU AND YOUR SPOUSE UNLESS YOU OR YOUR SPOUSE OBTAINED THIS
EXTENSION OF CREDIT BY ACTUAL FRAUD;
"(D) THE LIEN SECURING THE LOAN MAY BE FORECLOSED UPON ONLY
WITH A COURT ORDER;
"(E) FEES AND CHARGES TO MAKE THE LOAN MAY NOT EXCEED 2
PERCENT OF THE LOAN AMOUNT, EXCEPT FOR A FEE OR CHARGE FOR AN
APPRAISAL PERFORMED BY A THIRD PARTY APPRAISER, A PROPERTY SURVEY
PERFORMED BY A STATE REGISTERED OR LICENSED SURVEYOR, A STATE BASE
PREMIUM FOR A MORTGAGEE POLICY OF TITLE INSURANCE WITH
ENDORSEMENTS, OR A TITLE EXAMINATION REPORT;
"(F) THE LOAN MAY NOT BE AN OPEN-END ACCOUNT THAT MAY BE
DEBITED FROM TIME TO TIME OR UNDER WHICH CREDIT MAY BE EXTENDED FROM
TIME TO TIME UNLESS IT IS A HOME EQUITY LINE OF CREDIT;
"(G) YOU MAY PREPAY THE LOAN WITHOUT PENALTY OR CHARGE;
"(H) NO ADDITIONAL COLLATERAL MAY BE SECURITY FOR THE LOAN;
"(I) (repealed);
"(J) YOU ARE NOT REQUIRED TO REPAY THE LOAN EARLIER THAN
AGREED SOLELY BECAUSE THE FAIR MARKET VALUE OF YOUR HOME DECREASES
OR BECAUSE YOU DEFAULT ON ANOTHER LOAN THAT IS NOT SECURED BY YOUR
HOME;
"(K) ONLY ONE LOAN DESCRIBED BY SECTION 50(a)(5) [50(a)(6)],
ARTICLE XVI, OF THE TEXAS CONSTITUTION MAY BE SECURED WITH YOUR HOME
AT ANY GIVEN TIME;
"(L) THE LOAN MUST BE SCHEDULED TO BE REPAID IN PAYMENTS THAT
EQUAL OR EXCEED THE AMOUNT OF ACCRUED INTEREST FOR EACH PAYMENT
PERIOD;
"(M) THE LOAN MAY NOT CLOSE BEFORE 12 DAYS AFTER YOU SUBMIT A
LOAN APPLICATION TO THE LENDER OR BEFORE 12 DAYS AFTER YOU RECEIVE
THIS NOTICE, WHICHEVER DATE IS LATER; AND MAY NOT WITHOUT YOUR
CONSENT CLOSE BEFORE ONE BUSINESS DAY AFTER THE DATE ON WHICH YOU
RECEIVE A COPY OF YOUR LOAN APPLICATION IF NOT PREVIOUSLY PROVIDED
AND A FINAL ITEMIZED DISCLOSURE OF THE ACTUAL FEES, POINTS,
INTEREST, COSTS, AND CHARGES THAT WILL BE CHARGED AT CLOSING; AND IF
YOUR HOME WAS SECURITY FOR THE SAME TYPE OF LOAN WITHIN THE PAST
YEAR, A NEW LOAN SECURED BY THE SAME PROPERTY MAY NOT CLOSE BEFORE
ONE YEAR HAS PASSED FROM THE CLOSING DATE OF THE OTHER LOAN, UNLESS
ON OATH YOU REQUEST AN EARLIER CLOSING DUE TO A DECLARED STATE OF
EMERGENCY;
"(N) THE LOAN MAY CLOSE ONLY AT THE OFFICE OF THE LENDER,
TITLE COMPANY, OR AN ATTORNEY AT LAW;
"(O) THE LENDER MAY CHARGE ANY FIXED OR VARIABLE RATE OF
INTEREST AUTHORIZED BY STATUTE;
"(P) ONLY A LAWFULLY AUTHORIZED LENDER MAY MAKE LOANS
DESCRIBED BY SECTION 50(a)(5) [50(a)(6)], ARTICLE XVI, OF THE TEXAS
CONSTITUTION;
"(Q) LOANS DESCRIBED BY SECTION 50(a)(5) [50(a)(6)], ARTICLE
XVI, OF THE TEXAS CONSTITUTION MUST:
"(1) NOT REQUIRE YOU TO APPLY THE PROCEEDS TO ANOTHER DEBT
EXCEPT A DEBT THAT IS SECURED BY YOUR HOME OR OWED TO ANOTHER
LENDER;
"(2) NOT REQUIRE THAT YOU ASSIGN WAGES AS SECURITY;
"(3) NOT REQUIRE THAT YOU EXECUTE INSTRUMENTS WHICH HAVE
BLANKS FOR SUBSTANTIVE TERMS OF AGREEMENT LEFT TO BE FILLED IN;
"(4) NOT REQUIRE THAT YOU SIGN A CONFESSION OF JUDGMENT OR
POWER OF ATTORNEY TO ANOTHER PERSON TO CONFESS JUDGMENT OR APPEAR IN
A LEGAL PROCEEDING ON YOUR BEHALF;
"(5) PROVIDE THAT YOU RECEIVE A COPY OF YOUR FINAL LOAN
APPLICATION AND ALL EXECUTED DOCUMENTS YOU SIGN AT CLOSING;
"(6) PROVIDE THAT THE SECURITY INSTRUMENTS CONTAIN A
DISCLOSURE THAT THIS LOAN IS A LOAN DEFINED BY SECTION 50(a)(5)
[50(a)(6)], ARTICLE XVI, OF THE TEXAS CONSTITUTION;
"(7) PROVIDE THAT WHEN THE LOAN IS PAID IN FULL, THE LENDER
WILL SIGN AND GIVE YOU A RELEASE OF LIEN OR AN ASSIGNMENT OF THE
LIEN, WHICHEVER IS APPROPRIATE;
"(8) PROVIDE THAT YOU MAY, WITHIN 3 DAYS AFTER CLOSING,
RESCIND THE LOAN WITHOUT PENALTY OR CHARGE;
"(9) PROVIDE THAT YOU AND THE LENDER ACKNOWLEDGE THE FAIR
MARKET VALUE OF YOUR HOME ON THE DATE THE LOAN CLOSES; AND
"(10) PROVIDE THAT THE LENDER WILL FORFEIT ALL PRINCIPAL AND
INTEREST IF THE LENDER FAILS TO COMPLY WITH THE LENDER'S
OBLIGATIONS UNLESS THE LENDER CURES THE FAILURE TO COMPLY AS
PROVIDED BY SECTION 50(a)(5)(Q)(x) [50(a)(6)(Q)(x)], ARTICLE XVI,
OF THE TEXAS CONSTITUTION; AND
"(R) IF THE LOAN IS A HOME EQUITY LINE OF CREDIT:
"(1) YOU MAY REQUEST ADVANCES, REPAY MONEY, AND REBORROW
MONEY UNDER THE LINE OF CREDIT;
"(2) EACH ADVANCE UNDER THE LINE OF CREDIT MUST BE IN AN
AMOUNT OF AT LEAST $4,000;
"(3) YOU MAY NOT USE A CREDIT CARD, DEBIT CARD, OR SIMILAR
DEVICE, OR PREPRINTED CHECK THAT YOU DID NOT SOLICIT, TO OBTAIN
ADVANCES UNDER THE LINE OF CREDIT;
"(4) ANY FEES THE LENDER CHARGES MAY BE CHARGED AND COLLECTED
ONLY AT THE TIME THE LINE OF CREDIT IS ESTABLISHED AND THE LENDER
MAY NOT CHARGE A FEE IN CONNECTION WITH ANY ADVANCE;
"(5) THE MAXIMUM PRINCIPAL AMOUNT THAT MAY BE EXTENDED, WHEN
ADDED TO ALL OTHER DEBTS SECURED BY YOUR HOME, MAY NOT EXCEED 80
PERCENT OF THE FAIR MARKET VALUE OF YOUR HOME ON THE DATE THE LINE OF
CREDIT IS ESTABLISHED;
"(6) IF THE PRINCIPAL BALANCE UNDER THE LINE OF CREDIT AT ANY
TIME EXCEEDS 80 PERCENT OF THE FAIR MARKET VALUE OF YOUR HOME, AS
DETERMINED ON THE DATE THE LINE OF CREDIT IS ESTABLISHED, YOU MAY
NOT CONTINUE TO REQUEST ADVANCES UNDER THE LINE OF CREDIT UNTIL THE
BALANCE IS LESS THAN 80 PERCENT OF THE FAIR MARKET VALUE; AND
"(7) THE LENDER MAY NOT UNILATERALLY AMEND THE TERMS OF THE
LINE OF CREDIT.
"THIS NOTICE IS ONLY A SUMMARY OF YOUR RIGHTS UNDER THE TEXAS
CONSTITUTION. YOUR RIGHTS ARE GOVERNED BY SECTION 50, ARTICLE XVI,
OF THE TEXAS CONSTITUTION, AND NOT BY THIS NOTICE."
If the discussions with the borrower are conducted primarily
in a language other than English, the lender shall, before closing,
provide an additional copy of the notice translated into the
written language in which the discussions were conducted.
(h) A lender or assignee for value may conclusively rely on
the written acknowledgment as to the fair market value of the
homestead property made in accordance with Subsection
(a)(5)(Q)(ix) [(a)(6)(Q)(ix)] of this section if:
(1) the value acknowledged to is the value estimate in
an appraisal or evaluation prepared in accordance with a state or
federal requirement applicable to an extension of credit under
Subsection (a)(5) of this section [(a)(6)]; and
(2) the lender or assignee does not have actual
knowledge at the time of the payment of value or advance of funds by
the lender or assignee that the fair market value stated in the
written acknowledgment was incorrect.
(i) This subsection shall not affect or impair any right of
the borrower to recover damages from the lender or assignee under
applicable law for wrongful foreclosure. A purchaser for value
without actual knowledge may conclusively presume that a lien
securing an extension of credit described by Subsection (a)(5)
[(a)(6)] of this section was a valid lien securing the extension of
credit with homestead property if:
(1) the security instruments securing the extension of
credit contain a disclosure that the extension of credit secured by
the lien was the type of credit defined by Subsection (a)(5) of this
section [Section 50(a)(6), Article XVI, Texas Constitution];
(2) the purchaser acquires the title to the property
pursuant to or after the foreclosure of the voluntary lien; and
(3) the purchaser is not the lender or assignee under
the extension of credit.
(j) Subsection (a)(5) [(a)(6)] and Subsections (e)-(i) of
this section are not severable, and none of those provisions would
have been enacted without the others. If any of those provisions
are held to be preempted by the laws of the United States, all of
those provisions are invalid. This subsection shall not apply to
any lien or extension of credit made after January 1, 1998, and
before the date any provision under Subsection (a)(5) [(a)(6)] or
Subsections (e)-(i) of this section is held to be preempted.
(k) "Reverse mortgage" means an extension of credit:
(1) that is secured by a voluntary lien on homestead
property created by a written agreement with the consent of each
owner and each owner's spouse;
(2) that is made to a person who is or whose spouse is
62 years or older;
(3) that is made without recourse for personal
liability against each owner and the spouse of each owner;
(4) under which advances are provided to a borrower:
(A) based on the equity in a borrower's
homestead; or
(B) for the purchase of homestead property that
the borrower will occupy as a principal residence;
(5) that does not permit the lender to reduce the
amount or number of advances because of an adjustment in the
interest rate if periodic advances are to be made;
(6) that requires no payment of principal or interest
until:
(A) all borrowers have died;
(B) the homestead property securing the loan is
sold or otherwise transferred;
(C) all borrowers cease occupying the homestead
property for a period of longer than 12 consecutive months without
prior written approval from the lender;
(C-1) if the extension of credit is used for the
purchase of homestead property, the borrower fails to timely occupy
the homestead property as the borrower's principal residence within
a specified period after the date the extension of credit is made
that is stipulated in the written agreement creating the lien on the
property; or
(D) the borrower:
(i) defaults on an obligation specified in
the loan documents to repair and maintain, pay taxes and
assessments on, or insure the homestead property;
(ii) commits actual fraud in connection
with the loan; or
(iii) fails to maintain the priority of the
lender's lien on the homestead property, after the lender gives
notice to the borrower, by promptly discharging any lien that has
priority or may obtain priority over the lender's lien within 10
days after the date the borrower receives the notice, unless the
borrower:
(a) agrees in writing to the payment
of the obligation secured by the lien in a manner acceptable to the
lender;
(b) contests in good faith the lien
by, or defends against enforcement of the lien in, legal
proceedings so as to prevent the enforcement of the lien or
forfeiture of any part of the homestead property; or
(c) secures from the holder of the
lien an agreement satisfactory to the lender subordinating the lien
to all amounts secured by the lender's lien on the homestead
property;
(7) that provides that if the lender fails to make loan
advances as required in the loan documents and if the lender fails
to cure the default as required in the loan documents after notice
from the borrower, the lender forfeits all principal and interest
of the reverse mortgage, provided, however, that this subdivision
does not apply when a governmental agency or instrumentality takes
an assignment of the loan in order to cure the default;
(8) that is not made unless the prospective borrower
and the spouse of the prospective borrower attest in writing that
the prospective borrower and the prospective borrower's spouse
received counseling regarding the advisability and availability of
reverse mortgages and other financial alternatives that was
completed not earlier than the 180th day nor later than the 5th day
before the date the extension of credit is closed;
(9) that is not closed before the 12th day after the
date the lender provides to the prospective borrower the following
written notice on a separate instrument, which the lender or
originator and the borrower must sign for the notice to take effect:
"IMPORTANT NOTICE TO BORROWERS
RELATED TO YOUR REVERSE MORTGAGE
"UNDER THE TEXAS TAX CODE, CERTAIN ELDERLY PERSONS MAY DEFER THE
COLLECTION OF PROPERTY TAXES ON THEIR RESIDENCE HOMESTEAD. BY
RECEIVING THIS REVERSE MORTGAGE YOU MAY BE REQUIRED TO FORGO ANY
PREVIOUSLY APPROVED DEFERRAL OF PROPERTY TAX COLLECTION AND YOU MAY
BE REQUIRED TO PAY PROPERTY TAXES ON AN ANNUAL BASIS ON THIS
PROPERTY.
"THE LENDER MAY FORECLOSE THE REVERSE MORTGAGE AND YOU MAY LOSE YOUR
HOME IF:
"(A) YOU DO NOT PAY THE TAXES OR OTHER ASSESSMENTS ON THE
HOME EVEN IF YOU ARE ELIGIBLE TO DEFER PAYMENT OF PROPERTY TAXES;
"(B) YOU DO NOT MAINTAIN AND PAY FOR PROPERTY INSURANCE ON
THE HOME AS REQUIRED BY THE LOAN DOCUMENTS;
"(C) YOU FAIL TO MAINTAIN THE HOME IN A STATE OF GOOD
CONDITION AND REPAIR;
"(D) YOU CEASE OCCUPYING THE HOME FOR A PERIOD LONGER THAN
12 CONSECUTIVE MONTHS WITHOUT THE PRIOR WRITTEN APPROVAL FROM THE
LENDER OR, IF THE EXTENSION OF CREDIT IS USED FOR THE PURCHASE OF
THE HOME, YOU FAIL TO TIMELY OCCUPY THE HOME AS YOUR PRINCIPAL
RESIDENCE WITHIN A PERIOD OF TIME AFTER THE EXTENSION OF CREDIT IS
MADE THAT IS STIPULATED IN THE WRITTEN AGREEMENT CREATING THE LIEN
ON THE HOME;
"(E) YOU SELL THE HOME OR OTHERWISE TRANSFER THE HOME
WITHOUT PAYING OFF THE LOAN;
"(F) ALL BORROWERS HAVE DIED AND THE LOAN IS NOT REPAID;
"(G) YOU COMMIT ACTUAL FRAUD IN CONNECTION WITH THE LOAN; OR
"(H) YOU FAIL TO MAINTAIN THE PRIORITY OF THE LENDER'S LIEN
ON THE HOME, AFTER THE LENDER GIVES NOTICE TO YOU, BY PROMPTLY
DISCHARGING ANY LIEN THAT HAS PRIORITY OR MAY OBTAIN PRIORITY OVER
THE LENDER'S LIEN WITHIN 10 DAYS AFTER THE DATE YOU RECEIVE THE
NOTICE, UNLESS YOU:
"(1) AGREE IN WRITING TO THE PAYMENT OF THE OBLIGATION
SECURED BY THE LIEN IN A MANNER ACCEPTABLE TO THE LENDER;
"(2) CONTEST IN GOOD FAITH THE LIEN BY, OR DEFEND
AGAINST ENFORCEMENT OF THE LIEN IN, LEGAL PROCEEDINGS SO AS TO
PREVENT THE ENFORCEMENT OF THE LIEN OR FORFEITURE OF ANY PART OF THE
HOME; OR
"(3) SECURE FROM THE HOLDER OF THE LIEN AN AGREEMENT
SATISFACTORY TO THE LENDER SUBORDINATING THE LIEN TO ALL AMOUNTS
SECURED BY THE LENDER'S LIEN ON THE HOME.
"IF A GROUND FOR FORECLOSURE EXISTS, THE LENDER MAY NOT COMMENCE
FORECLOSURE UNTIL THE LENDER GIVES YOU WRITTEN NOTICE BY MAIL THAT A
GROUND FOR FORECLOSURE EXISTS AND GIVES YOU AN OPPORTUNITY TO
REMEDY THE CONDITION CREATING THE GROUND FOR FORECLOSURE OR TO PAY
THE REVERSE MORTGAGE DEBT WITHIN THE TIME PERMITTED BY SECTION
50(k)(10), ARTICLE XVI, OF THE TEXAS CONSTITUTION. THE LENDER MUST
OBTAIN A COURT ORDER FOR FORECLOSURE EXCEPT THAT A COURT ORDER IS
NOT REQUIRED IF THE FORECLOSURE OCCURS BECAUSE:
"(1) ALL BORROWERS HAVE DIED; OR
"(2) THE HOMESTEAD PROPERTY SECURING THE LOAN IS SOLD
OR OTHERWISE TRANSFERRED."
"YOU SHOULD CONSULT WITH YOUR HOME COUNSELOR OR AN ATTORNEY IF YOU
HAVE ANY CONCERNS ABOUT THESE OBLIGATIONS BEFORE YOU CLOSE YOUR
REVERSE MORTGAGE LOAN. TO LOCATE AN ATTORNEY IN YOUR AREA, YOU MAY
WISH TO CONTACT THE STATE BAR OF TEXAS."
"THIS NOTICE IS ONLY A SUMMARY OF YOUR RIGHTS UNDER THE TEXAS
CONSTITUTION. YOUR RIGHTS ARE GOVERNED IN PART BY SECTION 50,
ARTICLE XVI, OF THE TEXAS CONSTITUTION, AND NOT BY THIS NOTICE.";
(10) that does not permit the lender to commence
foreclosure until the lender gives notice to the borrower, in the
manner provided for a notice by mail related to the foreclosure of
liens under Subsection (a)(5) [(a)(6)] of this section, that a
ground for foreclosure exists and gives the borrower at least 30
days, or at least 20 days in the event of a default under
Subdivision (6)(D)(iii) of this subsection, to:
(A) remedy the condition creating the ground for
foreclosure;
(B) pay the debt secured by the homestead
property from proceeds of the sale of the homestead property by the
borrower or from any other sources; or
(C) convey the homestead property to the lender
by a deed in lieu of foreclosure; and
(11) that is secured by a lien that may be foreclosed
upon only by a court order, if the foreclosure is for a ground other
than a ground stated by Subdivision (6)(A) or (B) of this
subsection.
(q) To the extent that any statutes of this state, including
without limitation, Section 41.001 of the Texas Property Code,
purport to limit encumbrances that may properly be fixed on
homestead property in a manner that does not permit encumbrances
for extensions of credit described in Subsection (a)(5) or (a)(6)
[or (a)(7)] of this section, the same shall be superseded to the
extent that such encumbrances shall be permitted to be fixed upon
homestead property in the manner provided for by this amendment.
(r) The supreme court shall promulgate rules of civil
procedure for expedited foreclosure proceedings related to the
foreclosure of liens under Subsection (a)(5) [(a)(6)] of this
section and to foreclosure of a reverse mortgage lien that requires
a court order.
(t) A home equity line of credit is a form of an open-end
account that may be debited from time to time, under which credit
may be extended from time to time and under which:
(1) the owner requests advances, repays money, and
reborrows money;
(2) any single debit or advance is not less than
$4,000;
(3) the owner does not use a credit card, debit card,
or similar device, or preprinted check unsolicited by the borrower,
to obtain an advance;
(4) any fees described by Subsection (a)(5)(E)
[(a)(6)(E)] of this section are charged and collected only at the
time the extension of credit is established and no fee is charged or
collected in connection with any debit or advance;
(5) the maximum principal amount that may be extended
under the account, when added to the aggregate total of the
outstanding principal balances of all indebtedness secured by the
homestead on the date the extension of credit is established, does
not exceed an amount described under Subsection (a)(5)(B)
[(a)(6)(B)] of this section;
(6) (repealed);
(7) the lender or holder may not unilaterally amend
the extension of credit; and
(8) repayment is to be made in regular periodic
installments, not more often than every 14 days and not less often
than monthly, beginning not later than two months from the date the
extension of credit is established, and:
(A) during the period during which the owner may
request advances, each installment equals or exceeds the amount of
accrued interest; and
(B) after the period during which the owner may
request advances, installments are substantially equal.
(u) The legislature may by statute delegate one or more
state agencies the power to interpret Subsections (a)(4)-(a)(6)
[(a)(5)-(a)(7)], (e)-(p), and (t), of this section. An act or
omission does not violate a provision included in those subsections
if the act or omission conforms to an interpretation of the
provision that is:
(1) in effect at the time of the act or omission; and
(2) made by a state agency to which the power of
interpretation is delegated as provided by this subsection or by an
appellate court of this state or the United States.
SECTION 4. This proposed constitutional amendment shall be
submitted to the voters at an election to be held November 5, 2019.
The ballot shall be printed to permit voting for or against the
proposition: "The constitutional amendment providing that a
residence homestead is not subject to seizure or sale for
delinquent ad valorem taxes."