86R3440 KFF-D
By: Menéndez S.B. No. 763
A BILL TO BE ENTITLED
AN ACT
relating to a creditor's remedies with respect to certain
delinquent payments owed by an elderly person who has an agent
appointed under a durable power of attorney.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 751, Estates Code, is amended by adding
Subchapter E-1 to read as follows:
SUBCHAPTER E-1. CREDITOR'S DUTY TO NOTIFY AGENT
Sec. 751.231. CREDITOR'S DUTY TO NOTIFY AGENT OF CERTAIN
DELINQUENT PAYMENTS. (a) In this section, "elderly principal"
means a principal who is 65 years of age or older.
(b) For purposes of this section, a payment is delinquent if
the creditor to whom the payment is owed does not receive the
payment on or before the 30th day after the date the payment is due,
as determined under a purchase or lease agreement or other
contractual arrangement.
(c) Notwithstanding any other law, a creditor to whom an
elderly principal owes a payment that is delinquent and arose out of
a purchase or lease agreement or other contractual arrangement that
secures the elderly principal's living quarters must comply with
the requirements of this subsection before taking an adverse action
against the elderly principal, including commencing an eviction
proceeding, if the creditor knows or has reason to know that the
elderly principal executed a durable power of attorney that grants
authority to an agent that would allow the agent to make the payment
that is delinquent. Notwithstanding any other law, before the
creditor takes the adverse action against the elderly principal,
the creditor must:
(1) submit a written request to the agent by certified
mail, return receipt requested, that the delinquent payment be made
on or before the 30th day after the date the agent receives the
request; and
(2) if the creditor does not receive payment on or
before the 30th day after the date the agent received the written
request under Subdivision (1), bring an action requesting a court
to review the agent's conduct and grant appropriate relief under
Section 751.251.
(d) A creditor who files an action with a court in
accordance with Subsection (c)(2) may not take an adverse action
against the elderly principal until the court enters an order on the
action.
(e) In addition to other remedies provided by law, an
elderly principal is entitled to recover from or against a creditor
who violates this section:
(1) a civil penalty in an amount equal to the amount of
the delinquent payment;
(2) actual damages suffered by the elderly principal
as a result of the creditor's violation of this section;
(3) court costs;
(4) injunctive relief; and
(5) reasonable attorney's fees incurred by the elderly
principal in seeking enforcement of this section.
SECTION 2. Section 751.251(a), Estates Code, is amended to
read as follows:
(a) The following may bring an action requesting a court to
construe, or determine the validity or enforceability of, a durable
power of attorney, or to review an agent's conduct under a durable
power of attorney and grant appropriate relief:
(1) the principal or the agent;
(2) a guardian, conservator, or other fiduciary acting
for the principal;
(3) a person named as a beneficiary to receive
property, a benefit, or a contractual right on the principal's
death;
(4) a governmental agency with regulatory authority to
protect the principal's welfare; [and]
(5) a person who demonstrates to the court sufficient
interest in the principal's welfare or estate; and
(6) a creditor under Section 751.231(c)(2).
SECTION 3. (a) Subchapter E-1, Chapter 751, Estates Code,
as added by this Act, applies only to a purchase or lease agreement
or other contractual arrangement entered into or renewed:
(1) on or after the effective date of this Act; and
(2) before the effective date of this Act, to the
extent the subchapter does not conflict with a provision of the
purchase or lease agreement or other contractual arrangement.
(b) To the extent Subchapter E-1, Chapter 751, Estates Code,
as added by this Act, conflicts with the provision of a purchase or
lease agreement or other contractual arrangement entered into
before the effective date of this Act, the purchase or lease
agreement or other contractual arrangement provision prevails.
SECTION 4. This Act takes effect September 1, 2019.