Texas 2021 - 87th Regular

Texas House Bill HB2284 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	87R9575 JES-D
2	2	By: Toth H.B. No. 2284
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the physical presence of a borrower at the closing of a
8	8	home equity loan.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 343.002(b), Finance Code, is amended to
11	11	read as follows:
12	12	(b) Except as provided by Subchapter D, this [This] chapter
13	13	does not apply to:
14	14	(1) a reverse mortgage; or
15	15	(2) an open-end account, as defined by Section
16	16	301.002.
17	17	SECTION 2. Chapter 343, Finance Code, is amended by adding
18	18	Subchapter D to read as follows:
19	19	SUBCHAPTER D. HOME EQUITY LOANS
20	20	Sec. 343.301. DEFINITION. In this subchapter, "home equity
21	21	loan" means an extension of credit described by Section 50(a)(6),
22	22	Article XVI, Texas Constitution.
23	23	Sec. 343.302. PHYSICAL PRESENCE OF CERTAIN BORROWERS AT
24	24	CLOSING NOT REQUIRED. (a) This section applies to the closing of a
25	25	home equity loan by a borrower who:
26	26	(1) is located outside of this state at the time of the
27	27	closing and is:
28	28	(A) a member of the armed forces of the United
29	29	States who is on active duty;
30	30	(B) an officer of the Commissioned Corps of the
31	31	United States Public Health Service who is on active duty;
32	32	(C) a member of reserve components of the armed
33	33	forces of the United States not described by Paragraph (A) who is on
34	34	active duty;
35	35	(D) the spouse or surviving spouse of a person
36	36	described by Paragraph (A), (B), or (C); or
37	37	(E) a civilian employee of the federal government
38	38	employed by, serving with, or accompanying the armed forces of the
39	39	United States, if assigned to a foreign country or a vessel or unit
40	40	of the armed forces of the United States;
41	41	(2) has a disability that prohibits travel or is
42	42	quarantined to protect the borrower's health or the health of
43	43	others, as verified by a written letter from a physician; or
44	44	(3) is unable to travel to the closing because the
45	45	borrower is incarcerated or under house arrest.
46	46	(b) In lieu of closing a home equity loan in person at the
47	47	office of the lender, an attorney, or a title company, a borrower
48	48	described by Subsection (a) may close the loan:
49	49	(1) from a remote location using remote online
50	50	notarization; or
51	51	(2) through an agent who:
52	52	(A) is acting under a durable power of attorney
53	53	that expressly grants the agent the authority to engage in a home
54	54	equity loan transaction on behalf of the borrower, regardless of
55	55	where the borrower signed the power of attorney; and
56	56	(B) appears in person for the closing at the
57	57	office of the lender, attorney, or title company on behalf of the
58	58	borrower.
59	59	SECTION 3. Section 752.051, Estates Code, is amended to
60	60	read as follows:
61	61	Sec. 752.051. FORM. The following form is known as a
62	62	"statutory durable power of attorney":
63	63	STATUTORY DURABLE POWER OF ATTORNEY
64	64	NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING.
65	65	THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, SUBTITLE P,
66	66	TITLE 2, ESTATES CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE POWERS,
67	67	OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT AUTHORIZE
68	68	ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS FOR YOU. YOU
69	69	MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO DO SO. IF YOU
70	70	WANT YOUR AGENT TO HAVE THE AUTHORITY TO SIGN HOME EQUITY LOAN
71	71	DOCUMENTS ON YOUR BEHALF, THIS POWER OF ATTORNEY MUST BE SIGNED BY
72	72	YOU AT THE OFFICE OF THE LENDER, AN ATTORNEY AT LAW, OR A TITLE
73	73	COMPANY, UNLESS YOU QUALIFY FOR AN EXCEPTION UNDER SECTION 343.302,
74	74	FINANCE CODE.
75	75	You should select someone you trust to serve as your agent.
76	76	Unless you specify otherwise, generally the agent's authority will
77	77	continue until:
78	78	(1) you die or revoke the power of attorney;
79	79	(2) your agent resigns, is removed by court order, or
80	80	is unable to act for you; or
81	81	(3) a guardian is appointed for your estate.
82	82	I, __________ (insert your name and address), appoint
83	83	__________ (insert the name and address of the person appointed) as
84	84	my agent to act for me in any lawful way with respect to all of the
85	85	following powers that I have initialed below. (YOU MAY APPOINT
86	86	CO-AGENTS. UNLESS YOU PROVIDE OTHERWISE, CO-AGENTS MAY ACT
87	87	INDEPENDENTLY.)
88	88	TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN
89	89	FRONT OF (O) AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS
90	90	LISTED IN (A) THROUGH (N).
91	91	TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE
92	92	POWER YOU ARE GRANTING.
93	93	TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE
94	94	POWER. YOU MAY, BUT DO NOT NEED TO, CROSS OUT EACH POWER WITHHELD.
95	95	____ (A) Real property transactions, including home equity
96	96	loan transactions;
97	97	____ (B) Tangible personal property transactions;
98	98	____ (C) Stock and bond transactions;
99	99	____ (D) Commodity and option transactions;
100	100	____ (E) Banking and other financial institution
101	101	transactions;
102	102	____ (F) Business operating transactions;
103	103	____ (G) Insurance and annuity transactions;
104	104	____ (H) Estate, trust, and other beneficiary transactions;
105	105	____ (I) Claims and litigation;
106	106	____ (J) Personal and family maintenance;
107	107	____ (K) Benefits from social security, Medicare, Medicaid,
108	108	or other governmental programs or civil or military service;
109	109	____ (L) Retirement plan transactions;
110	110	____ (M) Tax matters;
111	111	____ (N) Digital assets and the content of an electronic
112	112	communication;
113	113	____ (O) ALL OF THE POWERS LISTED IN (A) THROUGH (N). YOU DO
114	114	NOT HAVE TO INITIAL THE LINE IN FRONT OF ANY OTHER POWER IF YOU
115	115	INITIAL LINE (O).
116	116	SPECIAL INSTRUCTIONS:
117	117	Special instructions applicable to agent compensation
118	118	(initial in front of one of the following sentences to have it
119	119	apply; if no selection is made, each agent will be entitled to
120	120	compensation that is reasonable under the circumstances):
121	121	____ My agent is entitled to reimbursement of reasonable
122	122	expenses incurred on my behalf and to compensation that is
123	123	reasonable under the circumstances.
124	124	____ My agent is entitled to reimbursement of reasonable
125	125	expenses incurred on my behalf but shall receive no compensation
126	126	for serving as my agent.
127	127	Special instructions applicable to co-agents (if you have
128	128	appointed co-agents to act, initial in front of one of the following
129	129	sentences to have it apply; if no selection is made, each agent will
130	130	be entitled to act independently):
131	131	____ Each of my co-agents may act independently for me.
132	132	____ My co-agents may act for me only if the co-agents act
133	133	jointly.
134	134	____ My co-agents may act for me only if a majority of the
135	135	co-agents act jointly.
136	136	Special instructions applicable to gifts (initial in front of
137	137	the following sentence to have it apply):
138	138	____ I grant my agent the power to apply my property to make gifts
139	139	outright to or for the benefit of a person, including by the
140	140	exercise of a presently exercisable general power of appointment
141	141	held by me, except that the amount of a gift to an individual may not
142	142	exceed the amount of annual exclusions allowed from the federal
143	143	gift tax for the calendar year of the gift.
144	144	ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
145	145	LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
146	146	________________________________________________________________
147	147	________________________________________________________________
148	148	________________________________________________________________
149	149	________________________________________________________________
150	150	________________________________________________________________
151	151	________________________________________________________________
152	152	________________________________________________________________
153	153	________________________________________________________________
154	154	________________________________________________________________
155	155	UNLESS YOU DIRECT OTHERWISE BELOW, THIS POWER OF ATTORNEY IS
156	156	EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT TERMINATES.
157	157	CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
158	158	ALTERNATIVE NOT CHOSEN:
159	159	(A) This power of attorney is not affected by my subsequent
160	160	disability or incapacity.
161	161	(B) This power of attorney becomes effective upon my
162	162	disability or incapacity.
163	163	YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY
164	164	IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
165	165	IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT
166	166	YOU CHOSE ALTERNATIVE (A).
167	167	If Alternative (B) is chosen and a definition of my
168	168	disability or incapacity is not contained in this power of
169	169	attorney, I shall be considered disabled or incapacitated for
170	170	purposes of this power of attorney if a physician certifies in
171	171	writing at a date later than the date this power of attorney is
172	172	executed that, based on the physician's medical examination of me,
173	173	I am mentally incapable of managing my financial affairs. I
174	174	authorize the physician who examines me for this purpose to
175	175	disclose my physical or mental condition to another person for
176	176	purposes of this power of attorney. A third party who accepts this
177	177	power of attorney is fully protected from any action taken under
178	178	this power of attorney that is based on the determination made by a
179	179	physician of my disability or incapacity.
180	180	I agree that any third party who receives a copy of this
181	181	document may act under it. Termination of this durable power of
182	182	attorney is not effective as to a third party until the third party
183	183	has actual knowledge of the termination. I agree to indemnify the
184	184	third party for any claims that arise against the third party
185	185	because of reliance on this power of attorney. The meaning and
186	186	effect of this durable power of attorney is determined by Texas law.
187	187	If any agent named by me dies, becomes incapacitated,
188	188	resigns, refuses to act, or is removed by court order, or if my
189	189	marriage to an agent named by me is dissolved by a court decree of
190	190	divorce or annulment or is declared void by a court (unless I
191	191	provided in this document that the dissolution or declaration does
192	192	not terminate the agent's authority to act under this power of
193	193	attorney), I name the following (each to act alone and
194	194	successively, in the order named) as successor(s) to that agent:
195	195	__________.
196	196	Signed this ______ day of __________, _____________
197	197	___________________________
198	198	(your signature)
199	199	State of _______________________
200	200	County of ______________________
201	201	This document was acknowledged before me on ____________(date) by
202	202	________________________
203	203	(name of principal)
204	204	____________________________
205	205	(signature of notarial officer)
206	206	(Seal, if any, of notary) ______________________________________
207	207	(printed name)
208	208	My commission expires: __________
209	209	IMPORTANT INFORMATION FOR AGENT
210	210	Agent's Duties
211	211	When you accept the authority granted under this power of
212	212	attorney, you establish a "fiduciary" relationship with the
213	213	principal. This is a special legal relationship that imposes on you
214	214	legal duties that continue until you resign or the power of attorney
215	215	is terminated, suspended, or revoked by the principal or by
216	216	operation of law. A fiduciary duty generally includes the duty to:
217	217	(1) act in good faith;
218	218	(2) do nothing beyond the authority granted in this
219	219	power of attorney;
220	220	(3) act loyally for the principal's benefit;
221	221	(4) avoid conflicts that would impair your ability to
222	222	act in the principal's best interest; and
223	223	(5) disclose your identity as an agent when you act for
224	224	the principal by writing or printing the name of the principal and
225	225	signing your own name as "agent" in the following manner:
226	226	(Principal's Name) by (Your Signature) as Agent
227	227	In addition, the Durable Power of Attorney Act (Subtitle P,
228	228	Title 2, Estates Code) requires you to:
229	229	(1) maintain records of each action taken or decision
230	230	made on behalf of the principal;
231	231	(2) maintain all records until delivered to the
232	232	principal, released by the principal, or discharged by a court; and
233	233	(3) if requested by the principal, provide an
234	234	accounting to the principal that, unless otherwise directed by the
235	235	principal or otherwise provided in the Special Instructions, must
236	236	include:
237	237	(A) the property belonging to the principal that
238	238	has come to your knowledge or into your possession;
239	239	(B) each action taken or decision made by you as
240	240	agent;
241	241	(C) a complete account of receipts,
242	242	disbursements, and other actions of you as agent that includes the
243	243	source and nature of each receipt, disbursement, or action, with
244	244	receipts of principal and income shown separately;
245	245	(D) a listing of all property over which you have
246	246	exercised control that includes an adequate description of each
247	247	asset and the asset's current value, if known to you;
248	248	(E) the cash balance on hand and the name and
249	249	location of the depository at which the cash balance is kept;
250	250	(F) each known liability;
251	251	(G) any other information and facts known to you
252	252	as necessary for a full and definite understanding of the exact
253	253	condition of the property belonging to the principal; and
254	254	(H) all documentation regarding the principal's
255	255	property.
256	256	Termination of Agent's Authority
257	257	You must stop acting on behalf of the principal if you learn
258	258	of any event that terminates or suspends this power of attorney or
259	259	your authority under this power of attorney. An event that
260	260	terminates this power of attorney or your authority to act under
261	261	this power of attorney includes:
262	262	(1) the principal's death;
263	263	(2) the principal's revocation of this power of
264	264	attorney or your authority;
265	265	(3) the occurrence of a termination event stated in
266	266	this power of attorney;
267	267	(4) if you are married to the principal, the
268	268	dissolution of your marriage by a court decree of divorce or
269	269	annulment or declaration that your marriage is void, unless
270	270	otherwise provided in this power of attorney;
271	271	(5) the appointment and qualification of a permanent
272	272	guardian of the principal's estate unless a court order provides
273	273	otherwise; or
274	274	(6) if ordered by a court, your removal as agent
275	275	(attorney in fact) under this power of attorney. An event that
276	276	suspends this power of attorney or your authority to act under this
277	277	power of attorney is the appointment and qualification of a
278	278	temporary guardian unless a court order provides otherwise.
279	279	Liability of Agent
280	280	The authority granted to you under this power of attorney is
281	281	specified in the Durable Power of Attorney Act (Subtitle P, Title 2,
282	282	Estates Code). If you violate the Durable Power of Attorney Act or
283	283	act beyond the authority granted, you may be liable for any damages
284	284	caused by the violation or subject to prosecution for
285	285	misapplication of property by a fiduciary under Chapter 32 of the
286	286	Texas Penal Code.
287	287	THE AGENT, BY ACCEPTING OR ACTING UNDER THE APPOINTMENT,
288	288	ASSUMES THE FIDUCIARY AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT.
289	289	SECTION 4. The changes in law made by this Act apply only to
290	290	a home equity loan closed on or after the effective date of this
291	291	Act. A home equity loan closed before the effective date of this Act
292	292	is governed by the law in effect on the date the loan was closed, and
293	293	the former law is continued in effect for that purpose.
294	294	SECTION 5. This Act takes effect January 1, 2022, but only
295	295	if the constitutional amendment proposed by the 87th Legislature,
296	296	Regular Session, 2021, authorizing the legislature to provide for
297	297	exceptions to the requirement that a home equity loan be closed only
298	298	at the office of the lender, an attorney at law, or a title company
299	299	is approved by the voters. If that proposed constitutional
300	300	amendment is not approved by the voters, this Act has no effect.