Texas 2023 - 88th Regular

Texas House Bill HJR20 Compare Versions

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11 88R399 JES-D
2- By: Toth, Cortez, Wilson, Schaefer H.J.R. No. 20
2+ By: Toth H.J.R. No. 20
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44
55 A JOINT RESOLUTION
66 proposing a constitutional amendment authorizing the legislature
77 to provide for exceptions to the requirement that a home equity loan
88 be closed only at the office of the lender, an attorney at law, or a
99 title company.
1010 BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1111 SECTION 1. Sections 50(a) and (g), Article XVI, Texas
1212 Constitution, are amended to read as follows:
1313 (a) The homestead of a family, or of a single adult person,
1414 shall be, and is hereby protected from forced sale, for the payment
1515 of all debts except for:
1616 (1) the purchase money thereof, or a part of such
1717 purchase money;
1818 (2) the taxes due thereon;
1919 (3) an owelty of partition imposed against the
2020 entirety of the property by a court order or by a written agreement
2121 of the parties to the partition, including a debt of one spouse in
2222 favor of the other spouse resulting from a division or an award of a
2323 family homestead in a divorce proceeding;
2424 (4) the refinance of a lien against a homestead,
2525 including a federal tax lien resulting from the tax debt of both
2626 spouses, if the homestead is a family homestead, or from the tax
2727 debt of the owner;
2828 (5) work and material used in constructing new
2929 improvements thereon, if contracted for in writing, or work and
3030 material used to repair or renovate existing improvements thereon
3131 if:
3232 (A) the work and material are contracted for in
3333 writing, with the consent of both spouses, in the case of a family
3434 homestead, given in the same manner as is required in making a sale
3535 and conveyance of the homestead;
3636 (B) the contract for the work and material is not
3737 executed by the owner or the owner's spouse before the fifth day
3838 after the owner makes written application for any extension of
3939 credit for the work and material, unless the work and material are
4040 necessary to complete immediate repairs to conditions on the
4141 homestead property that materially affect the health or safety of
4242 the owner or person residing in the homestead and the owner of the
4343 homestead acknowledges such in writing;
4444 (C) the contract for the work and material
4545 expressly provides that the owner may rescind the contract without
4646 penalty or charge within three days after the execution of the
4747 contract by all parties, unless the work and material are necessary
4848 to complete immediate repairs to conditions on the homestead
4949 property that materially affect the health or safety of the owner or
5050 person residing in the homestead and the owner of the homestead
5151 acknowledges such in writing; and
5252 (D) the contract for the work and material is
5353 executed by the owner and the owner's spouse only at the office of a
5454 third-party lender making an extension of credit for the work and
5555 material, an attorney at law, or a title company;
5656 (6) an extension of credit that:
5757 (A) is secured by a voluntary lien on the
5858 homestead created under a written agreement with the consent of
5959 each owner and each owner's spouse;
6060 (B) is of a principal amount that when added to
6161 the aggregate total of the outstanding principal balances of all
6262 other indebtedness secured by valid encumbrances of record against
6363 the homestead does not exceed 80 percent of the fair market value of
6464 the homestead on the date the extension of credit is made;
6565 (C) is without recourse for personal liability
6666 against each owner and the spouse of each owner, unless the owner or
6767 spouse obtained the extension of credit by actual fraud;
6868 (D) is secured by a lien that may be foreclosed
6969 upon only by a court order;
7070 (E) does not require the owner or the owner's
7171 spouse to pay, in addition to any interest or any bona fide discount
7272 points used to buy down the interest rate, any fees to any person
7373 that are necessary to originate, evaluate, maintain, record,
7474 insure, or service the extension of credit that exceed, in the
7575 aggregate, two percent of the original principal amount of the
7676 extension of credit, excluding fees for:
7777 (i) an appraisal performed by a third party
7878 appraiser;
7979 (ii) a property survey performed by a state
8080 registered or licensed surveyor;
8181 (iii) a state base premium for a mortgagee
8282 policy of title insurance with endorsements established in
8383 accordance with state law; or
8484 (iv) a title examination report if its cost
8585 is less than the state base premium for a mortgagee policy of title
8686 insurance without endorsements established in accordance with
8787 state law;
8888 (F) is not a form of open-end account that may be
8989 debited from time to time or under which credit may be extended from
9090 time to time unless the open-end account is a home equity line of
9191 credit;
9292 (G) is payable in advance without penalty or
9393 other charge;
9494 (H) is not secured by any additional real or
9595 personal property other than the homestead;
9696 (I) (repealed);
9797 (J) may not be accelerated because of a decrease
9898 in the market value of the homestead or because of the owner's
9999 default under other indebtedness not secured by a prior valid
100100 encumbrance against the homestead;
101101 (K) is the only debt secured by the homestead at
102102 the time the extension of credit is made unless the other debt was
103103 made for a purpose described by Subsections (a)(1)-(a)(5) or
104104 Subsection (a)(8) of this section;
105105 (L) is scheduled to be repaid:
106106 (i) in substantially equal successive
107107 periodic installments, not more often than every 14 days and not
108108 less often than monthly, beginning no later than two months from the
109109 date the extension of credit is made, each of which equals or
110110 exceeds the amount of accrued interest as of the date of the
111111 scheduled installment; or
112112 (ii) if the extension of credit is a home
113113 equity line of credit, in periodic payments described under
114114 Subsection (t)(8) of this section;
115115 (M) is closed not before:
116116 (i) the 12th day after the later of the date
117117 that the owner of the homestead submits a loan application to the
118118 lender for the extension of credit or the date that the lender
119119 provides the owner a copy of the notice prescribed by Subsection (g)
120120 of this section;
121121 (ii) one business day after the date that
122122 the owner of the homestead receives a copy of the loan application
123123 if not previously provided and a final itemized disclosure of the
124124 actual fees, points, interest, costs, and charges that will be
125125 charged at closing. If a bona fide emergency or another good cause
126126 exists and the lender obtains the written consent of the owner, the
127127 lender may provide the documentation to the owner or the lender may
128128 modify previously provided documentation on the date of closing;
129129 and
130130 (iii) the first anniversary of the closing
131131 date of any other extension of credit described by Subsection
132132 (a)(6) of this section secured by the same homestead property,
133133 except a refinance described by Paragraph (Q)(x)(f) of this
134134 subdivision, unless the owner on oath requests an earlier closing
135135 due to a state of emergency that:
136136 (a) has been declared by the president
137137 of the United States or the governor as provided by law; and
138138 (b) applies to the area where the
139139 homestead is located;
140140 (N) is closed only at the office of the lender, an
141141 attorney at law, or a title company, except as otherwise provided by
142142 statute;
143143 (O) permits a lender to contract for and receive
144144 any fixed or variable rate of interest authorized under statute;
145145 (P) is made by one of the following that has not
146146 been found by a federal regulatory agency to have engaged in the
147147 practice of refusing to make loans because the applicants for the
148148 loans reside or the property proposed to secure the loans is located
149149 in a certain area:
150150 (i) a bank, savings and loan association,
151151 savings bank, or credit union doing business under the laws of this
152152 state or the United States, including a subsidiary of a bank,
153153 savings and loan association, savings bank, or credit union
154154 described by this subparagraph;
155155 (ii) a federally chartered lending
156156 instrumentality or a person approved as a mortgagee by the United
157157 States government to make federally insured loans;
158158 (iii) a person licensed to make regulated
159159 loans, as provided by statute of this state;
160160 (iv) a person who sold the homestead
161161 property to the current owner and who provided all or part of the
162162 financing for the purchase;
163163 (v) a person who is related to the homestead
164164 property owner within the second degree of affinity or
165165 consanguinity; or
166166 (vi) a person regulated by this state as a
167167 mortgage banker or mortgage company; and
168168 (Q) is made on the condition that:
169169 (i) the owner of the homestead is not
170170 required to apply the proceeds of the extension of credit to repay
171171 another debt except debt secured by the homestead or debt to another
172172 lender;
173173 (ii) the owner of the homestead not assign
174174 wages as security for the extension of credit;
175175 (iii) the owner of the homestead not sign
176176 any instrument in which blanks relating to substantive terms of
177177 agreement are left to be filled in;
178178 (iv) the owner of the homestead not sign a
179179 confession of judgment or power of attorney to the lender or to a
180180 third person to confess judgment or to appear for the owner in a
181181 judicial proceeding;
182182 (v) at the time the extension of credit is
183183 made, the owner of the homestead shall receive a copy of the final
184184 loan application and all executed documents signed by the owner at
185185 closing related to the extension of credit;
186186 (vi) the security instruments securing the
187187 extension of credit contain a disclosure that the extension of
188188 credit is the type of credit defined by Subsection (a)(6) of this
189189 section;
190190 (vii) within a reasonable time after
191191 termination and full payment of the extension of credit, the lender
192192 cancel and return the promissory note to the owner of the homestead
193193 and give the owner, in recordable form, a release of the lien
194194 securing the extension of credit or a copy of an endorsement and
195195 assignment of the lien to a lender that is refinancing the extension
196196 of credit;
197197 (viii) the owner of the homestead and any
198198 spouse of the owner may, within three days after the extension of
199199 credit is made, rescind the extension of credit without penalty or
200200 charge;
201201 (ix) the owner of the homestead and the
202202 lender sign a written acknowledgment as to the fair market value of
203203 the homestead property on the date the extension of credit is made;
204204 (x) except as provided by Subparagraph (xi)
205205 of this paragraph, the lender or any holder of the note for the
206206 extension of credit shall forfeit all principal and interest of the
207207 extension of credit if the lender or holder fails to comply with the
208208 lender's or holder's obligations under the extension of credit and
209209 fails to correct the failure to comply not later than the 60th day
210210 after the date the lender or holder is notified by the borrower of
211211 the lender's failure to comply by:
212212 (a) paying to the owner an amount
213213 equal to any overcharge paid by the owner under or related to the
214214 extension of credit if the owner has paid an amount that exceeds an
215215 amount stated in the applicable Paragraph (E), (G), or (O) of this
216216 subdivision;
217217 (b) sending the owner a written
218218 acknowledgement that the lien is valid only in the amount that the
219219 extension of credit does not exceed the percentage described by
220220 Paragraph (B) of this subdivision, if applicable, or is not secured
221221 by property described under Paragraph (H) of this subdivision, if
222222 applicable;
223223 (c) sending the owner a written notice
224224 modifying any other amount, percentage, term, or other provision
225225 prohibited by this section to a permitted amount, percentage, term,
226226 or other provision and adjusting the account of the borrower to
227227 ensure that the borrower is not required to pay more than an amount
228228 permitted by this section and is not subject to any other term or
229229 provision prohibited by this section;
230230 (d) delivering the required documents
231231 to the borrower if the lender fails to comply with Subparagraph (v)
232232 of this paragraph or obtaining the appropriate signatures if the
233233 lender fails to comply with Subparagraph (ix) of this paragraph;
234234 (e) sending the owner a written
235235 acknowledgement, if the failure to comply is prohibited by
236236 Paragraph (K) of this subdivision, that the accrual of interest and
237237 all of the owner's obligations under the extension of credit are
238238 abated while any prior lien prohibited under Paragraph (K) remains
239239 secured by the homestead; or
240240 (f) if the failure to comply cannot be
241241 cured under Subparagraphs (x)(a)-(e) of this paragraph, curing the
242242 failure to comply by a refund or credit to the owner of $1,000 and
243243 offering the owner the right to refinance the extension of credit
244244 with the lender or holder for the remaining term of the loan at no
245245 cost to the owner on the same terms, including interest, as the
246246 original extension of credit with any modifications necessary to
247247 comply with this section or on terms on which the owner and the
248248 lender or holder otherwise agree that comply with this section; and
249249 (xi) the lender or any holder of the note
250250 for the extension of credit shall forfeit all principal and
251251 interest of the extension of credit if the extension of credit is
252252 made by a person other than a person described under Paragraph (P)
253253 of this subdivision or if the lien was not created under a written
254254 agreement with the consent of each owner and each owner's spouse,
255255 unless each owner and each owner's spouse who did not initially
256256 consent subsequently consents;
257257 (7) a reverse mortgage; or
258258 (8) the conversion and refinance of a personal
259259 property lien secured by a manufactured home to a lien on real
260260 property, including the refinance of the purchase price of the
261261 manufactured home, the cost of installing the manufactured home on
262262 the real property, and the refinance of the purchase price of the
263263 real property.
264264 (g) An extension of credit described by Subsection (a)(6) of
265265 this section may be secured by a valid lien against homestead
266266 property if the extension of credit is not closed before the 12th
267267 day after the lender provides the owner with the following written
268268 notice on a separate instrument:
269269 "NOTICE CONCERNING EXTENSIONS OF CREDIT DEFINED BY SECTION
270270 50(a)(6), ARTICLE XVI, TEXAS CONSTITUTION:
271271 "SECTION 50(a)(6), ARTICLE XVI, OF THE TEXAS CONSTITUTION
272272 ALLOWS CERTAIN LOANS TO BE SECURED AGAINST THE EQUITY IN YOUR HOME.
273273 SUCH LOANS ARE COMMONLY KNOWN AS EQUITY LOANS. IF YOU DO NOT REPAY
274274 THE LOAN OR IF YOU FAIL TO MEET THE TERMS OF THE LOAN, THE LENDER MAY
275275 FORECLOSE AND SELL YOUR HOME. THE CONSTITUTION PROVIDES THAT:
276276 "(A) THE LOAN MUST BE VOLUNTARILY CREATED WITH THE CONSENT OF
277277 EACH OWNER OF YOUR HOME AND EACH OWNER'S SPOUSE;
278278 "(B) THE PRINCIPAL LOAN AMOUNT AT THE TIME THE LOAN IS MADE
279279 MUST NOT EXCEED AN AMOUNT THAT, WHEN ADDED TO THE PRINCIPAL BALANCES
280280 OF ALL OTHER LIENS AGAINST YOUR HOME, IS MORE THAN 80 PERCENT OF THE
281281 FAIR MARKET VALUE OF YOUR HOME;
282282 "(C) THE LOAN MUST BE WITHOUT RECOURSE FOR PERSONAL LIABILITY
283283 AGAINST YOU AND YOUR SPOUSE UNLESS YOU OR YOUR SPOUSE OBTAINED THIS
284284 EXTENSION OF CREDIT BY ACTUAL FRAUD;
285285 "(D) THE LIEN SECURING THE LOAN MAY BE FORECLOSED UPON ONLY
286286 WITH A COURT ORDER;
287287 "(E) FEES AND CHARGES TO MAKE THE LOAN MAY NOT EXCEED 2
288288 PERCENT OF THE LOAN AMOUNT, EXCEPT FOR A FEE OR CHARGE FOR AN
289289 APPRAISAL PERFORMED BY A THIRD PARTY APPRAISER, A PROPERTY SURVEY
290290 PERFORMED BY A STATE REGISTERED OR LICENSED SURVEYOR, A STATE BASE
291291 PREMIUM FOR A MORTGAGEE POLICY OF TITLE INSURANCE WITH
292292 ENDORSEMENTS, OR A TITLE EXAMINATION REPORT;
293293 "(F) THE LOAN MAY NOT BE AN OPEN-END ACCOUNT THAT MAY BE
294294 DEBITED FROM TIME TO TIME OR UNDER WHICH CREDIT MAY BE EXTENDED FROM
295295 TIME TO TIME UNLESS IT IS A HOME EQUITY LINE OF CREDIT;
296296 "(G) YOU MAY PREPAY THE LOAN WITHOUT PENALTY OR CHARGE;
297297 "(H) NO ADDITIONAL COLLATERAL MAY BE SECURITY FOR THE LOAN;
298298 "(I) (repealed);
299299 "(J) YOU ARE NOT REQUIRED TO REPAY THE LOAN EARLIER THAN
300300 AGREED SOLELY BECAUSE THE FAIR MARKET VALUE OF YOUR HOME DECREASES
301301 OR BECAUSE YOU DEFAULT ON ANOTHER LOAN THAT IS NOT SECURED BY YOUR
302302 HOME;
303303 "(K) ONLY ONE LOAN DESCRIBED BY SECTION 50(a)(6), ARTICLE
304304 XVI, OF THE TEXAS CONSTITUTION MAY BE SECURED WITH YOUR HOME AT ANY
305305 GIVEN TIME;
306306 "(L) THE LOAN MUST BE SCHEDULED TO BE REPAID IN PAYMENTS THAT
307307 EQUAL OR EXCEED THE AMOUNT OF ACCRUED INTEREST FOR EACH PAYMENT
308308 PERIOD;
309309 "(M) THE LOAN MAY NOT CLOSE BEFORE 12 DAYS AFTER YOU SUBMIT A
310310 LOAN APPLICATION TO THE LENDER OR BEFORE 12 DAYS AFTER YOU RECEIVE
311311 THIS NOTICE, WHICHEVER DATE IS LATER; AND MAY NOT WITHOUT YOUR
312312 CONSENT CLOSE BEFORE ONE BUSINESS DAY AFTER THE DATE ON WHICH YOU
313313 RECEIVE A COPY OF YOUR LOAN APPLICATION IF NOT PREVIOUSLY PROVIDED
314314 AND A FINAL ITEMIZED DISCLOSURE OF THE ACTUAL FEES, POINTS,
315315 INTEREST, COSTS, AND CHARGES THAT WILL BE CHARGED AT CLOSING; AND IF
316316 YOUR HOME WAS SECURITY FOR THE SAME TYPE OF LOAN WITHIN THE PAST
317317 YEAR, A NEW LOAN SECURED BY THE SAME PROPERTY MAY NOT CLOSE BEFORE
318318 ONE YEAR HAS PASSED FROM THE CLOSING DATE OF THE OTHER LOAN, UNLESS
319319 ON OATH YOU REQUEST AN EARLIER CLOSING DUE TO A DECLARED STATE OF
320320 EMERGENCY;
321321 "(N) THE LOAN MAY CLOSE ONLY AT THE OFFICE OF THE LENDER,
322322 TITLE COMPANY, OR AN ATTORNEY AT LAW, UNLESS YOU QUALIFY FOR AN
323323 EXCEPTION PROVIDED BY LAW;
324324 "(O) THE LENDER MAY CHARGE ANY FIXED OR VARIABLE RATE OF
325325 INTEREST AUTHORIZED BY STATUTE;
326326 "(P) ONLY A LAWFULLY AUTHORIZED LENDER MAY MAKE LOANS
327327 DESCRIBED BY SECTION 50(a)(6), ARTICLE XVI, OF THE TEXAS
328328 CONSTITUTION;
329329 "(Q) LOANS DESCRIBED BY SECTION 50(a)(6), ARTICLE XVI, OF THE
330330 TEXAS CONSTITUTION MUST:
331331 "(1) NOT REQUIRE YOU TO APPLY THE PROCEEDS TO ANOTHER DEBT
332332 EXCEPT A DEBT THAT IS SECURED BY YOUR HOME OR OWED TO ANOTHER
333333 LENDER;
334334 "(2) NOT REQUIRE THAT YOU ASSIGN WAGES AS SECURITY;
335335 "(3) NOT REQUIRE THAT YOU EXECUTE INSTRUMENTS WHICH HAVE
336336 BLANKS FOR SUBSTANTIVE TERMS OF AGREEMENT LEFT TO BE FILLED IN;
337337 "(4) NOT REQUIRE THAT YOU SIGN A CONFESSION OF JUDGMENT OR
338338 POWER OF ATTORNEY TO ANOTHER PERSON TO CONFESS JUDGMENT OR APPEAR IN
339339 A LEGAL PROCEEDING ON YOUR BEHALF;
340340 "(5) PROVIDE THAT YOU RECEIVE A COPY OF YOUR FINAL LOAN
341341 APPLICATION AND ALL EXECUTED DOCUMENTS YOU SIGN AT CLOSING;
342342 "(6) PROVIDE THAT THE SECURITY INSTRUMENTS CONTAIN A
343343 DISCLOSURE THAT THIS LOAN IS A LOAN DEFINED BY SECTION 50(a)(6),
344344 ARTICLE XVI, OF THE TEXAS CONSTITUTION;
345345 "(7) PROVIDE THAT WHEN THE LOAN IS PAID IN FULL, THE LENDER
346346 WILL SIGN AND GIVE YOU A RELEASE OF LIEN OR AN ASSIGNMENT OF THE
347347 LIEN, WHICHEVER IS APPROPRIATE;
348348 "(8) PROVIDE THAT YOU MAY, WITHIN 3 DAYS AFTER CLOSING,
349349 RESCIND THE LOAN WITHOUT PENALTY OR CHARGE;
350350 "(9) PROVIDE THAT YOU AND THE LENDER ACKNOWLEDGE THE FAIR
351351 MARKET VALUE OF YOUR HOME ON THE DATE THE LOAN CLOSES; AND
352352 "(10) PROVIDE THAT THE LENDER WILL FORFEIT ALL PRINCIPAL AND
353353 INTEREST IF THE LENDER FAILS TO COMPLY WITH THE LENDER'S
354354 OBLIGATIONS UNLESS THE LENDER CURES THE FAILURE TO COMPLY AS
355355 PROVIDED BY SECTION 50(a)(6)(Q)(x), ARTICLE XVI, OF THE TEXAS
356356 CONSTITUTION; AND
357357 "(R) IF THE LOAN IS A HOME EQUITY LINE OF CREDIT:
358358 "(1) YOU MAY REQUEST ADVANCES, REPAY MONEY, AND REBORROW
359359 MONEY UNDER THE LINE OF CREDIT;
360360 "(2) EACH ADVANCE UNDER THE LINE OF CREDIT MUST BE IN AN
361361 AMOUNT OF AT LEAST $4,000;
362362 "(3) YOU MAY NOT USE A CREDIT CARD, DEBIT CARD, OR SIMILAR
363363 DEVICE, OR PREPRINTED CHECK THAT YOU DID NOT SOLICIT, TO OBTAIN
364364 ADVANCES UNDER THE LINE OF CREDIT;
365365 "(4) ANY FEES THE LENDER CHARGES MAY BE CHARGED AND COLLECTED
366366 ONLY AT THE TIME THE LINE OF CREDIT IS ESTABLISHED AND THE LENDER
367367 MAY NOT CHARGE A FEE IN CONNECTION WITH ANY ADVANCE;
368368 "(5) THE MAXIMUM PRINCIPAL AMOUNT THAT MAY BE EXTENDED, WHEN
369369 ADDED TO ALL OTHER DEBTS SECURED BY YOUR HOME, MAY NOT EXCEED 80
370370 PERCENT OF THE FAIR MARKET VALUE OF YOUR HOME ON THE DATE THE LINE OF
371371 CREDIT IS ESTABLISHED;
372372 "(6) IF THE PRINCIPAL BALANCE UNDER THE LINE OF CREDIT AT ANY
373373 TIME EXCEEDS 80 PERCENT OF THE FAIR MARKET VALUE OF YOUR HOME, AS
374374 DETERMINED ON THE DATE THE LINE OF CREDIT IS ESTABLISHED, YOU MAY
375375 NOT CONTINUE TO REQUEST ADVANCES UNDER THE LINE OF CREDIT UNTIL THE
376376 BALANCE IS LESS THAN 80 PERCENT OF THE FAIR MARKET VALUE; AND
377377 "(7) THE LENDER MAY NOT UNILATERALLY AMEND THE TERMS OF THE
378378 LINE OF CREDIT.
379379 "THIS NOTICE IS ONLY A SUMMARY OF YOUR RIGHTS UNDER THE TEXAS
380380 CONSTITUTION. YOUR RIGHTS ARE GOVERNED BY SECTION 50, ARTICLE XVI,
381381 OF THE TEXAS CONSTITUTION, AND NOT BY THIS NOTICE."
382382 If the discussions with the borrower are conducted primarily
383383 in a language other than English, the lender shall, before closing,
384384 provide an additional copy of the notice translated into the
385385 written language in which the discussions were conducted.
386386 SECTION 2. This proposed constitutional amendment shall be
387387 submitted to the voters at an election to be held November 7, 2023.
388388 The ballot shall be printed to permit voting for or against the
389389 proposition: "The constitutional amendment authorizing the
390390 legislature to provide for exceptions to the requirement that a
391391 home equity loan be closed only at the office of the lender, an
392392 attorney at law, or a title company."