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AN ACT
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relating to a title insurance company affidavit as a release of |
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lien. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 12.017(a), Property Code, is amended by |
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amending Subdivision (6) and adding Subdivision (7) to read as |
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follows: |
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(6) "Title insurance company" means a corporation or |
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other business entity authorized [and licensed] to engage in |
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[transact] the business of insuring titles to interests in real |
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property in this state. |
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(7) "Authorized title insurance agent," with respect |
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to an Affidavit as Release of Lien under this section, means a |
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person licensed as a title insurance agent under Chapter 2651, |
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Insurance Code, and authorized in writing by a title insurance |
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company by instrument recorded in the real property records in the |
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county in which the property to which the affidavit relates is |
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located to execute one or more Affidavits as Release of Lien in |
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compliance with this section, subject to any terms, limitations, |
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and conditions that are set forth in the instrument executed by the |
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title insurance company. |
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SECTION 2. Section 12.017, Property Code, is amended by |
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amending Subsections (b), (c), (d), (e), (f), (g), (h), and (i) and |
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adding Subsections (j) and (k) to read as follows: |
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(b) This section applies only to a mortgage on: |
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(1) property consisting exclusively of a |
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one-to-four-family residence, including a residential unit in a |
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condominium regime; or |
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(2) property other than property described by |
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Subdivision (1), if the original face amount of the indebtedness |
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secured by the mortgage on the property is less than $1.5 million. |
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(c) An [If a mortgagee fails to execute and deliver a
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release of mortgage to the mortgagor or the mortgagor's designated
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agent within 60 days after the date of receipt of payment of the
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mortgage by the mortgagee in accordance with a payoff statement
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furnished by the mortgagee or its mortgage servicer, an] authorized |
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officer of a title insurance company or an authorized title |
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insurance agent may, on behalf of the mortgagor or a transferee of |
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the mortgagor who acquired title to the property described in the |
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mortgage, execute an affidavit that complies with the requirements |
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of this section and record the affidavit in the real property |
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records of each county in which the mortgage was recorded. |
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(d) An affidavit executed under Subsection (c) [this
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section] must be in substantially the following form [state that]: |
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AFFIDAVIT AS RELEASE OF LIEN |
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Before me, the undersigned authority, on this day personally |
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appeared (insert name of affiant) ("Affiant") who, being first duly |
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sworn, upon his/her oath states: |
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1. My name is (insert name of Affiant), and I am an |
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authorized officer of (insert name of title insurance company or |
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authorized title insurance agent) ("Title Company"). |
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2. This affidavit is made on behalf of the mortgagor or a |
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transferee of the mortgagor who acquired title to the property |
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described in the following mortgage: |
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(describe mortgage, the name of the mortgagor, and the property |
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described in the mortgage) |
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3. (Insert name of Mortgagee) ("Mortgagee") provided a |
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payoff statement with respect to the loan secured by the mortgage. |
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4. Affiant has ascertained that Title Company delivered to |
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Mortgagee payment of the loan secured by the mortgage in the amount |
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and time and to the location required by the payoff statement. |
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5. The mortgage relates to: |
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(A) property consisting exclusively of a |
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one-to-four-family residence, which may include a residential unit |
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in a condominium regime; or |
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(B) property, other than property described by |
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Paragraph (A) above, for which the original face amount of the |
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indebtedness secured by the mortgage on the property is less than |
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$1.5 million. |
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6. Pursuant to Section 12.017, Texas Property Code, this |
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affidavit constitutes a full and final release of the mortgage from |
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the property. |
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Signed this___ day of ___________, ____. |
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__________________________________________ (signature of affiant) |
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State of ______________ |
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County of _____________ |
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Sworn to and subscribed to before me on __________ (date) by |
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____________ (insert name of affiant). |
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_________________________________ (signature of notarial officer) |
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(Seal, if any, of notary) __________ |
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___________________________________________________ (printed |
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name) |
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My commission expires: |
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______________________ |
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[(1)
the affiant is an authorized officer of a title
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insurance company;
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[(2)
the affidavit is made on behalf of the mortgagor
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or a transferee of the mortgagor who acquired title to the property
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described in the mortgage;
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[(3)
the mortgagee provided a payoff statement with
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respect to the loan secured by the mortgage;
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[(4)
the affiant has ascertained that the mortgagee
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has received payment of the loan secured by the mortgage in
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accordance with the payoff statement, as evidenced by:
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[(A)
a bank check, certified check, escrow
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account check from the title company or title insurance agent, or
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attorney trust account check that has been negotiated by the
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mortgagee; or
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[(B)
another documentary evidence of the receipt
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of payment by the mortgagee;
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[(5)
more than 60 days have elapsed since the date
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payment was received by the mortgagee;
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[(6)
the title insurance company or its agent has
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given the mortgagee at least 15 days' notice in writing of its
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intention to execute and record an affidavit in accordance with
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this section, with a copy of the proposed affidavit attached to the
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written notice; and
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[(7)
the mortgagee has not responded in writing to the
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notification, or a request for additional payment made by the
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mortgagee has been complied with at least 15 days before the date of
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the affidavit.] |
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(e) An [The] affidavit filed under Subsection (c) or (f) |
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must include the names of the mortgagor and the mortgagee, the date |
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of the mortgage, and the volume and page or clerk's file number of |
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the real property records where the mortgage is recorded, together |
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with similar information for a recorded assignment of the mortgage. |
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(f) On or after the date of the payment to which the |
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affidavit relates, the title insurance company or authorized title |
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insurance agent must notify the mortgagee at the location to which |
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the payment is sent that the title insurance company or authorized |
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title insurance agent may file for record at any time the affidavit |
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as a release of lien. If notice required by this section is not |
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provided to the mortgagee, the title insurance company or |
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authorized title insurance agent may not file for record the |
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affidavit as a release of lien. The mortgagee may file a separate |
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affidavit describing the mortgage and property and controverting |
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the affidavit by the title insurance company or authorized title |
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insurance agent as a release of lien on or before the 45th day after |
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the date the mortgagee receives the notice if the mortgagee mails a |
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copy of the mortgagee's affidavit to the title insurance company or |
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authorized title insurance agent within that 45-day period. [The
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affiant must attach to the affidavit a photostatic copy, certified
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as a true copy of the original document, of:
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[(1)
the documentary evidence that payment has been
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received by the mortgagee, including the mortgagee's endorsement of
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a negotiated check if paid by check; and
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[(2) the payoff statement.] |
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(g) An affidavit under Subsection (c) [that is executed and
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recorded as provided by this section] operates as a release of the |
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mortgage described in the affidavit if the affidavit, as provided |
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by this section: |
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(1) is executed; |
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(2) is recorded; and |
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(3) is not controverted by a separate affidavit by the |
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mortgagee in accordance with the requirements of Subsection (f). |
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(h) The county clerk shall index an [the] affidavit filed |
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under this section in the names of the original mortgagee and the |
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last assignee of the mortgage appearing of record as the grantors |
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and in the name of the mortgagor as grantee. |
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(i) A person who knowingly causes an affidavit with false |
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information to be executed and recorded under this section is |
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liable for the penalties for filing a false affidavit, including |
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the penalties for commission of offenses under Section 37.02 of the |
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Penal Code[, and to a party injured by the affidavit for actual
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damages or $5,000, whichever is greater]. The attorney general may |
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sue to collect the penalty. A person who negligently causes an |
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affidavit with false information to be executed and recorded under |
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this section is liable to a party injured by the affidavit for |
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actual damages. If the attorney general or an injured party |
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bringing suit substantially prevails in an action under this |
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subsection, the court may award reasonable attorney's fees and |
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court costs to the prevailing party. |
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(j) A title insurance company or authorized title insurance |
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agent that, at any time after payment of the mortgage, files for |
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record an affidavit executed under Subsection (c) may use any |
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recording fee collected for the recording of a release of the |
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mortgage for the purpose of filing the affidavit. |
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(k) This section does not affect any agreement or obligation |
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of a mortgagee to execute and deliver a release of mortgage. |
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SECTION 3. The change in law made by this Act applies only |
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to an affidavit filed on or after the effective date of this Act. An |
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affidavit filed before the effective date of this Act is governed by |
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the law in effect immediately before the effective date of this Act, |
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and that law is continued in effect for that purpose. |
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SECTION 4. This Act takes effect September 1, 2009. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 3945 was passed by the House on May 4, |
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2009, by the following vote: Yeas 143, Nays 0, 2 present, not |
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voting. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 3945 was passed by the Senate on May |
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26, 2009, by the following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: _____________________ |
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Date |
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_____________________ |
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Governor |