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A BILL TO BE ENTITLED
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AN ACT
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relating to notices required and the opportunity to cure default in |
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connection with foreclosure of a lien against residential property; |
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providing a penalty. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Sections 24.005(b) and (f), Property Code, are |
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amended to read as follows: |
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(b) If the occupant is a tenant at will or by sufferance, the |
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landlord must give the tenant at least three days' written notice to |
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vacate before the landlord files a forcible detainer suit unless |
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the parties have contracted for a shorter or longer notice period in |
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a written lease or agreement. If a building is purchased at a tax |
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foreclosure sale or a trustee's foreclosure sale under a lien |
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superior to the tenant's lease and the tenant timely pays rent and |
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is not otherwise in default under the tenant's lease after |
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foreclosure, the purchaser must give a residential tenant of the |
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building at least 90 [30] days' written notice to vacate if the |
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purchaser chooses not to continue the lease. The tenant is |
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considered to timely pay the rent under this subsection if, during |
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the month of the foreclosure sale, the tenant pays the rent for that |
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month to the landlord before receiving any notice that a |
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foreclosure sale is scheduled during the month or pays the rent for |
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that month to the foreclosing lienholder or the purchaser at |
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foreclosure not later than the fifth day after the date of receipt |
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of a written notice of the name and address of the purchaser that |
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requests payment. At least 21 days before the date of [Before] a |
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foreclosure sale, a foreclosing lienholder shall mail [may give] |
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written notice of sale to the address of the property subject to |
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foreclosure [a tenant] stating that a foreclosure notice has been |
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given to the landlord or owner of the property and specifying the |
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date of the foreclosure. The notice must be mailed in a manner |
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described by Section 51.002(e). |
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(f) The notice to vacate shall be mailed to [given in person
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or by mail at] the address of the premises in question [. Notice in
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person may be by personal delivery to the tenant or any person
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residing at the premises who is 16 years of age or older or personal
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delivery to the premises and affixing the notice to the inside of
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the main entry door. Notice by mail may be by regular mail, by
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registered mail, or] by certified mail or by the United States |
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Postal Service using signature confirmation service [, return
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receipt requested, to the premises in question. If the dwelling has
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no mailbox and has a keyless bolting device, alarm system, or
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dangerous animal that prevents the landlord from entering the
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premises to leave the notice to vacate on the inside of the main
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entry door, the landlord may securely affix the notice on the
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outside of the main entry door]. |
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SECTION 2. Section 51.002, Property Code, is amended by |
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amending Subsections (b), (d), and (e) and adding Subsections |
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(b-2), (i), and (j) to read as follows: |
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(b) Except as provided by Subsection (b-1), notice of the |
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sale, which must include a statement of the earliest time at which |
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the sale will begin must be given at least 21 days before the date of |
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the sale by: |
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(1) posting at the courthouse door of each county in |
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which the property is located a written notice designating the |
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county in which the property will be sold; |
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(2) filing in the office of the county clerk of each |
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county in which the property is located a copy of the notice posted |
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under Subdivision (1); and |
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(3) mailing [serving] written notice of the sale to: |
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(A) [by certified mail on] each debtor who, |
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according to the records of the mortgage servicer of the debt, is |
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obligated to pay the debt; and |
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(B) the address of the property subject to |
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foreclosure. |
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(b-2) A debtor who receives a notice of sale under |
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Subsection (b)(3)(A) shall, not later than the fifth day after the |
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date the debtor receives the notice, give each tenant of the |
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property subject to foreclosure a written notice that includes: |
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(1) the date of the foreclosure sale; and |
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(2) a copy of Section 24.005(b). |
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(d) Notwithstanding any agreement to the contrary, the |
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mortgage servicer of the debt shall serve a debtor in default under |
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a deed of trust or other contract lien on real property used as the |
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debtor's residence with written notice by certified mail stating |
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that the debtor is in default under the deed of trust or other |
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contract lien and giving the debtor at least 30 [20] days to cure |
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the default before notice of sale can be given under Subsection (b). |
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The entire calendar day on which the notice required by this |
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subsection is given, regardless of the time of day at which the |
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notice is given, is included in computing the 30-day [20-day] |
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notice period required by this subsection, and the entire calendar |
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day on which notice of sale is given under Subsection (b) is |
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excluded in computing the 30-day [20-day] notice period. |
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(e) Service of a notice under this section must be by |
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certified mail or by the United States Postal Service using |
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signature confirmation service and is complete when the notice is |
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deposited in the United States mail[, postage prepaid and addressed
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to the debtor at the debtor's last known address]. The affidavit of |
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a person knowledgeable of the facts to the effect that service was |
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completed is prima facie evidence of service. |
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(i) The failure to comply with the notice requirements of |
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Subsection (b) voids a foreclosure sale conducted under this |
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section. |
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(j) A debtor who fails to comply with Subsection (b-2) is |
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liable to a tenant for an amount equal to two months' rent under the |
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lease. |
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SECTION 3. Section 51.0075(e), Property Code, is amended to |
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read as follows: |
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(e) The name and a street address for a trustee or |
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substitute trustees shall be disclosed on each [the] notice |
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required by Section 51.002(b). |
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SECTION 4. Section 86.021(a), Local Government Code, is |
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amended to read as follows: |
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(a) A constable shall execute and return as provided by law |
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each process, warrant, and precept that is directed to the |
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constable and is delivered by a lawful officer. [Notices required
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by Section 24.005, Property Code, relating to eviction actions are
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process for purposes of this section that may be executed by a
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constable.] |
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SECTION 5. Section 154.005(d), Local Government Code, is |
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repealed. |
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SECTION 6. The change in law made by this Act applies only |
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to a notice required to be provided on or after September 1, 2009. A |
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notice required to be provided before September 1, 2009, is |
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governed by the law in effect immediately before that date, and that |
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law is continued in effect for that purpose. |
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SECTION 7. This Act takes effect September 1, 2009. |