HBA-NLM C.S.H.B. 3714 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 3714
By: Shields
Financial Institutions
4/30/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Lenders who secure their loans by a lien on personal property (collateral)
depend on the value of the property to ensure the principal of the loan
will be paid if the borrower defaults on the loan. However, if the property
is stolen or destroyed, the lender no longer has any means of ensuring
repayment of the principal.  Some lenders require borrowers to obtain
insurance on the collateral and list the lender as the beneficiary of the
insurance.  There are currently no rules regulating collateral protection
insurance.  C.S.H.B. 3714 establishes rules for lenders to ensure
collateral is insured against loss at the rate most reasonable to the
consumer. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 341, Finance Code, by adding Subchapter F, as
follows: 

SUBCHAPTER F.  COLLATERAL PROTECTION INSURANCE

Sec. 341.501. DEFINITIONS. Defines "collateral," "collateral protection
insurance," "credit agreement," "credit transaction," "creditor," "debtor,"
and "title insurance." 

Sec. 341.502.  COLLATERAL PROTECTION INSURANCE.  (a) Provides that
collateral protection insurance is insurance coverage that is purchased by
a creditor after the date of a credit agreement, provides monetary
protection against the collateral or liability arising out of ownership or
use, and is purchased according to the terms of certain credit agreements. 

(b) Provides that collateral insurance includes insurance coverage that is
purchased to protect only the interest of the creditor or insurance
coverage to protect both the creditor and the debtor. 

(c) Authorizes the term of a collateral protection insurance policy to
extend to the full term of the credit transaction. 

(d) Provides that collateral protection insurance does not include certain
insurance coverage. 

Sec. 341.503. CREDITOR DUTIES.  (a) Authorizes a creditor to place
collateral protection insurance provided that the debtor has entered into a
credit transaction with the creditor, the credit transaction has been
reduced to a credit agreement which requires the debtor to maintain
insurance, and a notice containing specified language has been provided to
the debtor. 

(b) Specifies that the required notice must be printed in type that is as
least 10 point in size, and in all bold, capital letters.  

 (c) Requires the creditor to mail to the debtor a notice and specifies
that the notice must contain specified information. 

(d) Requires the creditor, if the notice is returned to the creditor
undelivered, to locate the debtor by using the procedures the creditor
regularly uses for locating debtors, and mal a second notice at the time
the debtor is located. 

(e) Provides that the terms for repayment of the costs of the collateral
protection insurance must include one or more of the enumerated payment
methods. 

Sec. 341.504. AMORTIZATION OF DEBT.  Requires the creditor, if any form of
amortization is used by the creditor, to send to the debtor notice of the
terms of the amortization and change in the debtor's periodic payment.  
 
Sec. 341.505.  CANCELLATION OF COLLATERAL PROTECTION INSURANCE. Authorizes
a debtor at any time to cause the cancellation of collateral protection
insurance by providing proper evidence to the creditor that the debtor has
obtained insurance as required by the credit agreement.  Provides that if a
debtor provides the creditor with proper evidence that the debtor had
insurance on the collateral as required by the credit agreement on or
before the date the collateral protection insurance is effective and that
the debtor continues to have insurance on the collateral as required by the
credit agreement, the creditor is required to cancel the insurance that it
purchased and may not charge the debtor any costs, interest, or other
charges in connection with the insurance.  
 
Sec. 341.506. REFUND OF UNEARNED PREMIUMS.  Provides that upon cancellation
or expiration of collateral protection insurance, the amount of unearned
premiums, if any, as calculated in accordance with the Texas Automobile
Rules and Rating Manual or the policy filed by the insurer with the Texas
Department of Insurance (department), is required to be refunded to the
creditor.  Requires the creditor to distribute a refund of unearned
premiums directly to the debtor by check or other means. 
 
Sec. 341.507. CHOICE OF CARRIER.  Authorizes collateral protection
insurance to be placed with an insurer that is authorized to write
insurance in this state or an eligible surplus lines insurer selected by
the creditor. Requires the insurance to be evidenced by an individual
policy or a certificate of insurance.  
 
Sec. 341.508.  CREDITOR LIABILITY.  (a) Provides that a creditor, its
insurer or the insurer's agent that places collateral protection insurance
in compliance with the terms of this subchapter is not directly or
indirectly liable in any manner to a debtor, co-signor, guarantor, or any
other person, in connection with the placement of the collateral protection
insurance.  

(b) Provides that this subchapter does not impose a fiduciary relationship
between the creditor and the debtor.  Provides that placement of collateral
protection insurance is for the sole purpose of protecting the interest of
the creditor when the debtor fails to insure collateral as required by the
credit agreement.  

(c) Provides that a creditor is not required to purchase collateral
protection insurance or to otherwise insure collateral.  Provides that a
creditor is not  liable to a debtor or to any other person for not
purchasing collateral protection insurance, as a result of the amount or
level of coverage of collateral protection insurance purchased by the
creditor, or because the creditor purchased collateral protection insurance
that protects only the interests of the creditor or less than all of the
interest of the debtor.  Provides that this subchapter does not create a
cause of action for damages on behalf of the debtor or any other person in
connection with the placement of collateral protection insurance.  
 
Sec. 341.509.  RIGHTS OF CREDITOR AND DEBTOR.  Provides that the
obligations and rights of the creditor and the debtor with respect to the
collateral under Chapters 1-9, Business & Commerce Code, are not affected
by this subchapter. Provides that this subchapter does not impair any other
remedies, rights, or options available to a creditor  pursuant to any law,
regulation, ruling, court order, contract, or agreement.  Provides that
this subchapter does not impair or alter other requirements of this code or
other law that may apply to a credit transaction. 

SECTION 2.  Amends the heading to Subchapter D, Chapter 341, Finance Code,
as follows: 

SUBCHAPTER D.  New title: ADVERTISING REQUIREMENTS.  Deletes "and
insurance." 

SECTION 3.  Repealer: Section 341.302, Finance Code.

SECTION 4.Effective date: September 1, 1999.
  Makes application of this Act prospective.

SECTION 5.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 3714 modifies the original in the caption by deleting the words
"for lenders." 

C.S.H.B. 3714 modifies the original by conforming to Legislative Council
format. 

C.S.H.B. 3714 modifies the original by adding new SECTION 1.  This section
amends Chapter 341, Finance Code, by adding Subchapter F.  The original
bill proposed to add Chapter 27 to the Insurance Code. 

C.S.H.B. 3714 modifies the original in SECTION 1 (Section 1) by removing
proposed Section 15, which authorized this act to be cited as the
Collateral Protection Insurance Act, concerning the protection of
collateral pledged to ensure payment or performance under a credit
agreement.  

C.S.H.B. 3714 modifies the original in SECTION 1 by removing proposed
Section 15, which required the creditor, within 30 calendar days following
the purchase date of collateral protection insurance, to mail or have
mailed to the debtor at the last known address on file with the creditor, a
notice entitled "Notice of Placement of Insurance" in a form substantially
similar to the specified format.  Section 15 also required the terms for
repayment of the costs of the collateral protection insurance, which is
required to include interest and any other charges imposed by the creditor
in connection with the placement of the collateral protection insurance, to
include one or more of the enumerated payment methods. 

C.S.H.B. 3714 modifies the original in SECTION 1 by removing proposed
Section 15, which required substantial compliance with the provisions of
this Act to be mandatory for the placement of collateral protection
insurance in this state by a creditor pursuant to a credit agreement
entered into on or after September 30, 1999.  This section prohibited any
provision of this Act from being held or applied against a creditor in
connection with collateral protection insurance placed prior to September
30, 1999.  This section also required a creditor that places collateral
protection insurance pursuant to a credit agreement entered into prior to
September 30, 1999, to have available to it all of the rights provided by
this Act if the creditor is in substantial compliance with the provisions
of this Act other than the notice provision of Section 10.  

C.S.H.B. 3714 redesignates proposed sections in the original SECTION 1 to
sections in new Subchapter F in the substitute, as follows: 

_Section 341.501 (Definitions) redesignated from Section 5;
_Section 341.502 (Collateral Protection Insurance) redesignated from
Section 5; 
_Section 341.503 (Creditor Duties) redesignated from Section 10 and Section
15(b); 
_Section 341.504 (Amortization of Debt) redesignated from Section 20;
_Section 341.505 (Cancellation of Collateral Protection Insurance)
redesignated from Section 25; 
_Section 341.506 (Refund of Unearned Premiums) redesignated from Section 30;
_Section 341.507 (Choice of Carrier) redesignated from Section 35;
 _Section 341.508 (Creditor Liability) redesignated from Sections 40,45 and
50; and 
_Section 341.509 (Rights of Creditor and Debtor) redesignated from Sections
55 and 60. 

C.S.H.B. 3714 adds a new SECTION 3.  This section repeals Section 341.302,
Finance Code. 

C.S.H.B. 3714 redesignates SECTIONS 2 and 3 (effective date, emergency
clause) of the original to SECTIONS 4 and 5 in the substitute. The
substitute provides that application of this Act is prospective.