Bill Text: TX HB1679 | 2021-2022 | 87th Legislature | Introduced


Bill Title: Relating to the survival of a mechanic's retainage lien after the foreclosure of a lien securing a construction loan.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2021-05-13 - Placed on General State Calendar [HB1679 Detail]

Download: Texas-2021-HB1679-Introduced.html
  87R5258 BEE-F
 
  By: Romero, Jr. H.B. No. 1679
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the survival of a mechanic's retainage lien after the
  foreclosure of a lien securing a construction loan.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 53.052, Property Code, is amended by
  amending Subsection (a) and adding Subsection (b-1) to read as
  follows:
         (a)  Except as provided by Subsection (b) or (b-1), the
  person claiming the lien must file an affidavit with the county
  clerk of the county in which the property is located or into which
  the railroad extends not later than the 15th day of the fourth
  calendar month after the day on which the indebtedness accrues.
         (b-1)  If a person claiming a lien for retainage receives a
  notice of a foreclosure sale as provided by Section 53.125, the
  person must file the affidavit not later than:
               (1)  the fifth day before the date of the foreclosure
  sale; or
               (2)  if the foreclosure sale does not occur on the date
  stated in the notice:
                     (A)  for a lien for retainage under Subchapter E,
  the date provided by Section 53.057(f); or
                     (B)  for a lien for retainage described by Section
  53.125(a)(2), the date provided under Subsection (a).
         SECTION 2.  Subchapter F, Chapter 53, Property Code, is
  amended by adding Section 53.125 to read as follows:
         Sec. 53.125.  SURVIVAL OF RETAINAGE LIEN AFTER CERTAIN
  FORECLOSURES. (a) In this section, "retainage" means:
               (1)  retainage under Subchapter E; or
               (2)  an amount or agreed percentage of money in a
  construction contract or subcontract that is withheld from a
  payment and not due to be paid until completion of the contract or
  an agreed date.
         (b)  A person who purchases property that is sold due to the
  foreclosure of a lien that secures a financing agreement or loan to
  pay for the construction or repair of an improvement to real
  property takes the property subject to the amount of retainage
  included in an unreleased lien for which an affidavit is filed under
  Section 53.052(b-1).
         (c)  A lender under a financing agreement or loan described
  by Subsection (b) shall, not later than the 35th day before the date
  of the foreclosure sale, provide written notice to the original
  contractor that states:
               (1)  the lender's intent to foreclose;
               (2)  the date of the foreclosure sale;
               (3)  the name of the owner of the property being sold;
               (4)  a legal description of the property being sold;
  and
               (5)  at the top of the notice, printed in bold capital
  letter type at least as large as the largest type used in the
  notice, but not smaller than 10-point type: "NOTICE: IN ORDER FOR
  THE RETAINAGE PORTION OF A MECHANIC'S LIEN CLAIM TO SURVIVE
  FORECLOSURE, YOU MUST FILE A LIEN AFFIDAVIT UNDER SECTION 53.052,
  TEXAS PROPERTY CODE, NOT LATER THAN THE FIFTH DAY BEFORE THE DATE OF
  THE FORECLOSURE SALE."
         (d)  An original contractor who receives a notice under this
  section must, not later than the fifth day after the date the
  contractor receives the notice, provide a copy of the notice to each
  subcontractor of the contractor.
         (e)  A subcontractor who receives a notice under Subsection
  (d) must, not later than the fifth day after the date the
  subcontractor receives the notice, provide a copy of the notice to
  each subcontractor of the subcontractor.
         SECTION 3.  The changes in law made by this Act apply only to
  a lien related to an original contract entered into on or after the
  effective date of this Act. A lien related to an original contract
  entered into before the effective date of this Act is governed by
  the law applicable to the lien immediately before the effective
  date of this Act, and that law is continued in effect for that
  purpose.
         SECTION 4.  This Act takes effect September 1, 2021.
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