Texas Mortgage Lending Regulatory Round Up
Revised Uniform Fiduciary Access to Digital Assets Act
Effective September 1, 2017, Senate Bill 1193 amends the Texas Estates Code to adopt Title 4: the Texas Revised Uniform Fiduciary Access to Digital Assets Act (the “Act”).
As defined by the Act, a digital asset is “an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.”
The Act outlines the general procedures for access to digital assets, which includes the use of an online tool that may direct the custodian to disclose the user’s digital assets to a designated recipient. Additionally, access may be granted via “the content of an electronic communication sent or received by the user, in a will, trust, power of attorney, or other record.”
The procedure under which a custodian may disclose the digital assets of a user to a fiduciary or designated recipient is additionally outlined, including the right of a custodian to assess a reasonable administrative charge for providing access.
The Act outlines the process by which digital assets may be accessed by court order in the case of a deceased user, how an agent may access the digital assets of a user under a power of attorney, and how a trustee or guardian may access the user’s digital assets.
The Act also includes an updated Power of Attorney Form which includes the express reference to grant the agent access to digital assets and the content of an electronic communication.
Residential Property Power of Sale
House Bill 1470 amends Texas Title 2, Business & Commerce Code, by adding Chapter 22: “Public Sale of Residential Real Property Under Power of Sale.” This section is applicable “only to a public sale of residential property conducted under a power of sale in a security instrument.” Chapter 22 includes applicable definitions relating to the foreclosure sale process, contract requirements for the trustee, the information required from the winning bidder, the obligation of the trustee to provide a receipt and deliver the deed to the winning bidder, and the maintenance requirements concerning the proceeds of the sale.
This amendment is effective September 1, 2017.
Residential Mortgage Loan Originator Pre-Licensing Education Requirements
The Texas Legislature has passed House Bill 3342 amending Section 180.056 (h) regarding the requirement that a Residential Mortgage Loan Originator “who fails to maintain a residential mortgage loan originator license for the period of time established by rule of the rulemaking authority must retake the prelicensing education requirements prescribed by the SAFE Mortgage Licensing Act.”
This requirement is effective January 1, 2018.
The Texas Legislature passed House Bill No. 1217 concerning the appointment and performance of an online notary public and relating to the online acknowledgment of written instruments.
An online notary may take the acknowledgment by “appearing by an interactive two-way audio and video communication that meets the online notarization requirements under Subchapter C, Chapter 406, Government Code, and rules adopted under this subchapter.”
The Bill directs that the standards for online notarization shall be developed and maintained by the secretary of state and include standards for credential analysis and identity proofing.
“Credential analysis” is defined as “a process or service … through which a third person affirms the validity of a government-issued identification credential through review of public and proprietary data sources.” Similarly, “identity proofing” is defined as “a process or service … through which a third person affirms the identity of an individual through a review of personal information from public and proprietary data sources.”
This amendment is effective July 1, 2018.