TX Underwriting References

Agency

Powers of Attorney

What we require:

1. A competent principal;

  a. 18+ years old
  b. Mentally competent
  c. If principal not competent but POA is durable, obtain letter from doctor that principal was competent at time POA signed

2. Authority granted in writing and currently effective, unless triggering event has occurred under a "springing POA".

  a. For POA's that are not durable, considered "stale" if more than 1 year old and new POA needs to be executed, if possible.
  b. If new POA is not possible, the agent's certification or an affidavit by the agent should be obtained which states that the principal is still 
  alive, competent, and has not revoked the POA. (Certification does not need to be recorded).

3. Express grant of powers. POA's are strictly construed by courts. For title/escrow purposes, the authority must specify power to grant, sell & convey, or mortgage real property. Whenever possible, require the POA identify the specific property and type of transaction;

   For statutory DPOA form (Texas Estates Code Chapters 751 and 752), it must include the power to act for principal in "real estate transactions" 
   and "banking and financing transactions" if principal is the borrower.

4. Not expired by its own terms;

5. Not revoked

  a. Principal must be alive
  b. No guardian has been appointed for principal
  c. Principal is not divorced from agent, or had marriage annulled

4. Original must be notarized and recorded within 30 days of the recording of the document signed by the attorney in fact; however, if the original cannot be obtained but was filed in another county, we will accept a certified copy of the recorded document.

IF BEING USED IN A HOME EQUITY TRANSACTION, WFG REQUIRES the Power of Attorney to be executed in the office of a title company, the lender making the HEL, or an attorney.

In order to insure title,

  a. the principal must be contacted 1) prior to closing, and 2) the day of closing, to confirm they are alive and aware of the fact the POA 
  will be used in the closing transaction.
  b. the lender must have approved (if lender's instructions require prior review and approval). Any approval should be documented and retained in     
  permanent file.

If a DPOA is not immediately accepted, the following items can be requested within the following deadlines:

  a. Agent's Certification within 10 business days after DPOA is presented;
  b. Opinion of Counsel within 10 business days after DPOA is presented;
  c. English translation (if applicable) within 5 business days after DPOA is presented

Upon receipt of either the Agent's Certification or the Opinion of Counsel, have 7 business days to accept If any of the above are requested but not provided, the DPOA doesn't have to be accepted for use

Texas Estates Code §751.206 provides a laundry list of permissible reasons for rejecting DPOA, and a written statement advising of reason(s) for rejection of DPOA must be provided on or before the date the acceptance is required. If DPOA is rejected, but no permissible reason is given, principal or agent has cause of action and court can order acceptance of DPOA and award attorney's fees and costs to plaintiff.

Bankruptcy

State Specific

TEXAS ALLOWS FOR A DEBTOR TO CLAIM STATE OR FEDERAL EXEMPTIONS

Texas Property Code § 41.001. INTERESTS IN LAND EXEMPT FROM SEIZURE. (a) A homestead and one or more lots used for a place of burial of the dead are exempt from seizure for the claims of creditors except for encumbrances properly fixed on homestead property.

(c) The homestead claimant's proceeds of a sale of a homestead are not subject to seizure for a creditor's claim for six months after the date of sale.

§ 41.002. DEFINITION OF HOMESTEAD. (a) If used for the purposes of an urban home or as both an urban home and a place to exercise a calling or business, the homestead of a family or a single, adult person, not otherwise entitled to a homestead, shall consist of not more than 10 acres of land which may be in one or more contiguous lots, together with any improvements thereon.

(b) If used for the purposes of a rural home, the homestead shall consist of:

    (1)  for a family, not more than 200 acres, which may be in one or more parcels, with the improvements thereon;  or
    (2)  for a single, adult person, not otherwise entitled to a homestead, not more than 100 acres, which may be in one or more parcels, with the 
     improvements thereon.

(c) A homestead is considered to be urban if, at the time the designation is made, the property is:

    (1)  located within the limits of a municipality or its extraterritorial jurisdiction or a platted subdivision;  and
    (2)  served by police protection, paid or volunteer fire protection, and at least three of the following services provided by a municipality or 
    under contract to a municipality:
     (A)  electric;
     (B)  natural gas;
     (C)  sewer;
     (D)  storm sewer;  and
     (E)  water.

(d) The definition of a homestead as provided in this section applies to all homesteads in this state whenever created.

§ 52.042. DISCHARGE AND CANCELLATION. (a) A judgment is discharged and any abstract of judgment or judgment lien is canceled and released without further action in any court and may not be enforced if:

    (1)  the lien is against real property owned by the debtor before a petition for debtor relief was filed under federal bankruptcy law;  and
    (2)  the debt or obligation evidenced by the judgment is discharged in the bankruptcy.

(b) A judgment evidencing a debt or obligation discharged in bankruptcy does not have force or validity and may not be a lien on real property acquired by the debtor after the petition for debtor relief was filed.

§ 52.043. EXCEPTIONS TO DISCHARGE AND CANCELLATION. A judgment lien is not affected by this subchapter and may be enforced if the lien is against real property owned by the debtor before a petition for debtor relief was filed under federal bankruptcy law and:

(1) the debt or obligation evidenced by the judgment is not discharged in bankruptcy; or (2) the property is not exempted in the bankruptcy and is abandoned during the bankruptcy.