reglab/statecodes huggingface dataset:
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-22 - Priority of preferred claims, special deposit claims and secured claims.

A. In a delinquencey [delinquency] proceeding against an insurer domiciled in this state, claims owing to residents of ancillary states shall be preferred claims if like claims are preferred under the laws of that state. All such claims, whether owing to residents or nonresidents, shall be given equal priority of payment from general assets regardless of where such assets are located.
B. In a delinquency proceeding against an insurer domiciled in a reciprocal state, claims owing to residents of this state shall be preferred if like claims are preferred by the laws of that state.
C. The owners of special deposit claims against an insurer for which a receiver is appointed in this or any other state shall be given priority against their several special deposits in accordance with the provisions of the statutes governing the creation and maintenance of such deposits. If there is a deficiency in any such deposit so that the claims secured thereby are not fully discharged therefrom, the claimants may share in the general assets, but such sharing shall be deferred until general creditors, and also claimants against other special deposits who have received smaller percentages from their respective special deposits, have been paid percentages of their claims equal to the percentage paid from the special deposit.
D. The owner of a secured claim against an insurer for which a receiver has been appointed in this or any other state may surrender his security and file his claim as a general creditor, or the claim may be discharged by resort to the security, in which case the deficiency, if any, shall be treated as a claim against the general assets of the insurer on the same basis as claims of unsecured creditors. If the amount of the deficiency has been adjudicated in ancillary proceedings as provided in this act, or if it has been adjudicated by a court of competent jurisdiction in proceedings in which the domiciliary receiver has had notice and opportunity to be heard, such amount shall be conclusive; otherwise the amount shall be determined in the delinquency proceeding in the domiciliary state.
E. The claims of policyholders and subrogated claims of a guaranty fund shall be preferred over the claims of unsecured creditors.
History:
Laws 1984, ch. 127, § 714.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and it is not part of the law.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
43 Am. Jur. 2d Insurance § 143.
Right of policyholder having matured claim to priority over other policyholders in the distribution of assets of insolvent insurance company, 1 A.L.R. 598.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-23 - Attachment, garnishment of assets.

During pendency of delinquency proceedings in this or any reciprocal state no action or proceeding in the nature of an attachment, garnishment or execution shall be commenced or maintained in the courts of this state against the delinquent insurer or its assets. Any lien obtained by any such action or proceeding within four (4) months prior to the commencement of any such delinquency proceeding or at any time thereafter shall be void as against any rights arising in such delinquency proceeding.
History:
Laws 1984, ch. 127, § 715.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-26 - Hazardous financial condition; failure of insurer to comply with requirements.

If an insurer found by the superintendent to be in hazardous financial condition and subjected to certain requirements by the superintendent pursuant to Section 717 [59A-41-25 NMSA 1978] of this article fails to comply with any such requirement, the superintendent may suspend, revoke, or refuse to continue the insurer's certificate of authority, and take such further lawful action as he may deem advisable, including, but not limited to, commencement of delinquency proceedings against the insurer.
History:
Laws 1984, ch. 127, § 718.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
43 Am. Jur. 2d Insurance § 57.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-27 - Deposit of foreign insurer during examination; impoundment of assets.

A. This section shall apply as to any foreign insurer authorized to transact insurance in this state, which as shown by its most recent annual statement filed with the superintendent has thirty-five percent or more of its insurance in force issued on New Mexico risks or that thirty-five percent or more of its required reserves are applicable to New Mexico risks.
B. If during an examination of the insurer by the superintendent or by any other state the superintendent cannot pending completion of the examination determine with certainty that the insurer is financially sound, and in the superintendent's opinion additional protection for New Mexico policyholders should be required, the superintendent may require the insurer to deposit with the state treasurer assets of kinds eligible for investment of funds of a like domestic insurer and in amount equal to the total required reserves of the insurer applicable to its New Mexico risks.
C. If the insurer fails to make the deposit within thirty (30) days after such demand to do so, the superintendent may record in the office of the county clerk of any county in this state in which assets of the insurer may be located a notice to the effect that all assets of the insurer located in such county are impounded by the superintendent, and thereafter all transactions involving such assets, including release of mortgages and transfers of title to real estate, shall be invalid unless approved and consented to in writing on the face of the instrument by the superintendent. The superintendent may thereafter, as a condition precedent to approval of a transaction, require the entire proceeds of the transaction to be deposited with the state treasurer for the further protection of the insurer's policyholders in this state.
History:
Laws 1984, ch. 127, § 719.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-29 - Order of rehabilitation; termination.

A. An order to rehabilitate a domestic insurer shall direct the superintendent and his successors in office forthwith to take possession of the property of such insurer and to conduct the business thereof, and to take such steps toward the removal of the causes and conditions which have made such proceeding necessary as the court shall direct.
B. If at any time the superintendent shall deem that further efforts to rehabilitate the insurer would be futile, he may apply to the court for an order of liquidation.
C. The superintendent or any interested person upon due notice to the superintendent, at any time may apply for an order terminating any rehabilitation proceeding and permitting such insurer to resume possession of its property and the conduct of its business, but no such order shall be granted except when, after a full hearing, the court shall determine that the purposes of the proceeding have been fully accomplished.
D. The superintendent may apply for an order directing him to liquidate the business of a domestic insurer or the United States branch of an alien insurer having trusteed assets in this state, upon any one or more of the grounds specified in Section 720 [59A-41-28 NMSA 1978] of this article regardless of whether or not there has been a prior order directing him to rehabilitate such insurer.
History:
Laws 1984, ch. 127, § 721.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
43 Am. Jur. 2d Insurance § 127.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-30 - Order of liquidation of domestic insurer; rights, liabilities.

A. An order to liquidate the business of a domestic insurer shall direct the superintendent and his successors in office forthwith to take possession of the property of such insurer and to liquidate the business of the same and to deal with the property and business of such insurer in their own names as superintendents or in the name of the insurer as the court before whom such order is returnable may direct, and to give notice to all creditors who may have claims against such insurers to present the same.
B. The superintendent and his successors shall be vested by operations of law with the title to all of the property, contracts and rights of action of such insurer as of the date of the entry of the order so directing them to liquidate. The filing or recording of such order in the office of the clerk of any county shall impart the same notice that a deed, bill of sale or other evidence of title duly filed or recorded by such insurer would have imparted. The rights and liabilities of any such insurer and of its creditors, policyholders, stockholders, members and all other persons interested in its estate shall, unless otherwise directed by the court, be fixed as of the date of the entry of the order directing the liquidation of such insurer in the office of the clerk of the county where such insurer had its principal office for the transaction of business upon the date of the institution of proceedings under this article.
C. An order to liquidate the business of the United Sates [States] branch of an alien insurer having trusteed assets in this state shall be in the same terms as those hereinbefore prescribed, except that only the assets of the business of such United States branch shall be included therein.
D. Where the trustee or trustees of a mortgage series consisting in whole or in part of certified mortgage investments guaranteed by such domestic insurer have distributed all of the trust estate collateral, or have been permitted by court order to abandon all or part of such collateral not distributed, the court, by order, may, upon the consent of the superintendent as liquidator of such domestic insurer, direct that the superintendent, upon being furnished with a list of certificate holders certified to by the trustee or trustees, record subsequent transfers of certificates and charge and collect a reasonable fee therefor, and distribute dividends applicable thereto upon liquidation of insurer assets in his hands, to the record owners of such certificates, and make and deduct from such dividend payments a reasonable charge for such services.
The duty of the superintendent under such order shall terminate upon the termination of the liquidation proceedings of such domestic insurer.
History:
Laws 1984, ch. 127, § 722.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
43 Am. Jur. 2d Insurance §§ 124 to 127.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-31 - Grounds for conservation of assets of foreign insurer.

The superintendent may apply under Chapter 59A, Article 41 NMSA 1978 for an order directing him to conserve the assets within the state of a foreign insurer upon any one or more of the grounds specified in Subsection A, B, C, D, E, F, G, J, K or O of Section 59A-41-28 NMSA 1978 or upon the ground that such foreign insurer has consented to such an order through a majority of its directors, stockholders or members, or has had its property sequestrated in its domiciliary country or state or in any other country or state. The superintendent may apply under Chapter 59A, Article 41 NMSA 1978 for an order directing him to conserve the assets within this state of an alien insurer, other than one which has its trusteed assets in this state, on any one or more of the grounds specified in Subsections A, B, C, D, E, F, G, J, K or O of Section 59A-41-28 NMSA 1978 or upon the ground that such alien insurer has failed or refused to comply, within the time designated by the superintendent, with an order of the superintendent, pursuant to law, to make good an impairment of its trusteed surplus, or that such alien insurer has consented to such an order through a majority of its directors, stockholders or members, or that it has had its property sequestrated in its domiciliary country or elsewhere.
History:
Laws 1984, ch. 127, § 723; 1995, ch. 149, § 17.
ANNOTATIONS
The 1995 amendment,
effective June 16, 1995, in the first and second sentences, substituted "Chapter 59A, Article 41 NMSA 1978" for "this article" and "Subsections A, B, C, D, E, F, G, J, K or O of Section 59A-41-28 NMSA 1978" for "Section 720 of this article, in Paragraphs A, B, C, D, E, F, G, J, or K".
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-32 - Order of conservation or ancillary liquidation of foreign or alien insurer.

An order to conserve the assets of a foreign or alien insurer shall direct the superintendent and his successors in office forthwith to take possession of the property of the insurer within this state and to conserve the same subject to further direction of the court. Whenever a domiciliary receiver is appointed for the insurer in its domiciliary state which is also a reciprocal state as defined in Section 706 [59A-41-14 NMSA 1978] of this article, the court may on the superintendent's application appoint the superintendent an ancillary receiver in this state, subject to the provisions of Section 711 [59A-41-19 NMSA 1978] of this article and other provisions of the Uniform Insurers Liquidation Act [59A-41-17 through 59A-41-23 NMSA] included within this article. Subject to the provisions of the Uniform Insurers Liquidation Act the rights and duties of the superintendent as to the insurer and its assets shall include those exercised by and imposed upon ancillary receivers of foreign corporations under the general corporation laws of this state.
History:
Laws 1984, ch. 127, § 724.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
43 Am. Jur. 2d Insurance § 128.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-33 - Grounds for dissolution of domestic insurer.

The superintendent may apply under this article for an order dissolving the corporate existence of a domestic insurer:
A. upon his application for an order for liquidation, or at any time after such order has been granted; or
B. upon the grounds specified in Section 720 [59A-41-28 NMSA 1978] of this article whether or not an order of liquidation is sought or has been obtained.
History:
Laws 1984, ch. 127, § 725.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
43 Am. Jur. 2d Insurance §§ 124 to 126.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-34 - Commencement of a delinquency proceeding.

A. The superintendent, the attorney general or an insurance department staff attorney representing him, shall commence any proceeding under this article by an application to the district court in the judicial district in which the principal office of the insurer or organization involved is located, for an order directing the superintendent to proceed with delinquency proceedings provided for in this article. Such order with a copy of the petition therein shall be served upon the insurer or organization named in such order, if it be a domestic corporation by delivering to the president or other head of the corporation, secretary or clerk to the corporation, the cashier, the treasurer or any director or managing agent; if it be a foreign or alien corporation by delivering to the president, vice president, treasurer or assistant treasurer, secretary or assistant secretary, or any director of or managing agent, or, if the corporation lacks any of those officers within the state, to the officer performing corresponding functions under another name; if it be a voluntary, unincorporated or a joint stock association, order or society, by delivering to the president, vice president, treasurer, director, trustee or other officer or a member with managerial powers; if it be a reciprocal insurer or Lloyds underwriters, by delivering to the duly designated attorney-in-fact, a true copy of said order and petition and leaving the same with any such person within the state.
B. When it is satisfactorily proved by the verified report of the examiner made to the superintendent or by affidavit of any other person familiar with the facts that the officers, directors, trustees or managing agents or members of the corporation, association, order or society named in such order, upon whom service is required to be made as provided, or if a reciprocal insurer or Lloyds underwriters be named in the order, that the duly designated attorney-in-fact or its officers and managing agents have departed from the state or have kept themselves concealed therein or if such of the persons residing in this state and upon whom service is required to be made as above provided have resigned from their offices within forty (40) days prior to the application for an order under the provisions of this article, or that service cannot be made immediately by the exercise of reasonable diligence, such an order may provide for service thereof in such manner as the court or justice by whom the same is made, shall direct.
C. Failure of any such insurer to appear or plead before the court within five (5) days after proper service of the order and petition shall be deemed a waiver to the right to have a hearing upon the allegation contained in the petition.
History:
Laws 1984, ch. 127, § 726.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
43 Am. Jur. 2d Insurance §§ 127 to 129.
44 C.J.S. Insurance § 163 et seq.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-35 - Change of venue.

At any time after commencement of a proceeding under this article the superintendent may apply to the court for an order changing the venue of the proceedings to any other county of this state when good cause is shown. Upon the filing of such an application for removal, the court shall direct the clerk of the county wherein such proceeding is then pending to transmit all of the papers filed therein with such clerk to the clerk of the county to which such proceeding is removed and the proceeding shall thereafter be conducted in such other county as though it has been commenced in such county.
History:
Laws 1984, ch. 127, § 727.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-36 - Right of guaranty association to participate in delinquency proceeding.

A. A guaranty association referred to in Article 42 [Chapter 59A, Article 42 NMSA 1978] (life and health insurance guaranty fund) or in Article 43 [Chapter 59A, Article 43 NMSA 1978] (property and casualty insurance guaranty fund) of the Insurance Code may be made a party to a delinquency proceeding by the superintendent in commencing the proceeding or by its intervention thereafter. If the superintendent does not make the association a party at the commencement of the proceedings, the superintendent shall give written notice of the commencement of the proceedings to the association.
B. A guaranty association shall not be required to bear any of the costs of such a proceeding other than such expenses for its attorney and expense related to its participation in the proceeding as are directly incurred by it.
C. The association shall have the right at any time during the delinquency proceedings to apply to the court for an appropriate order dismissing it as a party to the proceeding on such terms as the court finds proper.
History:
Laws 1984, ch. 127, § 728.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-37 - Exemption from filing fees.

The superintendent shall not be required to pay any fee to any public officer in this state for filing, recording, issuing a transcript or certificate or authenticating any paper or instrument pertaining to the exercise by the superintendent of any of the powers or duties conferred upon him under this article, whether or not such paper or instrument be executed by the superintendent or his deputies, employees or attorneys of record and whether or not it is connected with the commencement of an action or proceeding by or against the superintendent, or with the subsequent conduct of such an action or proceeding.
History:
Laws 1984, ch. 127, § 729.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-38 - Deposit of monies collected.

The superintendent shall from time to time deposit in one or more state or national banks, savings banks or trust companies the monies collected by him in a proceeding under this article. The superintendent may deposit such monies or any part thereof in a national bank or trust company as a trust fund.
History:
Laws 1984, ch. 127, § 730.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-39 - Borrowing on pledge of assets.

For the purpose of facilitating the rehabilitation, liquidation, conservation or dissolution of an insurer pursuant to this article, the superintendent may, subject to the approval of the court, borrow money and execute, acknowledge and deliver notes or other evidences of indebtedness therefor and secure the repayment of the same by the mortgage, pledge, assignment, transfer in trust or hypothecation of any or all of the property whether real, personal or mixed of such insurer, and the superintendent, subject to the approval of the court, may take any and all other action necessary and proper to consummate any such loans and to provide for the repayment thereof. The superintendent shall be under no obligation personally or in his official capacity as superintendent to repay any loan made pursuant to this section.
History:
Laws 1984, ch. 127, § 731.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
43 Am. Jur. 2d Insurance § 133.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-40 - Sale, disposition of assets and compromise of certain claims.

A. The superintendent may, subject to the approval of the court:
(1) sue or be sued;
(2) sell or otherwise dispose of the real or personal property, or any part thereof, of an insurer against whom a proceeding has been brought under this article; and
(3) sell or compound all doubtful or uncollectible debts or claims owed by or owing to such insurer including claims based upon assessment levied against a member of a mutual or reciprocal insurer.
B. Whenever the amount of any such debt or claim owed by or owing to such insurer does not exceed two hundred dollars ($200), the superintendent may compromise or compound the same upon such terms as he may deem for the best interests of the insurer without obtaining the approval of the court. The superintendent may, subject to the approval of the court, sell or agree to sell, or offer to sell, any assets of such an insurer to such of its creditors who may desire to participate in the purchase thereof, to be paid for, in all or in part, out of dividends payable to such creditors, and, upon the application of the superintendent, the court may designate representatives to act for such creditors in the purchase, holding and/or management of such assets, and the superintendent may, subject to the approval of the court, advance the expenses of such representatives against the security of the claims of such creditors.
History:
Laws 1984, ch. 127, § 732.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
43 Am. Jur. 2d Insurance § 134.
44 C.J.S. Insurance § 200 et seq.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-41 - Time to file claims.

A. If upon entry of an order of liquidation of a domestic insurer or United States branch of an alien insurer domiciled in this state under Chapter 59A, Article 41 NMSA 1978 or at any time thereafter during liquidation proceedings the insurer is not clearly solvent, the court shall, upon a hearing after such notice as it deems proper, make and enter an order adjudging the insurer to be insolvent.
B. After entry of order of insolvency and regardless of any prior notice given to creditors, the superintendent shall notify all persons who may have claims against the insurer to file such claims, at a place and within the time specified in the notice, or that such claims may be forever barred. The time specified in the notice shall be fixed by the court for filing of claims, which shall be not less than six months after entry of the order of insolvency. The notice shall be given in such manner and for such reasonable period of time as the court may order.
C. The liquidator may permit a claimant making a late filing to share in distributions, whether past or future, as if he were not late, to the extent that any such payment will not prejudice the orderly administration of the liquidation, under the following circumstances:
(1) the existence of the claim was not known to the claimant and the claim was filed as promptly thereafter as reasonably possible after learning of it;
(2) a transfer to a creditor was avoided under Sections 59A-41-42 through 59A-41-43.1 NMSA 1978, or was voluntarily surrendered under Section 59A-41-43.3 NMSA 1978 and the filing satisfies the conditions of Section 59A-41-43.3 NMSA 1978;
(3) the valuation of security held by a secured creditor shows a deficiency, which is filed within thirty days after the valuation and deficiency is determined by the court in accordance with the provisions of Subsection D of Section 59A-41-22 NMSA 1978; or
(4) the claim is from a guaranty association for reimbursement of covered claims paid or expenses incurred subsequent to the last day for filing where such payments were made and expenses incurred as provided by law.
History:
Laws 1984, ch. 127, § 733; 1993, ch. 320, § 92.
ANNOTATIONS
The 1993 amendment,
effective June 18, 1993, substituted "Chapter 59A, Article 37 NMSA 1978" for "this article" in Subsection A; in Subsection B, substituted "claims may be forever barred" for "claims shall be forever barred" in the first sentence and made a stylistic change in the second sentence; and added Subsection C.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-42 - Fraudulent transfers prior to petition.

A. Every transfer made or suffered and every obligation incurred by an insurer within one (1) year prior to the filing of a successful petition for rehabilitation or liquidation under the Insurance Code is fraudulent as to then existing and future creditors if made or incurred without fair consideration, or with actual intent to hinder, delay, or defraud either existing or future creditors. A transfer made or an obligation incurred by an insurer ordered to be rehabilitated or liquidated under the Insurance Code, which is fraudulent under this section, may be avoided by the receiver, except as to a person who in good faith is a purchaser, lienor, or obligee for a present fair equivalent value, and except that any purchaser, lienor, or obligee, who in good faith has given a consideration less than fair for such transfer, lien, or obligation, may retain the property, lien or obligation as security for repayment. The court may, on due notice, order any such transfer or obligation to be preserved for the benefit of the estate, and in that event, the receiver shall succeed to and may enforce the rights of the purchaser, lienor, or obligee.
B. (1) A transfer of property other than real property shall be deemed to be made or suffered when it becomes so far perfected that no subsequent lien obtainable by legal or equitable proceedings on a simple contract could become superior to the rights of the transferee.
(2) A transfer of real property shall be deemed to be made or suffered when it becomes so far perfected that no subsequent bona fide purchaser from the insurer could obtain rights superior to the rights of the transferee.
(3) A transfer which creates an equitable lien shall not be deemed to be perfected if there are available means by which a legal lien could be created.
(4) Any transfer not perfected prior to the filing of a petition for liquidation shall be deemed to be made immediately before the filing of the successful petition.
(5) The provisions of this subsection apply whether or not there are or were creditors who might have obtained any liens or persons who might have become bona fide purchasers.
C. Any transaction of the insurer with a reinsurer shall be deemed fraudulent and may be avoided by the receiver under Subsection A if:
(1) the transaction consists of the termination, adjustment, or settlement of a reinsurance contract in which the reinsurer is released from any part of its duty to pay the originally specified share of losses that had occurred prior to the time of the transaction, unless the reinsurer gives a present fair equivalent value for the release; and
(2) any part of the transaction took place within one year prior to the date of filing of the petition through which the receivership was commenced.
History:
Laws 1984, ch. 127, § 734.
ANNOTATIONS
Cross references.
— For the Insurance Code,
see
59A-1-1 NMSA 1978 and notes thereto.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-43 - Fraudulent transfer after petition.

A. After a petition for rehabilitation or liquidation has been filed a transfer of any of the real property of the insurer made to a person acting in good faith shall be valid against the receiver if made for a present fair equivalent value, or, if not made for a present fair equivalent value, then to the extent of the present consideration actually paid therefor, for which amount the transferee shall have a lien on the property so transferred. The commencement of a proceeding in rehabilitation or liquidation shall be constructive notice upon the recording of a copy of the petition for or order of rehabilitation or liquidation with the recorder of deeds in the county where any real property in question is located. The exercise by a court of the United States or any state or jurisdiction to authorize or effect a judicial sale of real property of the insurer within any county in any state shall not be impaired by the pendency of such a proceeding unless the copy is recorded in the county prior to the consummation of the judicial sale.
B. After a petition for rehabilitation or liquidation has been filed and before either the receiver takes possession of the property of the insurer or an order of rehabilitation or liquidation is granted:
(1) a transfer of any of the property of the insurer, other than real property, made to a person acting in good faith shall be valid against the receiver if made for a present fair equivalent value, or, if not made for a present fair equivalent value, then to the extent of the present consideration actually paid therefor, for which amount the transferee shall have a lien on the property so transferred;
(2) a person indebted to the insurer or holding property of the insurer may, if acting in good faith, pay the indebtedness or deliver the property, or any part thereof, to the insurer or upon his order, with the same effect as if the petition were not pending;
(3) a person having actual knowledge of the pending rehabilitation or liquidation shall be deemed not to act in good faith; and
(4) a person asserting the validity of a transfer under this section shall have the burden of proof. Except as elsewhere provided in this section, no transfer by or on behalf of the insurer after the date of the petition for liquidation by any person other than the liquidator shall be valid against the liquidator.
C. Nothing in Chapter 59A, Article 41 NMSA 1978 shall impair the negotiability of currency or negotiable instruments.
D. Nothing in this section shall be constructed to give authority to any person to act on behalf of a receiver.
History:
Laws 1984, ch. 127, § 735; 1993, ch. 320, § 93.
ANNOTATIONS
The 1993 amendment,
effective June 18, 1993, substituted "shall have a lien" for "shall gave a lien" in the first sentence of Subsection A; substituted "Chapter 59A, Article 41 NMSA 1978" for "this article" in Subsection C; and added Subsection D.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-43.2 - Liability for participation in fraudulent transfer or voidable preference.

A. Every officer, manager, employee, shareholder, member, subscriber, attorney or any other person acting on behalf of the insurer who knowingly participates in giving any preference or in any fraudulent transfer when he has reasonable cause to believe the insurer is or is about to become insolvent at the time of the preference or transfer shall be personally liable to the rehabilitator or liquidator for the amount of the preference or transfer. It shall be a rebuttable presumption that such was the case if the transfer was made within four months before the date of filing of a successful petition for rehabilitation or liquidation.
B. Every person receiving any property from the insurer or the benefit thereof as a voidable preference or as a fraudulent transfer shall be personally liable therefor and shall be bound to account to the rehabilitator or liquidator.
C. Nothing in this section shall prejudice any other claim by the rehabilitator or liquidator against any person.
History:
1978 Comp., § 59A-41-43.2, enacted by Laws 1993, ch. 320, § 95.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-43.3 - Claims of holders of void or voidable rights.

A. No claims of a creditor who has received or acquired a preference, lien, conveyance, transfer, assignment or encumbrance voidable under Chapter 59A, Article 41 NMSA 1978 shall be allowed unless he surrenders the preference, lien, conveyance, transfer, assignment or encumbrance. If the avoidance is effected by a proceeding in which a final judgment has been entered, the claim shall not be allowed unless the money is paid or the property is delivered to the rehabilitator or liquidator within thirty days from the date of the entering of the final judgment, except that the court having jurisdiction over the rehabilitation or liquidation may allow further time if there is an appeal or other continuation of the proceeding.
B. A claim allowable under Subsection A of this section by reason of the avoidance, whether voluntary or involuntary, or a preference, lien, conveyance, transfer, assignment or encumbrance may be filed as an excused late filing under Section 59A-41-41 NMSA 1978 if filed within thirty days from the date of the avoidance, or within the further time allowed by the court under Subsection A of this section.
History:
1978 Comp., § 59A-41-43.3, enacted by Laws 1993, ch. 320, § 96.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-45 - Offsets.

A. In all cases of mutual debts or mutual credits between the insurer and another person in connection with any action or proceeding under this article, such credits and debts shall be set off and the balance only shall be allowed or paid, except as provided in Subsection B of this section.
B. No offset shall be allowed in favor of any such person where:
(1) the obligation of the insurer to such person would not at the date of entry of any liquidation order, or otherwise, as provided in Section 722 [59A-41-30 NMSA 1978] of this article entitle him to share as a claimant in the assets of the insurer; or
(2) the obligation of the insurer to such person was purchased by or transferred to such person with a view to its being used as an offset;
(3) the obligation of such person is to pay an assessment levied against the members of a mutual insurer, or against the subscribers of a reciprocal insurer, or is to pay a balance upon a subscription to the capital stock of a stock insurer; or
(4) the obligation of the person is to pay premiums, whether earned or unearned, to the insurer.
History:
Laws 1984, ch. 127, § 737.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-45.1 - Recovery from affiliates.

The receiver shall have a right to recover from an affiliate of the insurer property of the insurer transferred to or for the benefit of the affiliate within the five years preceding the initial petition for receivership. No transfer is recoverable under this section if the affiliate shows that, when the transfer was made:
A. the insurer was solvent;
B. the transfer was lawful; and
C. neither the insurer nor the affiliate knew or should have known that the transfer, under then-applicable statutory accounting standards, would:
(1) place the insurer in violation of applicable capital or surplus requirements;
(2) place the insurer below the risk-based capital level as defined in the Risk-Based Capital Act [Chapter 59A, Article 5A NMSA 1978];
(3) cause the insurer's filed financial statements not to present fairly the capital and surplus of the insurer; or
(4) otherwise cause the insurer to be in a hazardous financial condition.
History:
Laws 2012, ch. 9, § 3.
ANNOTATIONS
Effective dates.
— Laws 2012, ch. 9, § 23 made Laws 2012, ch. 9, § 3 effective July 1, 2012.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-46 - Report for assessment; domestic mutual, reciprocal insurers.

Within three (3) years from the date an order of rehabilitation or liquidation of a domestic mutual insurer or domestic reciprocal insurer was filed in the office of the clerk of the court by which such order was made, the superintendent may make a report to the court setting forth:
A. the reasonable value of the assets of the insurer;
B. the insurer's probable liabilities; and
C. the probable necessary assessment, if any, to pay all claims and expenses in full, including expenses of administration.
History:
Laws 1984, ch. 127, § 738.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-47 - Levy of assessment; domestic mutual, reciprocal insurers.

A. Upon the basis of the report provided for in Section 738 [59A-41-46 NMSA 1978] of this article including any amendments thereof, the court, ex parte, may levy one or more assessments against all persons who, as shown by the record of the insurer, were members (if a mutual insurer) or subscribers (if a reciprocal insurer) at any time within one year prior to the date of issuance of the court's order under Section 725 [59A-41-33 NMSA 1978] of this article.
B. Such assessment shall cover the excess of the probable liabilities over the reasonable value of the assets, together with the estimated cost of collection and percentage of incollectibility thereof. The total of all assessments against any member or subscriber with respect to any policy, whether levied pursuant to this article or pursuant to any other provisions of the laws of New Mexico, shall be for no greater amount than specified in the policy or policies of the member or subscriber and as limited under the laws of New Mexico; except that if the court finds that the policy was issued at a rate of premium below the minimum rate lawfully permitted for the risk insured, the court may determine the upper limit of such assessment upon the basis of such minimum rate.
C. No assessment shall be levied against any member or subscriber with respect to any nonassessable policy issued in accordance with the Insurance Code.
D. Where the insurer has levied an assessment prior to the court's order under the proceeding in Section 725 of this article and the superintendent has ratified such assessment with the court's approval such ratification shall in no way be deemed an assessment as set out in Subsections A, B and C of this section.
History:
Laws 1984, ch. 127, § 739.
ANNOTATIONS
Cross references.
— For the Insurance Code,
see
59A-1-1 NMSA 1978 and notes thereto.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
43 Am. Jur. 2d Insurance §§ 597, 598, 600.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-48 - Order for payment of assessment; domestic mutual, reciprocal insurers.

After levy of assessment as provided in Section 739 [59A-41-47 NMSA 1978] of this article, upon the filing of a further detailed report by the superintendent, the court shall issue an order directing each member (if a mutual insurer) or each subscriber (if a reciprocal insurer) if he shall not pay the amount assessed against him to the superintendent on or before the day to be specified in the order, to show cause why he should not be held liable to pay such assessment together with costs as set out in Section 742 [59A-41-50 NMSA 1978] of this article and why the superintendent should not have judgment therefor.
History:
Laws 1984, ch. 127, § 740.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-49 - Assessment order, publication and transmittal.

The superintendent shall cause a notice of an assessment order, issued pursuant to Section 740 [59A-41-48 NMSA 1978] of this article, setting forth a brief summary of the contents of such order to be:
A. published in such manner as shall be directed by the court; and
B. enclosed in a sealed envelope, addressed and mailed postage prepaid to each member or subscriber liable thereunder at his address last of record with the insurer, at least twenty (20) days before the return day of the order to show cause provided for in Section 740 of this article.
History:
Laws 1984, ch. 127, § 741.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-50 - Judgment upon the assessment.

A. On the return day of the order to show cause provided for in Section 740 [59A-41-48 NMSA 1978] of this article if the member or subscriber does not appear and serve verified objections upon the superintendent, the court shall make an order adjudging that such member or subscriber is liable for the amount of the assessment against him together with ten dollars ($10) costs, and that the superintendent may have judgment against the member or subscriber therefor.
B. If on such return day the member or subscriber shall appear and serve verified objections upon the superintendent there shall be a full hearing before the court or a referee to hear and determine, who, after such hearing, shall make an order either negating or affirming his liability to pay the whole or some part thereof together with twenty-five dollars ($25) costs and the necessary disbursements incurred at such hearing, and directing that the superintendent in the latter case may have judgment therefor.
C. A judgment upon any such order shall have the same force and effect, and may be entered and docketed, and may be appealed from as if it were a judgment in an original action brought in the court in which the proceeding is pending.
History:
Laws 1984, ch. 127, § 742.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
43 Am. Jur. 2d Insurance §§ 607 to 611.
44 C.J.S. Insurance § 180 et seq.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-51 - Summary proceedings; superintendent's corrective orders authorized.

A. If the superintendent determines after a hearing that any insurer has committed or engaged in, or is committing or engaging in, or is about to commit or engage in any act, practice or transaction that would subject it to formal delinquency proceedings under this article, he shall make and serve upon the insurer and other persons involved, such orders (other than seizure orders under Sections 746 and 747 [59A-41-54 and 59A-41-55 NMSA 1978] of this article) as he deems reasonably necessary to correct, eliminate, or remedy such conduct, condition or ground. Orders to cure impairment of capital or surplus are subject to Section 92 [59A-5-25 NMSA 1978] of the Insurance Code.
B. If the superintendent believes that irreparable harm to the insurer or its policyholders, creditors or the public may occur unless his order is issued with immediate effect, he may make and serve his order without notice and before hearing, and shall simultaneously therewith serve upon the insurer and other persons involved a notice of hearing.
C. The superintendent's order and notice of hearing shall be served by personal service in any manner provided by the New Mexico Rules of Civil Procedure.
D. This section, and Sections 744 through 749 [59A-41-52 to 59A-41-57 NMSA 1978] of this article, are supplemental to and not in contradiction or modification of Sections 716 through 718 [59A-41-24 to 59A-41-26 NMSA 1978] or any other sections of this article as to insurers in hazardous financial condition.
History:
Laws 1984, ch. 127, § 743.
ANNOTATIONS
Cross references.
— For Rules of Civil Procedure,
see
Rule 1-001 NMRA et seq.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-52 - Summary proceedings; appeal from superintendent's order.

If the superintendent has issued a summary order before hearing as provided in Subsection B of Section 743 [59A-41-51 NMSA 1978] of this article, any person upon whom such order is served may waive the superintendent's hearing and apply for an immediate judicial relief available under law and without first exhausting his administrative remedies.
History:
Laws 1984, ch. 127, § 744.
2023 New Mexico Statutes › Chapter 59A - Insurance Code › Article 41 - Conservation, Rehabilitation and Liquidation › Section 59A-41-53 - Summary proceedings; enforcement; penalty.

A. The superintendent may apply for and the district court for Santa Fe county or the county in which the insurer has its principal office may grant such restraining orders, temporary and permanent injunctions and other orders as may be deemed necessary to enforce the superintendent's order.
B. Violation of any order of the superintendent issued under Section 59A-41-51 NMSA 1978 by any person as to whom the order is in effect shall subject such person to a penalty of not more than ten thousand dollars ($10,000), to be collected in a civil action brought by the attorney general in the name of the state of New Mexico. The attorney general shall deposit all funds so collected with the state treasurer for credit as provided for insurance department receipts in general under Section 59A-6-5 NMSA 1978.
History:
Laws 1984, ch. 127, § 745; 1987, ch. 259, § 25.