2023 New Mexico Statutes › Chapter 55 - Uniform Commercial Code › Article 9 - Secured Transactions › Part 6 - DEFAULT › Subpart 1 - DEFAULT AND ENFORCEMENT OFSECURITY INTEREST › Section 55-9-609 - Secured party's right to take possession after default.

(a) After default, a secured party:
(1) may take possession of the collateral; and
(2) without removal, may render equipment unusable and dispose of collateral on a debtor's premises under Section 55-9-610 NMSA 1978.
(b) A secured party may proceed under Subsection (a) of this section:
(1) pursuant to judicial process; or
(2) without judicial process, if it proceeds without breach of the peace.
(c) If so agreed, and in any event after default, a secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties.
History:
1978 Comp., § 55-9-609, enacted by Laws 2001, ch. 139, § 106.
OFFICIAL COMMENTS
UCC Official Comments by ALI & the NCCUSL. Reproduced with permission of the PEB for the UCC. All rights reserved.
1. Source. Former section 9-503.
2. Secured Party's Right to Possession. This section follows former section 9-503 and earlier uniform legislation. It provides that the secured party is entitled to take possession of collateral after default.
3. Judicial Process; Breach of Peace. Subsection (b) permits a secured party to proceed under this section without judicial process if it does so "without breach of the peace." Although former section 9-503 placed the same condition on a secured party's right to take possession of collateral, subsection (b) extends the condition to the right provided in subsection (a)(2) as well. Like former section 9-503, this section does not define or explain the conduct that will constitute a breach of the peace, leaving that matter for continuing development by the courts. In considering whether a secured party has engaged in a breach of the peace, however, courts should hold the secured party responsible for the actions of others taken on the secured party's behalf, including independent contractors engaged by the secured party to take possession of collateral.
This section does not authorize a secured party who repossesses without judicial process to utilize the assistance of a law enforcement officer. A number of cases have held that a repossessing secured party's use of a law enforcement officer without benefit of judicial process constituted a failure to comply with former section 9-503.
4. Damages for Breach of Peace. Concerning damages that may be recovered based on a secured party's breach of the peace in connection with taking possession of collateral,
see
section 9-625, comment 3.
5. Multiple Secured Parties. More than one secured party may be entitled to take possession of collateral under this section. Conflicting rights to possession among secured parties are resolved by the priority rules of this article. Thus, a senior secured party is entitled to possession as against a junior claimant. Non-UCC law governs whether a junior secured party in possession of collateral is liable to the senior in conversion. Normally, a junior who refuses to relinquish possession of collateral upon the demand of a secured party having a superior possessory right to the collateral would be liable in conversion.
6. Secured Party's Right to Disable and Dispose of Equipment on Debtor's Premises. In the case of some collateral, such as heavy equipment, the physical removal from the debtor's plant and the storage of the collateral pending disposition may be impractical or unduly expensive. This section follows former section 9-503 by providing that, in lieu of removal, the secured party may render equipment unusable or may dispose of collateral on the debtor's premises. Unlike former section 9-503, however, this section explicitly conditions these rights on the debtor's default. Of course, this section does not validate unreasonable action by a secured party. Under section 9-610, all aspects of a disposition must be commercially reasonable.
7. Debtor's Agreement to Assemble Collateral. This section follows former section 9-503 also by validating a debtor's agreement to assemble collateral and make it available to a secured party at a place that the secured party designates. Similar to the treatment of agreements to permit collection prior to default under section 9-607 and former section 9-502, however, this section validates these agreements whether or not they are conditioned on the debtor's default. For example, a debtor might agree to make available to a secured party, from time to time, any instruments or negotiable documents that the debtor receives on account of collateral. A court should not infer from this section's validation that a debtor's agreement to assemble and make available collateral would not be enforceable under other applicable law.
8. Agreed Standards. Subject to the limitation imposed by section 9-603(b), this section's provisions concerning agreements to assemble and make available collateral and a secured party's right to disable equipment and dispose of collateral on a debtor's premises are likely topics for agreement on standards as contemplated by section 9-603.
ANNOTATIONS
Effective dates.
— Laws 2001, ch. 139, § 155 makes the act effective July 1, 2001.
Decisions under former Section 55-9-503 NMSA 1978.
— In light of the similarity of this section and former Section 55-9-503 NMSA 1978, annotations decided under former Section 55-9-503 NMSA 1978 have been included in the annotations in this section.
Secured party may recover possession of chattel by replevin
from judicial officer who has properly taken possession thereof under execution.
State v. Weber
, 1966-NMSC-164, 76 N.M. 636, 417 P.2d 444 (decided under former law).
Debtor has no conversion claim if did not redeem.
— A debtor who could have regained his right to possession by redemption, but did not redeem, has no claim in conversion, as conversion only protects the rights of one entitled to lawful possession.
Cordova v. Lee Galles Oldsmobile, Inc.
, 1983-NMCA-088, 100 N.M. 204, 668 P.2d 320 (decided under former law).
Law enforcement officer accompanying repossessor.
— Any time a law enforcement officer accompanies a repossessor and makes his official presence known to the defaulting party at or near the attempted self-help repossession, that officer has transgressed the line of benign attendance. Hence, repossession of a truck on an air force base became wrongful as a matter of law, where the repossessor was accompanied by an armed military security police sergeant who informed the debtor that "we have to take the truck" or words to that effect.
Waisner v. Jones
, 1988-NMSC-049, 107 N.M. 260, 755 P.2d 598 (decided under former law).
Action by Indian for violation of tribal law in repossessing pickup truck.
Tempest Recovery Servs. v. Belone
, 2003-NMSC-019, 134 N.M. 133, 74 P.3d 67.
Law reviews.
— For article, "Breach of the Peace and New Mexico's Uniform Commercial Code," see 4 Nat. Resources J. 85 (1964).
For note, "Self-Help Repossession Under the Uniform Commercial Code: The Constitutionality of Article 9, Section 503," see 4 N.M. L. Rev. 75 (1973).
For article, "Problems in the Application of Full Faith and Credit for Indian Tribes," see 7 N.M. L. Rev. 133 (1977).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
64A Am. Jur. 2d Secured Transactions § 590 et seq.
Retaking of property conditionally sold as affecting action previously commenced for purchase price, 23 A.L.R. 1462.
Breaking and entering for purpose of retaking possession upon default of purchaser, 36 A.L.R. 853.
Validity of provision for collection of unpaid purchase money after retaking the property in the contract, 43 A.L.R. 1243.
Demand for payment or for possession as condition of seller's right to retake possession or otherwise enforce forfeiture under conditional sale, 59 A.L.R. 134.
What constitutes retaking property, 99 A.L.R. 1297.
Action for price as waiver by conditional vendor of right to reclaim property, 113 A.L.R. 653.
Repossession of property as within statute imposing tax on retail sales, 139 A.L.R. 410.
Right of conditional seller to retake property without legal process, 146 A.L.R. 1331.
What amounts to buyer's waiver of seller's duty to give notice before repossession, 174 A.L.R. 1363.
Rights and remedies as between parties to conditional sale after seller has repossessed himself of the property, 49 A.L.R.2d 15.
Relative rights as between assignee of conditional seller and a subsequent buyer from the conditional seller after repossession or the like, 72 A.L.R.2d 342.
Maintenance of replevin or similar possessory remedy by cotenant, or security transaction creditor thereof, against other cotenants, 93 A.L.R.2d 358.
What conduct by repossessing chattel mortgagee or conditional vendor entails tort liability, 99 A.L.R.2d 358.
Punitive damages for wrongful seizure of chattel by one claiming security interest, 35 A.L.R.3d 1016.
Repossession by secured seller as affecting his right to recover on a note or other obligation given as a down payment, 49 A.L.R.3d 364.
Secured transactions: Right of secured party to take possession of collateral on default under UCC § 9-503, 25 A.L.R.5th 696.