2023 New Mexico Statutes › Chapter 57 - Trade Practices and Regulations › Article 12 - Unfair Trade Practices › Section 57-12-2 - Definitions.

As used in the Unfair Practices Act:
A. "person" means, where applicable, natural persons, corporations, trusts, partnerships, associations, cooperative associations, clubs, companies, firms, joint ventures or syndicates;
B. "seller-initiated telephone sale" means a sale, lease or rental of goods or services in which the seller or the seller's representative solicits the sale by telephoning the prospective purchaser and in which the sale is consummated entirely by telephone or mail, but does not include a transaction:
(1) in which a person solicits a sale from a prospective purchaser who has previously made an authorized purchase from the seller's business; or
(2) in which the purchaser is accorded the right of rescission by the provisions of the federal Consumer Credit Protection Act, 15 U.S.C. 1635, or regulations issued pursuant thereto;
C. "trade" or "commerce" includes the advertising, offering for sale or distribution of any services and any property and any other article, commodity or thing of value, including any trade or commerce directly or indirectly affecting the people of this state;
D. "unfair or deceptive trade practice" means an act specifically declared unlawful pursuant to the Unfair Practices Act, a false or misleading oral or written statement, visual description or other representation of any kind knowingly made in connection with the sale, lease, rental or loan of goods or services or in the extension of credit or in the collection of debts by a person in the regular course of the person's trade or commerce, that may, tends to or does deceive or mislead any person and includes:
(1) representing goods or services as those of another when the goods or services are not the goods or services of another;
(2) causing confusion or misunderstanding as to the source, sponsorship, approval or certification of goods or services;
(3) causing confusion or misunderstanding as to affiliation, connection or association with or certification by another;
(4) using deceptive representations or designations of geographic origin in connection with goods or services;
(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that the person does not have;
(6) representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand;
(7) representing that goods or services are of a particular standard, quality or grade or that goods are of a particular style or model if they are of another;
(8) disparaging the goods, services or business of another by false or misleading representations;
(9) offering goods or services with intent not to supply them in the quantity requested by the prospective buyer to the extent of the stock available, unless the purchaser is purchasing for resale;
(10) offering goods or services with intent not to supply reasonable expectable public demand;
(11) making false or misleading statements of fact concerning the price of goods or services, the prices of competitors or one's own price at a past or future time or the reasons for, existence of or amounts of price reduction;
(12) making false or misleading statements of fact for the purpose of obtaining appointments for the demonstration, exhibition or other sales presentation of goods or services;
(13) packaging goods for sale in a container that bears a trademark or trade name identified with goods formerly packaged in the container, without authorization, unless the container is labeled or marked to disclaim a connection between the contents and the trademark or trade name;
(14) using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if doing so deceives or tends to deceive;
(15) stating that a transaction involves rights, remedies or obligations that it does not involve;
(16) stating that services, replacements or repairs are needed if they are not needed;
(17) failing to deliver the quality or quantity of goods or services contracted for;
(18) violating the Tobacco Escrow Fund Act [6-4-14 to 6-4-24 NMSA 1978]; or
(19) offering or providing unposted or unadvertised pricing or service based on the buyer's gender or perceived gender identity; provided, however, that this provision does not apply to persons regulated by the office of superintendent of insurance pursuant to the New Mexico Insurance Code [Chapter 59A, except for Articles 30A and 42A NMSA 1978]; and
E. "unconscionable trade practice" means an act or practice in connection with the sale, lease, rental or loan, or in connection with the offering for sale, lease, rental or loan, of any goods or services, including services provided by licensed professionals, or in the extension of credit or in the collection of debts that to a person's detriment:
(1) takes advantage of the lack of knowledge, ability, experience or capacity of a person to a grossly unfair degree; or
(2) results in a gross disparity between the value received by a person and the price paid.
History:
1953 Comp., § 49-15-2, enacted by Laws 1967, ch. 268, § 2; 1969, ch. 208, § 1; 1971, ch. 240, § 1; 1987, ch. 187, § 1; 1989, ch. 309, § 1; 1995, ch. 18, § 2; 1999, ch. 171, § 1; 2003, ch. 167, § 9; 2009, ch. 197, § 25; 2019, ch. 214, § 1.
ANNOTATIONS
The 2019 amendment,
effective June 14, 2019, revised the definition of "unfair or deceptive trade practice" as used in the Unfair Practices Act, prohibited differential pricing or service based on the buyer's gender or perceived gender identity, and provided an exception; and added Paragraph D(19).
The 2009 amendment,
effective July 1, 2009, added Paragraph (18) of Subsection D.
The 2003 amendment,
effective July 1, 2003, substituted "means" for "includes" near the beginning of Subsection A; inserted "federal" preceding "Consumer Credit Protection" in Paragraph B(2); in Subsection D, substituted "an act specifically declared unlawful pursuant to the Unfair Practices Act, a" for "any" preceding "false or misleading" and deleted "but is not limited to" at the end.
The 1999 amendment,
effective June 18, 1999, inserted "including services provided by licensed professionals" in Subsection E.
The 1995 amendment,
effective June 16, 1995, added "unless the purchaser is purchasing for resale" at the end of Subsection D(9).
The 1989 amendment,
effective June 16, 1989, added Subsection B and redesignated Subsections B through D as Subsections C through E.
The 1987 amendment,
effective June 19, 1987, added "but is not limited to" at the end of the introductory paragraph of Subsection C and made minor stylistic changes throughout the section.
Compiler's notes.
— This section is similar to §§ 1 and 2 of the Uniform Deceptive Trade Practices Act.
Pleading.
— Section 57-12-2D NMSA 1978 does not set forth separate claims but rather sets forth a non-exhaustive list of conduct which might, independently, constitute a violation of the NMUPA.
Guidance Endodontics LLC v. Dentsply Int'l, Inc.
, 728 F.Supp.2d 1170 (D.N.M. 2010).
The New Mexico lottery is not a person under the Unfair Practices Act, 57-12-1 NMSA 1978.
Stansell v. N.M. Lottery
, 2009-NMCA-062, 146 N.M. 417, 211 P.3d 214.
A viable Unfair Practices Act claim
need not allege a direct representation by the defendant to the claimant or to the public, a commercial transaction between the claimant and the defendant, or detrimental reliance by the claimant on a deceptive statement by the defendant.
Lohman v. Daimler-Chrysler Corp.
, 2007-NMCA-100, 142 N.M. 437, 166 P.3d 1091, cert. denied, 2007-NMCERT-005, 141 N.M. 762, 161 P.3d 259.
Plaintiff did not prove a viable claim.
— Where plaintiff asked defendant, who was an art appraiser, to determine whether the art owned by an estate was valuable; before viewing the art and after defendant explained the purpose of an appraisal and the fees associated with the process, it was apparent that plaintiff did not want to hire defendant to appraise the art, but wanted to dispose of the art; defendant purchased two paintings from plaintiff for $4,500, and later sold the paintings for $35,000 to an art dealer; the paintings were later sold to an art collector who sold the paintings at auction for $600,000; and plaintiff sued defendant for violation of the Unfair Practices Act, plaintiff did not prove a viable claim under the Unfair Practices Act because an essential element of a claim under the Unfair Practices Act that gives standing to a buyer is that a buyer purchase goods or services from a seller and plaintiff never acquired any goods or services from defendant.
Hicks v. Eller
, 2012-NMCA-061, 280 P.3d 304, cert. denied, 2012-NMCERT-005.
Standing.
— The Unfair Practices Act provides standing only to buyers of goods and services.
Santa Fe Custom Shutters & Doors, Inc. v. Home Depot USA, Inc.
, 2005-NMCA-051, 137 N.M. 524, 113 P.3d 347, cert. denied, 2005-NMCERT-005, 137 N.M. 522, 113 P.3d 345.
Violation of act not shown.
— Defendant's Home Depot's activities in marketing plaintiff's shutters and installation services to defendant's own customers was not a sale of marketing services to plaintiff for purposes of Subsection D of this section.
Santa Fe Custom Shutters & Doors, Inc. v. Home Depot USA, Inc.
, 2005-NMCA-051, 137 N.M. 524, 113 P.3d 347, cert. denied, 2005-NMCERT-005, 137 N.M. 522, 113 P.3d 345.
A business has standing under the Unfair Practices Act to sue a competitor for misrepresentation.
— A business has standing under the New Mexico Unfair Practices Act to sue a competitor for misrepresentations that damage the business by misleading or confusing the consuming public when the unfair practice occurs in connection with the sale of goods or services.
First Nat'l Bancorp Inc. v. Alley
, 76 F.Supp.3d 1261 (D.N.M. 2014).
Where it was alleged that defendants, an investment services firm, confused and misled former and potential customers of plaintiff, a competitor investment firm, by using a name confusingly similar to plaintiff's name, by creating a website that was confusingly similar to plaintiff's website, and by making misleading statements to plaintiff's existing or potential customers, denial of defendants' motion to dismiss was appropriate because plaintiff was likely to be damaged and may have suffered monetary losses due to defendants' misrepresentations.
First Nat'l Bancorp Inc. v. Alley
, 76 F.Supp.3d 1261 (D.N.M. 2014).
Knowing and willful use of ambiguity as to material fact constituted an unfair or deceptive trade practice.
— In a class action lawsuit, where individuals who purchased a Black & Decker coffeemaker at a New Mexico Wal-Mart store from 2009 to 2013 claimed that a trademark licensing agreement, whereby Applica Consumer Products, Inc. (Applica) paid royalties to Black & Decker in exchange for Applica's ability to use the Black & Decker name and trademarks in the sale of small kitchen appliances, including the coffeemaker at issue, but where there was no corporate affiliation between Black & Decker and Applica, and Black & Decker did not design, manufacture, distribute, or warrant the coffeemaker, was an unfair or deceptive trade practice, and where defendants argued that under the federal Lanham Act, the ultimate source or manufacturer of a product need not be identified by a brand name as long as the trademark owner exercises sufficient oversight over the nature and quality of the goods sold under its licensed mark and that if the Lanham Act allowed Applica to market the coffeemaker, the arrangement could not constitute a violation of the Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -26, the district court did not err in concluding that Applica's use of the Black & Decker trademark on the coffeemaker constituted an unfair or deceptive trade practice, because the New Mexico legislature did not intend to require courts to apply Lanham Act precedent in deciding UPA claims, and the Black & Decker name on the product packaging would tend to deceive a reasonable consumer, and defendants should have known that potential purchasers of the coffeemaker would likely regard information about the coffeemaker being a Black & Decker product as material.
Puma v. W-Mart Stores East
, 2023-NMCA-005, cert. granted.
The district court did not abuse its discretion in refusing to order disgorgement of unjust gains for defendants' unfair trade practices.
— In a class action lawsuit, where individuals who purchased a Black & Decker coffeemaker at a New Mexico Wal-Mart store from 2009 to 2013 claimed that a trademark licensing agreement, whereby Applica Consumer Products, Inc. (Applica) paid royalties to Black & Decker in exchange for Applica's ability to use the Black & Decker name and trademarks in the sale of small kitchen appliances, including the coffeemaker at issue, but where there was no corporate affiliation between Black & Decker and Applica, and Black & Decker did not design, manufacture, distribute, or warrant the coffeemaker, was an unfair or deceptive trade practice, and where defendants argued that under the federal Lanham Act, the ultimate source or manufacturer of a product need not be identified by a brand name as long as the trademark owner exercises sufficient oversight over the nature and quality of the goods sold under its licensed mark and that if the Lanham Act allowed Applica to market the coffeemaker, the arrangement could not constitute a violation of the Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -26, and where the district court concluded that Applica's use of the Black & Decker trademark on the coffeemaker constituted an unfair or deceptive trade practice, the district court did not abuse its discretion in refusing to order disgorgement of unjust gains for defendants' unfair trade practices, because Plaintiffs failed to meet their burden of producing evidence permitting at least a reasonable approximation of the amount of the wrongful gain.
Puma v. W-Mart Stores East
, 2023-NMCA-005, cert. granted.
Many factors figure into issue of materiality.
Smoot v. Physicians Life Ins. Co.
, 2004-NMCA-027, 135 N.M. 265, 87 P.3d 545.
Unfair Practices Act imposes duty to disclose material facts
reasonably necessary to prevent any statements from being misleading.
Smoot v. Physicians Life Ins. Co.
, 2004-NMCA-027, 135 N.M. 265, 87 P.3d 545.
Existence of duty is dependent on materiality
of the facts.
Smoot v. Physicians Life Ins. Co.
, 2004-NMCA-027, 135 N.M. 265, 87 P.3d 545.
Degree of deception required.
— Subsection D(14) of this section does not require that the defendant's conduct actually deceive a consumer; it permits recovery even if the conduct only tends to deceive.
Smoot v. Physicians Life Ins. Co.
, 2004-NMCA-027, 135 N.M. 265, 87 P.3d 545.
Intentional and unintentional statements.
— This article applies to all misleading or deceptive statements, whether intentionally or unintentionally made.
Ashlock v. Sunwest Bank
, 1988-NMSC-026, 107 N.M. 100, 753 P.2d 346,
overruled on other grounds by
Gonzales v. Surgidev Corp.
, 1995-NMSC-036, 120 N.M. 133, 899 P.2d 576.
Intent to deceive not element of "unfair or deceptive trade practice"
but a knowing representation is required.
Richardson Ford Sales, Inc. v. Johnson
, 1984-NMCA-007, 100 N.M. 779, 676 P.2d 1344.
When a debt collection agency knowingly sent letters to the plaintiff containing deceptive representations, whether or not the agency intended to deceive the plaintiff was irrelevant.
Russey v. Rankin
, 911 F. Supp. 1449 (D.N.M. 1995).
An attorney who, by the practice and procedure of collection he employed in his dealings with a debt collection agency, knowingly effectuated the sending of letters containing deceptive representations, and thus violated the Unfair Trade Practices Act.
Russey v. Rankin
, 911 F. Supp. 1449 (D.N.M. 1995).
The "knowingly made" requirement
is met if a party was actually aware that the statement was false or misleading when made, or in the exercise of reasonable due diligence should have been aware that the statement was false or misleading.
Stevenson v. Louis Dreyfus Corp.
, 1991-NMSC-051, 112 N.M. 97, 811 P.2d 1308.
The "knowingly made" requirement
in Subsection D is met if a party was actually aware that the statement was false or misleading when made or, in the exercise of reasonable diligence, should have been aware that the statement was false or misleading.
Russey v. Rankin
, 911 F. Supp. 1449 (D.N.M. 1995).
Plaintiff did not establish a violation of the Unfair Practices Act where no proof was offered that defendant knew that misrepresentations as to insurance coverage were false or misleading.
Teague-Strebeck Motors, Inc. v. Chrysler Ins. Co.
, 1999-NMCA-109, 127 N.M. 603, 985 P.2d 1183, cert. denied, 127 N.M. 391, 981 P.2d 1209.
A claim under this act was supported by evidence that defendant insurer knew that the rates were inadequate prior to the time the agreement went into effect and did not disclose its method for deciding whether to add a surcharge to the preliminary premium or increase annual rates, and that plaintiff would not have contracted with defendant if it had that information.
Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co.
, 170 F.3d 985 (10th Cir. 1999).
Insufficient evidence of unfair trade practices.
— In an action for breach of contract, where plaintiff hired defendant to design and construct a replacement irrigation well on plaintiff's property, and although a written contract was not executed, plaintiff's understanding of the agreement, as told to him by defendant, was that defendant would construct a well that would be fully adequate for plaintiff's irrigation purposes, that it would be capable of producing 2,500 to 3,000 gallons of water per minute, and that it would last at least fifty years, and where, after three-and-a-half years, the well stopped working, the district court did not err in denying plaintiff's claim for unfair trade practices, because, although plaintiff established that defendant made false or misleading misrepresentations, there was no evidence that the false or misleading representations were knowingly made.
Robey v. Parnell
, 2017-NMCA-038.
Insufficient evidence of unconscionable trade practices.
— In an action for breach of contract, where plaintiff hired defendant to design and construct a replacement irrigation well on plaintiff's property, and although a written contract was not executed, plaintiff's understanding of the agreement, as told to him by defendant, was that defendant would construct a well that would be fully adequate for plaintiff's irrigation purposes, that it would be capable of producing 2,500 to 3,000 gallons of water per minute, and that it would last at least fifty years, and where, after three-and-a-half years, the well stopped working, the district court did not err in denying plaintiff's claim for unconscionable trade practices, because plaintiff did not meet his burden of providing evidence that the value received was grossly disproportionate to the price paid, other than arguing that he received less than 10 percent of the longevity he was promised.
Robey v. Parnell
, 2017-NMCA-038.
Jury instruction as to knowing misrepresentation.
— Jury instruction stating that plaintiff had the burden of proving that defendant had knowingly made misrepresentations, including failing to deliver the quantity of goods and services contracted for, while inartfully drafted, accurately stated the law; it did not equate simple breach of contract with knowing misrepresentation, but required plaintiff to establish a knowing misrepresentation by defendant in relation to the goods and services contracted for.
Diversey Corp. v. Chem-Source Corp.
, 1998-NMCA-112, 125 N.M. 748, 965 P.2d 332.
Refusal to acknowledge liability.
— Bank's refusal to acknowledge liability, pursuant to the "FTC Holder Rule", on a contract for a mobile home assigned to it from the original seller was an unfair practice under Subsection D(15).
Jaramillo v. Gonzales
, 2002-NMCA-072, 132 N.M. 459, 50 P.3d 554, cert. denied, 132 N.M. 288, 47 P.3d 447.
Single or multiple instances.
— This article makes no distinction between single or multiple instances of prohibited conduct.
Ashlock v. Sunwest Bank
, 1988-NMSC-026, 107 N.M. 100, 753 P.2d 346,
overruled on other grounds by
Gonzales v. Surgidev Corp.
, 1995-NMSC-036, 120 N.M. 133, 899 P.2d 576.
The Unfair Trade Practices Act does not require a showing of multiple violations.
Hale v. Basin Motor Co.
, 1990-NMSC-068, 110 N.M. 314, 795 P.2d 1006.
Failure to deliver contracted services.
— Where a bank advertised through the mail and in the newspapers that it would provide an interest-bearing account, the advertisements were representations knowingly made by the bank in connection with the offering of a service, as a direct result of the advertising and of subsequent discussions with a bank employee, the plaintiff transferred monies into an account for the express purpose of earning such interest, and the plaintiff sued because of the bank's failure to pay interest as advertised and as was indicated to him by the bank when his funds were transferred, since the entire series of acts clearly occurred in the regular course of the bank's business, the bank's refusal to remedy the situation patently resulted in its failure to deliver the quality of services contracted for, contrary to Subsection D(17).
Ashlock v. Sunwest Bank
, 1988-NMSC-026, 107 N.M. 100, 753 P.2d 346,
overruled on other grounds by
Gonzales v. Surgidev Corp.
, 1995-NMSC-036, 120 N.M. 133, 899 P.2d 576.
Failure to defend or indemnify in qui tam actions.
— Claims under the Unfair Practices Act failed where defendant insurance companies had no duty to defend nor indemnify plaintiff against a qui tam action that the federal government brought, and plaintiff did not allege any facts tending to show that defendants knowingly misled it or made any false statement.
New Mem. Assocs. v. Credit Gen. Ins. Corp.
, 973 F. Supp. 1027 (D.N.M. 1997).
"New demonstrator" is not deceptive.
— Car dealer's statement that a vehicle was a "new demonstrator" was not intended to suggest that the vehicle was unused or "new," and therefore did not violate the Unfair Trade Practices Act.
Hale v. Basin Motor Co.
, 1990-NMSC-068, 110 N.M. 314, 795 P.2d 1006.
Claim of unconscionable trade practice requires some duty of defendant.
— Even if Unfair Practices Act applies to insurance companies, insured failed to present evidence to support claim that failure to explain policy to insured constituted unconscionable trade practice where insured had duty to read and familiarize himself with the policy and insurer had no duty to explain that insured was not covered while driving girlfriend's car.
State Farm Fire & Cas. Co. v. Price
, 1984-NMCA-036, 101 N.M. 438, 684 P.2d 524, cert. denied, 101 N.M. 362, 683 P.2d 44,
overruled on other grounds by
Ellingwood v. N.N. Investors Life Ins. Co.
, 1991-NMSC-006, 111 N.M. 301, 805 P.2d 70.
Allegations sufficient to go forward.
— Allegations that a bank engaged in an unconscionable trade practice by taking advantage of the defendants' lack of ability and capacity due to their advancing age, by charging excessive overdraft fees, by misrepresenting the nature of an advance note, by allegedly thwarting the defendants' attempt at obtaining financing elsewhere, and by attempting foreclosure on the defendants' ranch were sufficient to go forward on defendants' broad counterclaim of unconscionable trade practices.
Portales Nat'l Bank v. Ribble
, 2003-NMCA-093, 134 N.M. 238, 75 P.3d 838.
Negligent failure to obtain insurance coverage.
— The claim of negligent failure to obtain insurance coverage presupposes that there was no coverage. Since the jury determined that the property was in fact covered, the claim of negligent failure to obtain coverage fails.
Paiz v. State Farm Fire & Cas. Co.
, 1994-NMSC-079, 118 N.M. 203, 880 P.2d 300.
Abuse by counselor did not create claim under this act.
— In an action against a hospital for damages sustained as the result of a sexual assault by a counselor, where plaintiff failed to show that the hospital's advertising was false or misleading in connection with the sale of its goods and services, she failed to establish a claim under the Unfair Practices Act.
Eckhardt v. Charter Hosp.
, 1998-NMCA-017, 124 N.M. 549, 953 P.2d 722.
Because alleged misrepresentations are unconnected to good or service,
the claim does not fall within the parameters of the Unfair Practices Act.
Eden v. Voss
, 105 Fed. Appx. 234 (10th Cir. 2004).
Sale of completed house is not sale of goods or services
for purposes of Subsection D of this section.
McElhannon v. Ford
, 2003-NMCA-091, 134 N.M. 124, 73 P.3d 827.
Construction services rendered prior to completion of a residential home are "any services" as defined in this section.
— In a dispute between parties to a contract for the construction of a new home, where construction company, after experiencing financial difficulties, ceased operations and failed to construct and deliver the home to plaintiffs, the district court erred in dismissing as a matter of law plaintiff's claim for unfair trade practices, because in the absence of language expressly including or excluding construction services, construction services rendered prior to the completion of a residential home are "any services" as defined in this section.
Fogelson v. Wallace
, 2017-NMCA-089, cert. granted.
Royalties.
— The payment of royalties, including any associated deductions for post-production oil and gas costs, is not connected to goods and services but to realty, and claim alleging underpayment of royalties does not fall within the ambit of the Unfair Practices Act.
Elliott Indus. Ltd. P'ship v. BP Am. Prod. Co.
, 407 F.3d 1091 (10th Cir. 2005).
Erroneous financial advice.
— Where defendant provided financial services to plaintiff, which included management of plaintiff's securities account; at defendant's recommendation, plaintiff purchased a deferred variable annuity; defendant subsequently erroneously advised plaintiff that plaintiff could withdraw money from the annuity to purchase an office building without incurring any tax liability; plaintiff withdrew the money from the annuity; the IRS determined that the withdrawal was subject to income tax, increased plaintiff's tax liability by the amount withdrawn, and assessed additional taxes, interest and penalties; and plaintiff would not have withdrawn money from the annuity but for defendant's misrepresentation that the withdrawal would be tax free, defendant's erroneous advise was given in connection with the sale of financial services to plaintiff and was subject to the Uniform Practices Act.
Maese v. Garrett
, 2014-NMCA-072, cert. denied, 2014-NMCERT-006.
Evidence of good faith.
— The mere fact of a bad result and breach of warranty by a defendant contracted to perform repairs did not require a finding that the defendant acted in violation of this article, where the defendant acted in good faith and there was substantial evidence that the defendant did not knowingly make any false or misleading statement or other misrepresentation of any kind.
Hubbard v. Albuquerque Truck Ctr. Ltd.
, 1998-NMCA-058, 125 N.M. 153, 958 P.2d 111.
Violation of act shown.
— Substantial evidence existed of violations of this act, where the aggrieved party testified that the signature on a construction contract was not his own, and the jury was allowed to compare it to authentic samples of his signature, and where testimony was given that the contractor billed for material used on other construction projects, that the invoices were illegible and that other problems existed. The fact that any errors in the billings may have been unintentional does not remove the conduct from the prohibitions of this act.
Page & Wirtz Constr. Co. v. Solomon
, 1990-NMSC-063, 110 N.M. 206, 794 P.2d 349.
Signature loans were substantively and procedurally unconscionable.
— Where defendants marketed and originated unsecured signature loans of between $50 and $300 to the working poor who provided proof of steady employment but who were either unbanked or underbanked and who were significantly less-educated than the general population and financially unsophisticated individuals; the loans carried APRs of between 1,147.14 and 1,500 percent and were payable in biweekly installments over a year; defendants exploited the borrower's disadvantage by describing loans in terms of a misleading daily rate, advertising loans for 50 percent off when the discount was the interest on the first installment on the loan, encouraged borrowers to increase the principal of their loans or to take out another loan, withheld amortization schedules from customers which revealed that the loans were interest-only loans for extended periods of time, and leveraged borrowers' cognitive and behavioral weakness that caused borrowers to focus in the promise of quick cash rather than on the long-term costs of the loans and the borrowers' ability to repay the loans; and the terms of defendants' loan contracts were non-negotiable, the loans were substantively and procedurally unconscionable under the common law and violated the Unfair Practices Act.
State ex rel. King v. B&B; Inv. Grp. Inc.
, 2014-NMSC-024.
Violation of act not shown.
— Granting of the company's counterclaim for malicious abuse of process was proper in part pursuant to where the district court could have found that the builder lacked a reasonable basis for believing that the company made a knowing misrepresentation about the deposit because the company merely offered the builder the option of receiving either a partial cash refund, less the cost of the time-study door, or the full amount in store credit.
Dawley v. La Puerta Architectural Antiques, Inc.
, 2003-NMCA-029, 133 N.M. 389, 62 P.3d 1271.
Plaintiff failed to plausibly state a claim under the NMUPA.
— Where plaintiff, an eye surgery center that reduced its operations as a result of the COVID-19 pandemic, brought an action against defendant, an insurance company that issued to plaintiff a commercial property policy, for violation of the New Mexico Unfair Practices Act, §§ 57-12-1 to -26 NMSA 1978, alleging that defendant used ambiguity as to the offered coverage, offered, and charged a premium for, first-party all-risk insurance coverage, and then denied coverage, and withheld coverage on a basis it failed to disclose to plaintiff, the claim was dismissed, because plaintiff's complaint did not identify which statement or statements at issue were false or misleading, failed to allege facts in its complaint to show that any misrepresentation tended to deceive or mislead any person, and failed to allege facts to show that such defendant's conduct occurred in the regular course of defendant's business. A complaint must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.
Albuquerque Ambulatory Eye Surgery Ctr. LLC v. Transportation Ins. Co.
, 566 F. Supp.3d 1178 (D. N.M. 2021)
Summary judgment proper.
— In an action alleging unconscionable trade practices, summary judgment upheld where plaintiff failed to meet his burden to rebut bank's prima facie evidence that the overdraft fee was not grossly disproportionate to the value received.
Hernandez v. Wells Fargo Bank New Mexico
, 2006-NMCA-018, 139 N.M. 68, 128 P.3d 496.
Act not in conflict with federal law.
— The Unfair Practices Act (this article) and federal legislation are not in conflict, and 15 U.S.C. § 57b (e) has not preempted the New Mexico act.
Ashlock v. Sunwest Bank
, 1988-NMSC-026, 107 N.M. 100, 753 P.2d 346,
overruled on other grounds by
Gonzales v. Surgidev Corp.
, 1995-NMSC-036, 120 N.M. 133, 899 P.2d 576.
Federal court definitions inapplicable to terms defined in this section.
— Since this section defines both "unfair or deceptive" and "unconscionable" trade practices, relying on 57-12-4 NMSA 1978 to apply federal court definitions of those terms would not be giving effect to the statute.
Richardson Ford Sales, Inc. v. Johnson
, 1984-NMCA-007, 100 N.M. 779, 676 P.2d 1344.
Claim preempted by federal law.
— Plaintiff's action seeking to prevent defendants from selling furniture "deceptively similar" to that of the plaintiff did not involve a state claim of unfair competition, where the protection plaintiff sought was protection against copying designs and his claim was therefore preempted by federal law.
Ernest Thompson Fine Furniture Maker, Inc. v. Youart
, 1990-NMCA-012, 109 N.M. 572, 787 P.2d 1255.
Nonunique items must be offered in amounts related to demand.
— Pursuant to Subsection D(10), nonunique items or commodities must be offered in supplies to satisfy reasonably expected public demand, and of course, the test for determining the expected public demand is subjective and would depend on variable factors concerning the type of sale and the commodity involved. 1971 Op. Att'y Gen. No. 71-123.
Law reviews.
— For article, "Consumer Class Actions Under the New Mexico Unfair Practices Act," see 4 N.M.L. Rev. 49 (1973).
For annual survey of New Mexico Commercial Law, see 20 N.M.L. Rev. 239 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Liability for interference with franchise, 97 A.L.R.3d 890.
Refusal to pay debt as economic duress or business compulsion avoiding compromise or release, 9 A.L.R.4th 942.
What goods or property are "used," "secondhand," or the like, for purposes of state consumer laws prohibiting claims that such items are new, 59 A.L.R.4th 1192.
Who is a "consumer" entitled to protection of state deceptive trade practice and consumer protection acts, 63 A.L.R.5th 1.