2019 New Mexico Statutes
Chapter 57 - Trade Practices and Regulations
Article 12 - Unfair Trade Practices
Section 57-12-17 - Issuance of ne exeat.

Universal Citation: NM Stat § 57-12-17 (2019)

Whenever the attorney general has reasonable belief that any person is using or is about to use any method, act or practice which is declared by the Unfair Practices Act to be unlawful, and whenever the attorney general has reasonable belief that any such person is about to remove himself from the state of New Mexico, or is about to remove his property or assets from the state of New Mexico, the attorney general may petition the appropriate district court for a writ of ne exeat and the court may forbid any such person from leaving the state of New Mexico, or removing his property or assets from the state of New Mexico until a determination of the issues has been made.

History: 1953 Comp., § 49-15-15, enacted by Laws 1971, ch. 164, § 1.

ANNOTATIONS

Purposes of and requirements for the issuance of the writ of ne exeat. — The purposes of the writ of ne exeat are to ensure compliance with orders and decrees of court and to enable the court to retain jurisdiction of the party against whom it is issued. The issuance of the writ requires that there be a threatened departure of the defendant or removal of property from the jurisdiction and a resulting defeat of the court's power to give effective in personam relief due to its loss of control over the defendant's person or property. In the absence of a threat to abscond, the writ may not be used as a form of coercing payment of a debt, no matter how just, nor as a form of punishment, no matter how deserved. Once the purposes of the writ and conditions of the bond have been fulfilled, the writ and the bond are discharged. Failure to comply with the conditions of a ne exeat bond results in forfeiture of the bond. Atherton v. Gopin, 2015-NMCA-087.

The writ of ne exeat is collateral to an Unfair Practices Act judgment. — Issuance of the writ does not depend on an actual violation of the New Mexico Unfair Practices Act, 57-12-1 NMSA 1978 et seq. (UPA). This section permits the issuance of a writ of ne exeat when the attorney general has a reasonable belief that any person is using or is about to use any method, act or practice which is declared by the UPA to be unlawful and reasonable belief that any such person is about to remove himself from the state, or is about to remove his property or assets from the state. The writ is a means to effectuate a remedy for UPA violations by keeping a party within the jurisdiction of the court, but it is not itself a remedy, and it is necessarily collateral to any UPA judgment that may be entered. Atherton v. Gopin, 2015-NMCA-087.

Following entry of summary judgment for over $2,500,000 against defendant for violations of the New Mexico Unfair Practices Act, 57-12-1 NMSA 1978 et seq., the district court issued a writ of ne exeat and ordered defendant to post a ne exeat bond in the amount of $100,000 based on evidence that defendant was about to remove assets from the jurisdiction of the district court, and following a hearing where the district court found that there was evidence that defendant had engaged in complex financial transactions for the purpose of preventing collection of the judgment, that defendant had dissipated assets during the pendency of the case, including the sale of property, and that defendant, who failed to appear at the hearing, had previously testified under oath that he would attend all future hearings in the case and would not flee the jurisdiction, the district court increased the ne exeat bond to $500,000 to prevent further dissipation of assets within the jurisdiction of the court and to secure defendant's appearance at future proceedings. Based on the collateral nature of the writ of ne exeat, the modification of the ne exeat bond order was within the district court's jurisdiction to enforce its judgment in the underlying case notwithstanding the appeal of that judgment. Atherton v. Gopin, 2015-NMCA-087.

Ne exeat bond amount. — A ne exeat bond amount is within the district court's discretion, but the bond amount may not be excessive or oppressive. Atherton v. Gopin, 2015-NMCA-087.

Following entry of summary judgment for over $2,500,000 against defendant for violations of the New Mexico Unfair Practices Act, 57-12-1 NMSA 1978 et seq., the district court issued a writ of ne exeat and ordered defendant to post a ne exeat bond in the amount of $100,000 based on evidence that defendant was about to remove assets from the jurisdiction of the district court, and following a hearing where the district court found that there was evidence that defendant had engaged in complex financial transactions for the purpose of preventing collection of the judgment, that defendant had dissipated assets during the pendency of the case, including the sale of property, and that defendant, who failed to appear at the hearing, had previously testified under oath that he would attend all future hearings in the case and would not flee the jurisdiction, the district court increased the ne exeat bond to $500,000 to prevent further dissipation of assets within the jurisdiction of the court and to secure defendant's appearance at future proceedings. The district court did not abuse its discretion in setting the bond amount where the total bond amount, including the increase, was well under the total amount of the judgment of approximately $2.5 million, and where defendant did not argue on appeal that the bond amount was excessive or oppressive. Atherton v. Gopin, 2015-NMCA-087.

Sufficient evidence to support district court's decision to increase ne exeat bond amount. — Following entry of summary judgment for over $2,500,000 against defendant for violations of the New Mexico Unfair Practices Act, 57-12-1 NMSA 1978 et seq., the district court issued a writ of ne exeat and ordered defendant to post a ne exeat bond in the amount of $100,000 based on evidence that defendant was about to remove assets from the jurisdiction of the district court, and following a hearing where the district court found that there was evidence that defendant had engaged in complex financial transactions for the purpose of preventing collection of the judgment, that defendant had dissipated assets during the pendency of the case, including the sale of property, and that defendant, who failed to appear at the hearing, had previously testified under oath that he would attend all future hearings in the case and would not flee the jurisdiction, the district court increased the ne exeat bond to $500,000 to prevent further dissipation of assets within the jurisdiction of the court and to secure defendant's appearance at future proceedings. Where evidence established that defendant owned certain real property, that he entered into a real estate contract for sale of the property and transferred his interest in the property to his wife just days before judgment was entered in the underlying case, the district court could reasonably find that the sale and transfer of the property constituted dissipation of assets. There was sufficient evidence to support the district court's decision to increase the ne exeat bond. Atherton v. Gopin, 2015-NMCA-087.

Due process required during hearing on motion for writ of ne exeat. — Due process is required during a hearing on a motion for writ of ne exeat, and is provided when a defendant has timely notice, a reasonable opportunity to be heard, a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence, representation by counsel, and a hearing before an impartial decisionmaker. Atherton v. Gopin, 2015-NMCA-087.

Following entry of summary judgment for over $2,500,000 against defendant for violations of the New Mexico Unfair Practices Act, 57-12-1 NMSA 1978 et seq., the district court issued a writ of ne exeat and ordered defendant to post a ne exeat bond in the amount of $100,000 based on evidence that defendant was about to remove assets from the jurisdiction of the district court, and following a hearing where the district court found that there was evidence that defendant had engaged in complex financial transactions for the purpose of preventing collection of the judgment, that defendant had dissipated assets during the pendency of the case, including the sale of property, and that defendant, who failed to appear at the hearing, had previously testified under oath that he would attend all future hearings in the case and would not flee the jurisdiction, the district court increased the ne exeat bond to $500,000 to prevent further dissipation of assets within the jurisdiction of the court and to secure defendant's appearance at future proceedings. Defendant's right to due process of law was not violated where defendant filed a response in opposition to the motion for writ of ne exeat, in which he disputed that he was dissipating assets from the state, where defendant had notice of and was present and represented by counsel at the hearing on the initial motion, where there was no indication in the record that defendant was denied the opportunity to present witnesses at the hearing, and where defendant submitted exhibits for the district court's review. Atherton v. Gopin, 2015-NMCA-087.

Law reviews. — For article, "Consumer Class Actions Under the New Mexico Unfair Practices Act," see 4 N.M.L. Rev. 49 (1973).

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