2019 New Mexico Statutes
Chapter 57 - Trade Practices and Regulations
Article 12 - Unfair Trade Practices
Section 57-12-3 - Unfair or deceptive and unconscionable trade practices prohibited.

Universal Citation: NM Stat § 57-12-3 (2019)

Unfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce are unlawful.

History: 1953 Comp., § 49-15-3, enacted by Laws 1967, ch. 268, § 3; 1971, ch. 240, § 2.

ANNOTATIONS

Claims must be based on regular course of trade or commerce. — Claims made under the Unfair Practices Act must be based on conduct occurring in defendant's regular course of trade or commerce. Klein v. Bronstein, 39 B.R. 20 (Bankr. D.N.M. 1984).

Three essential elements of a claim under the Unfair Practices Act. — A successful plaintiff must prove (1) the defendant made an oral or written statement, a visual description or a representation of any kind that was either false or misleading; (2) the false or misleading representation was knowingly made in connection with the sale, lease, rental, or loan of goods or services in the regular course of the defendant's business; and (3) the representation was of the type that may, tends to, or does deceive or mislead any person. Dollens v. Wells Fargo Bank, 2015-NMCA-096.

Where defendant bank, as the agent of its borrower and as the licensed agency representing an insurance company in the sale of mortgage accidental death insurance policies for which it is a policyholder and beneficiary, knowingly created the perception that it would have a system in place or take some active role in the claims process to protect decedent's family's financial security in the event of an accidental death, decedent's family had a reasonable expectation that defendant bank would honor a request of the insurer, whose policy it sold, not to foreclose on decedent's house while a claim is pending or to otherwise credit back to the account any fees that were incurred while the insurer processed the claim. Where defendant bank failed to challenge evidence that it created a reasonable expectation that it would communicate and work together with the insurance company to prevent foreclosure during a pending accidental death claim, the district court did not err in finding a violation of the Unfair Practices Act. Dollens v. Wells Fargo Bank, 2015-NMCA-096.

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.

Car dealer's representation that car was a demonstrator and failure to disclose prior ownership that car was actually a rental car states a claim under the Unfair Practices Act, the Motor Vehicle Dealers Franchise Act and for common law fraud. Salmeron v. Highlands Ford Sales, Inc., 271 F. Supp. 2d 1314 (D.N.M. 2003).

A buyer-seller relationship is ordinarily not fiduciary in nature. — Where plaintiff, a grower and harvester of chile peppers, and defendant, a dehydration chile plant that purchases, processes, and dehydrates different varieties of chile, entered into a contract where plaintiff would deliver raw chile peppers to defendant, which would then wash, dehydrate, weigh and pay for the chile, and where plaintiff filed a lawsuit against defendant when there was a dispute as to how much chile was delivered and how much was paid for, the district court did not err in granting summary judgment to defendant on plaintiff's claim that defendant breached its fiduciary duty, because an essential feature and consequence of a fiduciary relationship is that the fiduciary becomes bound to act in the interests of its beneficiary and not itself, and this dynamic does not inhere in the ordinary buyer-seller relationship. Valerio v. San Mateo Enterprises, Inc., 2017-NMCA-059.

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

Am. Jur. 2d, A.L.R. and C.J.S. references. — Liability for interference with franchise, 97 A.L.R.3d 890.

When is termination of insurance agency contract wrongful so as to make insurer liable to agent, 5 A.L.R.4th 1080.

Recovery based on tortfeasor's profits in action for procuring breach of contract, 5 A.L.R.4th 1276.

Liability in tort for interference with physician's contract or relationship with hospital, 7 A.L.R.4th 572.

Failure to deliver ordered merchandise to customer on date promised as unfair or deceptive trade practice, 7 A.L.R.4th 1257.

Automobile repairman's duty to provide customer with information, estimates, or replaced parts, under automobile repair consumer protection act, 25 A.L.R.4th 506.

Landlord's liability for injury or death of tenant's child from lead paint poisoning, 19 A.L.R.5th 405.

World wide web domain as violating state trademark protection statute or state unfair trade practices act, 96 A.L.R.5th 1.

Modern status of pendent federal jurisdiction, under 28 USC § 1338(b), over state claim of unfair competition when joined with related claim under federal patent laws, 57 A.L.R. Fed. 418.

Modern status of pendent federal jurisdiction, under 28 USC § 1338(b), over state claim of unfair competition when joined with related claim under federal copyright laws, 58 A.L.R. Fed. 875.

Modern status of pendent federal jurisdiction, under 28 U.S.C. § 1338(b), over state claim of unfair competition when joined with related claim under federal trademark laws, 62 A.L.R. Fed. 428.

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