2019 New Mexico Statutes
Chapter 58 - Financial Institutions and Regulations
Article 15 - Small Loan Business
Section 58-15-17 - Requirements for making and paying of loans; incomplete instruments; limitations on charges after judgment and interest.

A. Every licensee shall:

(1) at the time a loan is made within the provisions of the New Mexico Small Loan Act of 1955, deliver to the borrower or, if there are two or more borrowers on the same obligation, to one of them, a statement in English or Spanish, as required by federal law, on which shall be printed a copy of Section 58-15-14.1 NMSA 1978 and that discloses in clear and distinct terms:

(a) the amount of the loan;

(b) the date the loan was made;

(c) a schedule or a description of the payments;

(d) the type of the security, if any, for the loan;

(e) the name and address of the licensed office;

(f) the name of the person primarily obligated for the loan;

(g) the amount of principal;

(h) the annual interest rate as disclosed pursuant to 12 CFR Part 1026, known as "Regulation Z", and the amount in dollars and cents;

(i) all other disclosures required pursuant to state and federal law; and

(j) other items allowable pursuant to that act, so stated as to clearly show the allocation of each item included;

(2) for each payment made on account of any such loan, give to the person making it a plain and complete receipt specifying the date and amount of the payment, the amount applied to interest and principal and the balance unpaid. When payment is made in any other manner than by the borrower in person, by an agent of the borrower or by check or money order, the licensee shall mail the receipt to the borrower's last known address or hold the receipt for delivery upon request of the borrower. A copy of all receipts shall be kept on file in the office of the licensee as a part of the licensee's records; and

(3) upon payment of the loan in full, mark plainly every note and promise to pay signed by any obligor with the word "paid" or "canceled" and promptly file or record a release of any mortgage if the mortgage has been recorded, restore any pledge and cancel and return any note and any assignment given to the licensee. A licensee may mark and return a copy of the note, promise to pay or any assignment if the copy accurately reproduces the complete original.

B. A licensee shall not take a note or promise to pay that does not disclose the amount of the loan, a schedule of payments, or a description thereof, and the agreed charge or rate of charge or any instrument in which blanks are left to be filled in after execution.

C. If judgment is obtained against a party on a loan made pursuant to the provisions of the New Mexico Small Loan Act of 1955, neither the judgment nor the loan shall carry, from the date of the judgment, charges against a party to the loan other than costs, attorney fees and post-judgment interest as provided by law.

D. Any loan made under the provisions of the New Mexico Small Loan Act of 1955 that is filed and approved as a claim in any bankruptcy proceeding shall, from a date ninety days subsequent to the date of adjudication, bear interest at the rate of ten percent a year only. This limitation shall not apply when the bankrupt is not discharged in bankruptcy or to any obligation not dischargeable under the provisions of the United States Bankruptcy Code presently in force or as hereafter amended.

E. No loan made under the provisions of the New Mexico Small Loan Act of 1955 shall bear interest after ninety days from the date of the death of the borrower in excess of a rate of ten percent a year on the unpaid principal balance of the loan.

F. No loan made under the provisions of the New Mexico Small Loan Act of 1955 shall bear interest after twelve months from the date of maturity of the loan in excess of ten percent a year upon the unpaid principal balance of the loan.

G. No lender shall make a loan pursuant to the New Mexico Small Loan Act of 1955 if a loan has an initial stated maturity of less than one hundred twenty days unless the loan is a refund anticipation loan.

H. No lender shall make a loan pursuant to the New Mexico Small Loan Act of 1955 unless the loan is an installment loan or a refund anticipation loan.

I. No lender shall make a loan pursuant to the New Mexico Small Loan Act of 1955, other than a refund anticipation loan, unless the loan is repayable in a minimum of four substantially equal installment payments of principal and interest.

J. No lender shall make a loan pursuant to the New Mexico Small Loan Act of 1955 that has an annual percentage rate greater than one hundred seventy-five percent, calculated pursuant to 12 CFR Part 1026, known as "Regulation Z".

History: 1953 Comp., § 48-17-44, enacted by Laws 1955, ch. 128, § 15; 1996, ch. 50, § 1; 2007, ch. 86, § 10; 2017, ch. 110, § 17.

The 2017 amendment, effective January 1, 2018, clarified that federal law requires every licensee to deliver to a borrower a statement in English or Spanish containing certain information regarding the loan, included the annual interest rate to the list of information that must be contained in the statement that licensees are required to provide to a borrower, placed additional restrictions on making certain installment loans, and made tax refund anticipation loans exempt from these provisions; in Subsection A, Paragraph A(1), in the introductory clause, after "English or Spanish, as", deleted "requested by the borrower" and added "required by federal law", in Subparagraph A(1)(h), after the first occurrence of "the", deleted "agreed rate of charge stated on a percent per year basis" and added "annual interest rate as disclosed pursuant to 12 CFR Part 1026, known as 'Regulation Z'"; in Subsection D, after "the provisions of the", added "United States", and after "Bankruptcy", deleted "Act" and added "Code"; and added Subsections G through J.

Applicability. — Laws 2017, ch. 110, § 26 provided that the provisions of Laws 2017, ch. 110 shall apply to loans subject to the New Mexico Small Loan Act of 1955 and the New Mexico Bank Installment Loan Act of 1959 executed on or after January 1, 2018.

The 2007 amendment, effective November 1, 2007, requires that a licensee deliver a disclosure statement in Spanish if requested by the borrower and that the disclosure statement include all disclosures required by state or federal law and prohibits a judgment or loan from carrying charges other than costs, attorney fees and post-judgment interest as provided by law after a judgment is entered.

Severability clause. — Laws 2007, ch. 86, § 23 provided that if any part or application of the act is held invalid, the remainder or its application to other situations or persons shall not be affected.

The 1996 amendment, effective May 15, 1996, added the section heading, in Paragraph A(3) deleted "filed or"in the first sentence and rewrote the last sentence, and made stylistic changes throughout the section.

Financing statement tantamount to mortgage. — A chattel mortgage is commonly accepted as being a pledge of particular property for the payment of a debt. The financing statements required to be filed under the Uniform Commercial Code are, in effect, mortgages because they create a lien on the property pledged. Concluding, then, that financing statements are tantamount to mortgages, a release of such a lien must be filed whenever a note is paid in full, as provided for in Subsection A(3) of this section. 1962 Op. Att'y Gen. No. 62-50 (overruled 1970 Op. Att'y Gen. No. 70-78).

When mere refinancing. — Small loan companies are no longer required to file termination statements and new financing statements merely because a loan has been refinanced. 1970 Op. Att'y Gen. No. 70-78.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 53A Am. Jur. 2d Money Lenders and Pawnbrokers §§ 6, 7, 38, 46 et seq.

58 C.J.S. Money Lenders §§ 2 to 8.