New
Mexico Lemon Law
NM Statutes Chapter 57, Article 16A
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57-16A-1. Short title.
This act [57-16A-1 to 57-16A-9 NMSA
1978] may be cited as the "Motor
Vehicle Quality Assurance Act".
History: Laws 1985, ch. 220, ¤
1.
57-16A-2 Definitions
(Effective January 1, 2004.).
As used in the Motor
Vehicle Quality Assurance Act [57-16A-1
to 57-16A-9 NMSA 1978]:
A. "collateral charges"
means additional charges to a consumer
not directly attributed to a manufacturer's
suggested retail price label for a
new motor vehicle and includes all
taxes, license, title and registration
fees and other governmental charges
related to the purchase of the vehicle;
B. "comparable motor vehicle"
means an identical or reasonably equivalent
motor vehicle;
C. "consumer"
means the purchaser, other than for
purposes of resale, of a new or used
motor vehicle normally used for personal,
family or household purposes, a person
to whom such a motor vehicle has been
transferred during the duration of
an express warranty applicable to
the motor vehicle and any other person
entitled by the terms of the warranty
to enforce the obligations of the
warranty;
D. "express
warranty" means a written affirmation
of the fact of promise made by a manufacturer
to a consumer in connection with the
sale of a new or used motor vehicle
that relates to the nature of the
material or workmanship or to a specified
level of performance over a specified
period of time, including any terms
or conditions precedent to the enforcement
of obligations pursuant to the warranty;
E. "manufacturer"
means a person engaged in the manufacturing,
assembling, importing or distributing
of a motor vehicle as a regular business
F. "motor vehicle"
means a passenger motor vehicle, including
an automobile, pickup truck, motorcycle
or van normally used for personal,
family or household purposes, that
is sold and registered in this state
and whose gross vehicle weight is
less than ten thousand pounds.
G. "used motor
vehicle" means a motor vehicle
that has been sold, bargained or exchanged
or a motor vehicle that is the subject
of a title that has been transferred
from the person who first acquired
the motor vehicle from the manufacturer,
importer or dealer or agent of the
manufacturer or importer and that
has been placed in bona fide consumer
use; and
H. "used motor
vehicle dealer" means a person
or business that sells or offers for
sale a used motor vehicle after selling
or offering for sale four or more
used motor vehicles in the previous
twelve months but does not include:
(1) a bank or financial institution;
(2) an insurance company;
(3) a business selling
a used motor vehicle to an employee
of the business; or
(4) a lessor selling
a leased vehicle to the lessee of
the vehicle or to an employee of the
lessee of the vehicle.
History: Laws 1985, ch. 220, ¤
2.
57-16A-3 Conformation to express warranties
A. If a new motor vehicle does not
conform to all applicable express
warranties and the consumer reports
the nonconformity to the manufacturer,
its agent or its authorized dealer
during the term of such express warranties
or during the period of one year following
the date of original delivery of the
motor vehicle to a consumer, whichever
is the earlier date, the manufacturer,
its agent or its authorized dealer
shall make such repairs as are necessary
to conform the vehicle to such express
warranties.
B. If the manufacturer or its agent
or authorized dealer, after a reasonable
number of attempts, is unable to conform
the new motor vehicle to any applicable
express warranty by repairing or correcting
any defect or condition which substantially
impairs the use and market value of
the motor vehicle to the consumer,
the manufacturer shall replace the
motor vehicle with a comparable motor
vehicle or accept return of the vehicle
from the consumer and refund to the
consumer the full purchase price including
all collateral charges, less a reasonable
allowance for the consumer's use of
the vehicle. The subtraction of a
reasonable allowance for use shall
apply when either a replacement or
refund of the new motor vehicle occurs.
As used in this subsection, a reasonable
allowance for use shall be that amount
directly attributable to use by the
consumer prior to his first report
of the nonconformity to the manufacturer,
agent or dealer and during any subsequent
period when the vehicle is not out
of service by reason of repair. Refunds
shall be made to consumers or lienholders
as their interests may appear.
C. It shall be presumed
that a reasonable number of attempts
as mentioned in Subsection B of this
section have been undertaken to conform
a new motor vehicle to the applicable
express warranties if:
(1) the same uncorrected nonconformity
has been subject to repair four or
more times by the manufacturer or
its agents or authorized dealers within
the express warranty term or during
the period of one year following the
date of original delivery of the motor
vehicle to a consumer, whichever is
the earlier date, but the nonconformity
continues to exist; or
(2) the vehicle is in the possession
of the manufacturer, its agent or
authorized dealer for repair a cumulative
total of thirty or more business days
during such term or during such period
whichever is the earlier date, exclusive
of down time for routine maintenance
as prescribed by the manufacturer.
The term of an express warranty, such
one-year period and such thirty-day
period shall be extended by any period
of time during which repair services
are not available to the consumer
because of war, invasion, strike,
fire, flood or other natural disaster.
In no event shall the presumption
herein provided apply against a manufacturer
unless the manufacturer has received
prior direct written notification
from or on behalf of the consumer
and an opportunity to cure the defect
alleged. The manufacturer shall provide
written notice and instruction to
the consumer, either in the warranty
or a separate notice, of the obligation
to file this written notification
before invoking the remedies available
pursuant to the Motor Vehicle Quality
Assurance Act [57-16A-1 to 57-16A-9
NMSA 1978].
History: Laws 1985,
ch. 220, ¤ 3.
57-16A-3.1 Used motor
vehicles. (Effective January 1, 2004.)
A. Unless a seller is a used motor
vehicle dealer, before the seller
attempts to sell a used motor vehicle,
the seller shall possess the title
to the used motor vehicle and the
title shall be in the seller's name.
B. Except as otherwise provided in
the Motor Vehicle Quality Assurance
Act [57-16A-1 to 57-16A-9 NMSA 1978],
a used motorvehicle dealer shall not
exclude, modify or disclaim the implied
warranty of merchantability prescribed
in Section 55-2-314 NMSA 1978 or limit
the remedies for a breach of the warranty
before midnight of the fifteenth calendar
day after delivery of a used motor
vehicle or until a used motor vehicle
is driven five hundred miles after
delivery, whichever is earlier. In
calculating time under this subsection,
a day on which the warranty is breached
and all subsequent days in which the
used motor vehicle fails to conform
with the implied warranty of merchantability
are excluded. In calculating distance
under this subsection, the miles driven
to obtain or in connection with the
repair, servicing or testing of the
used motor vehicle that fails to conform
with the implied warranty of merchantability
are excluded. An attempt to exclude,
modify or disclaim the implied warranty
of merchantability or to limit the
remedies for a breach of the warranty
in violation of this subsection renders
a purchase agreement voidable at the
option of the purchaser.
C. An implied warranty
of merchantability is met if a used
motor vehicle functions substantially
free of a defect that significantly
limits the use of the used motor vehicle
for the ordinary purpose of transportation
on any public highway. The implied
warranty of merchantability expires
at midnight of the fifteenth calendar
day after delivery of a used motor
vehicle or until a used motor vehicle
is driven five hundred miles after
delivery, whichever is earlier. In
calculating time, a day on which the
implied warranty of merchantability
is breached is excluded and all subsequent
days in which the used motor vehicle
fails to conform with the warranty
are also excluded. In calculating
distance, the miles driven to obtain
or in connection with the repair,
servicing or testing of the used motor
vehicle that fails to conform with
the implied warranty of merchantability
are excluded.
D. An implied warranty
of merchantability does not extend
to damage that occurs after the sale
of the used motor vehicle that results
from:
(1) off-road use;
(2) racing;
(3) towing;
(4) abuse;
(5) misuse;
(6) neglect;
(7) failure to perform
regular maintenance; and
(8) failure to maintain
adequate oil, coolant and other required
fluids or lubricants.
E. If the implied warranty of merchantability
described in this section is breached,
the consumer shall give reasonable
notice to the seller within thirty
days of the date of the breach. Before
the consumer exercises another remedy
pursuant to Chapter 55, Article 2
NMSA 1978, the seller shall have a
reasonable opportunity to repair the
used motor vehicle. The consumer shall
pay one-half of the cost of the first
two repairs necessary to bring the
used motor vehicle into compliance
with the warranty. The payments by
the consumer are limited to a maximum
payment of twenty-five dollars ($25.00)
for each repair.
F. The maximum liability of a seller
pursuant to this section is limited
to the purchase price paid for the
used motor vehicle, to be refunded
to the consumer or lender, as applicable,
in exchange for return of the vehicle,
unless the seller knew or should have
known of the defect given the circumstances
in which the vehicle was acquired
or sold and the seller did not disclose
that defect.
G. An agreement for
the sale of a used motor vehicle by
a used motor vehicle dealer is voidable
at the option of the consumer unless
it contains on its face the following
conspicuous statement printed in boldface,
ten-point or larger type set off from
the body of the agreement:
"New Mexico
law requires that this vehicle will
be fit for the ordinary purposes for
which the vehicle is used for fifteen
days or five hundred miles after delivery,
whichever is earlier, except with
regard to particular defects disclosed
on the first page of this agreement.
You (the consumer) will have to pay
up to twenty-five dollars ($25.00)
for each of the first two repairs
if the warranty is violated.".
H. The inclusion
in the agreement of the statement
prescribed in Subsection G of this
section does not create an express
warranty.
I. A consumer of
a used motor vehicle may waive the
implied warranty of merchantability
only for a particular defect in the
vehicle and only if all of the following
conditions are satisfied:
(1) the used motor vehicle dealer
fully and accurately discloses to
the consumer that because of circumstances
unusual to the business of the used
motor vehicle dealer, the used motor
vehicle has a particular defect;
(2) the consumer agrees to buy the
used motor vehicle after disclosure
of the defect; and
(3) before the sale,
the consumer indicates agreement to
the waiver by signing and dating the
following conspicuous statement that
is printed on the first page of the
sales agreement in boldface ten-point
or larger type and that is written
in the language in which the presentation
was made:
"Attention consumer: sign here
only if the dealer has told you that
this vehicle has the following problem(s)
and you agree to buy the vehicle on
those terms:
1. ________________________________________________
2. ________________________________________________
3. ________________________________________________
J. A used motor vehicle dealer has
the burden to prove by a preponderance
of the evidence that the dealer complied
with Subsection I of this section.
K. A consumer or
seller that is aggrieved by a transaction
pursuant to this section and that
seeks a legal remedy shall pursue
an appropriate remedy prescribed in
Chapter 55, Article 2 NMSA 1978 and
shall comply with the requirements
prescribed in that article.
57-16A-4 Affirmative
defenses
It shall be an affirmative
defense to any claim under the Motor
Vehicle Quality Assurance Act [57-16A-1
to 57-16A-9 NMSA 1978] that:
A. an alleged nonconformity does not
substantially impair the use and market
value of the motor vehicle;
B. a nonconformity is the result of
abuse, neglect or unauthorized modifications
or alterations of the motor vehicle;
C. a claim by a consumer
was not filed in good faith; or
D. any other affirmative
defense allowed by law.
History: Laws 1985, ch. 220, ¤
4.
57-16A-5 Limitation of remedy
Any consumer who
seeks enforcement of the provisions
of the Motor Vehicle Quality Assurance
Act [57-16A-1 to 57-16A-9 NMSA 1978]
shall be foreclosed from pursuing
any Uniform Commercial Code remedy
set forth in Sections 55-2-602 through
55-2-608 NMSA 1978.
History: Laws 1985,
ch. 220, ¤ 5.
57-16A-6 Informal
dispute resolution
If a manufacturer
has established or participates in
a fair and impartial informal dispute
settlement procedure which substantially
complies with the substantive requirements
of Title 16, Part 703 of the Code
of Federal Regulations, the provisions
of Subsection B of Section 3 [57-16A-3B
NMSA 1978] of the Motor Vehicle Quality
Assurance Act concerning refunds or
replacement shall not apply to any
consumer who has not first resorted
to that procedure. The state attorney
general may investigate and determine
that the informal dispute settlement
procedure is fair and impartial and
conforms with the requirements of
Title 16, Part 703 of the Code of
Federal Regulations.
History: Laws 1985,
ch. 220, ¤ 6.
57-16A-7 Resale of
returned motor vehicle
No motor vehicle
which has not been properly repaired
pursuant to the provisions of Subsection
B of Section 3 [57-16A-3 NMSA 1978]
of the Motor Vehicle Quality Assurance
Act, or pursuant to a similar law
of another state, may be resold in
New Mexico unless the manufacturer
provides full written disclosure of
the reason for the return to any prospective
buyer.
History: Laws 1985,
ch. 220, ¤ 7.
57-16A-7.1 Notice
of replacement or repurchase to used
motor vehicle dealers and consumers.
(Effective January 1, 2004.).
A manufacturer, its
agent, its authorized dealer or a
used motor vehicle dealer that has
been ordered by judgment or decree
to replace or repurchase or that has
replaced or repurchased a motor vehicle
pursuant to the Motor Vehicle Quality
Assurance Act [57-16A-1 to 57-16A-9
NMSA 1978] shall, before offering
the motor vehicle for resale, attach
to the motor vehicle written notification
indicating that the motor vehicle
has been replaced or repurchased.
A consumer or a used motor vehicle
dealer may bring a cause of action
against a person who removes the notification
from the motor vehicle, unless the
manufacturer, its agent or its authorized
dealer or a used motor vehicle dealer,
before completion of the sale, has
provided the purchaser with written
notification by the manufacturer,
dealer or agent of the dealer, that
the motor vehicle has been replaced
or repurchased.
57-16A-8 Limitation
of action
Any action brought
to enforce the provisions of the Motor
Vehicle Quality Assurance Act [57-16A-1
to 57-16A-9 NMSA 1978] shall be commenced
within eighteen months following the
date of original delivery of the motor
vehicle to a consumer, or, in the
event that a consumer resorts to an
informal dispute settlement procedure
pursuant to Section 6 [57-16A-6 NMSA
1978] of the Motor Vehicle Quality
Assurance Act, within ninety days
following the final action of the
panel, whichever is later.
57-16A-9 Reasonable
attorney fees
A consumer who prevails
in an action brought to enforce the
provisions of the Motor Vehicle Quality
Assurance Act [57-16A-1 to 57-16A-9
NMSA 1978] shall be entitled to receive
reasonable attorneys' fees and court
costs from the manufacturer. If a
consumer does not prevail in such
an action and brings that action for
frivolous reasons or in bad faith,
the manufacturer shall be entitled
to receive reasonable attorneys' fees
and court costs from the consumer.
