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New
Mexico Lemon Law Statutes
NM Statutes Chapter 57, Article 16A
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 (1995 Repl.)
As used in the Motor Vehicle Quality Assurance Act [57-16A-1
to 57-16A-9 NMSA 1978]:
- "collateral charges" means those 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;
- "comparable motor vehicle" means an identical or
reasonably equivalent motor vehicle;
- "consumer" means the purchaser, other than for purposes
of resale, of a new motor vehicle normally used for personal,
family or household purposes, any 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;
- "express warranty" means any written affirmation
of the fact of promise made by a manufacturer to a consumer in
connection with the sale of new motor vehicles which 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;
- "manufacturer" means any person engaged in the manufacturing,
assembling, importing or distributing of a motor vehicle as a
regular business; and
- "motor vehicle" means a passenger motor vehicle
including an automobile, pickup truck, motorcycle or van normally
used for personal, family or household purposes which is sold
and registered in this state and whose gross vehicle weight is
less than ten thousand pounds.
History: Laws 1985, ch. 220, ¤ 2.
57-16A-3 Conformation to express warranties (1995 Repl.)
- 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.
- 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.
- 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:
- 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
- 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-4 Affirmative defenses (1995 Repl.)
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:
- an alleged nonconformity does not substantially impair the
use and market value of the motor vehicle;
- a nonconformity is the result of abuse, neglect or unauthorized
modifications or alterations of the motor vehicle;
- a claim by a consumer was not filed in good faith; or
- any other affirmative defense allowed by law.
History: Laws 1985, ch. 220, ¤ 4.
57-16A-5 Limitation of remedy (1995 Repl.)
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 (1995 Repl.)
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 (1995 Repl.)
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-8 Limitation of action (1995 Repl.)
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 (1995 Repl.)
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.
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The
Magnuson-Moss Warranty Act
The Magnuson-Moss Warranty Act is a Federal Law that protects the buyer of any product which costs more than $25 and comes with an express written warranty.
This law applies to any product that you buy that does not perform as it should.
Your car is a major investment, rationalized by the peace of mind that flows from its expected dependability and safety. Accordingly, you are entitled
to expect an automobile properly constructed and regulated to provide reasonably safe, trouble-free, and dependable transportation – regardless
of the exact make and model you bought. Unfortunately, sometimes these principles do not hold true and defects arise in automobiles. Although one defect
is not actionable, repeated defects are as there exists a generally accepted rule that unsuccessful repair efforts render the warrantor liable. Simply
put, there comes a time when “enough is enough” – when after having to take your car into the shop for repairs an inordinate number
of times and experiencing all of the attendant inconvenience, you are entitled to say, ‘That’s all,’ and revoke, notwithstanding the
seller’s repeated good faith efforts to fix the car. The rationale behind these basic principles is clear: once your faith in the vehicle is shaken,
the vehicle loses its real value to you and becomes an instrument whose integrity is impaired and whose operation is fraught with apprehension. The question
thus becomes when is “enough”?
As you know, enough is never enough from your warrantor’s point of view and you should simply continue to have your defective vehicle repaired – time
and time again. However, you are not required to allow a warrantor to tinker with your vehicle indefinitely in the hope that it may eventually be fixed.
Rather, you are entitled to expect your vehicle to be repaired within a reasonable opportunity. To this end, both the federal Moss Warranty Act, and
the various state “lemon laws,” require repairs to your vehicle be performed within a reasonable opportunity.
Under the Magnuson-Moss Warranty
Act, a warrantor should perform adequate repairs in at least two, and possibly three, attempts to correct a particular defect. Further, the Magnuson-Moss
Warranty Act’s reasonableness requirement applies to your vehicle as a whole rather than to each individual defect
that arises. Although most of the Lemon Laws vary from state to state, each individual law usually require a warrantor to cure a specific defect within
four to five attempts or the automobile as a whole within thirty days. If the warrantor fails to meet this obligation, most of the lemon laws provide
for a full refund or new replacement vehicle. Further, this reasonable number of attempts/reasonable opportunity standard, whether it be that of the
Magnuson-Moss Warranty Act or that of the Lemon Laws, is akin to strict liability – once this threshold has been met, the continued existence of
a defect is irrelevant and you are still entitled to relief.
One of the most important parts of the Magnuson-Moss Warranty Act is its fee shifting
provision. This provision provides that you may recover the attorney fees incurred in the prosecution of your case if you are successful – independent
of how much you actually win. That rational behind this fee shifting provision is to twofold: (1) to ensure you will be able to vindicate your rights
without having to expend large sums on attorney's fees and (2) because automobile manufacturers are able to write off all expenses of defense as a
legitimate business expense, whereas you, the average consumer, obviously does not have that kind of economic staying power. Most of the Lemon Laws contain
similar fee shifting provisions.
You may also derive additional warranty rights from the Uniform Commercial Code; however, the Code does not allow you
in most states to recover your attorney fees and is also not as consumer friendly as the Magnuson-Moss Warranty Act or the various state lemon laws.
The narrative information on Magnuson-Moss, UCC and lemon laws on these pages is provided by Marshall Meyers, attorney.
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Uniform
Commercial Code Summary
The Uniform Commercial Code or UCC has been enacted in all 50 states and some of the territories of the United States. It is the primary source of law
in all contracts dealing with the sale of products. The TARR refers to Tender, Acceptance, Rejection, Revocation and applies to different aspects of
the consumer's "relationship" with the purchased goods.
TENDER -
The tender provisions of the Uniform Commercial Code contained in Section2-601 provide that the buyer is entitled to reject any goods that fail in
any respect to conform to the contract. Unfortunately, new cars are often technically complex and their innermost workings are beyond the understanding
of the average new car buyer. The buyer, therefore, does not know whether the goods are then conforming.
ACCEPTANCE -
The new car buyer accepts the goods believing and expecting that the manufacturer will repair any problem he has with the goods under the warranty.
REJECTION
-
The new car buyer may discover a problem with the vehicle within the first few miles of his purchase. This would allow the new car buyer to reject
the goods. If the new car buyer discovers a defect in the car within a reasonable time to inspect the vehicle, he may reject the vehicle. This period
is not defined. On the one hand, the buyer must be given a reasonable time to inspect and that reasonable time to inspect will be held as an acceptance
of the vehicle. The Courts will decide this reasonable time to inspect based on the knowledge and experience of the buyer, the difficulty in discovering
the defect, and the opportunity to discover the defect.
The following is an example of a case of rejection: Mr. Zabriskie purchase a new 1966 Chevrolet Biscayne. After picking up the car on Friday evening,
while en route to his home 2.5 miles away, and within 7/10ths of a mile from the dealership, the car stalled and stalled again within 15 feet. Thereafter,
the car would only drive in low gear. The buyer rejected the vehicle and stopped payment on his check. The dealer contended that the buyer could not
reject the car because he had driven it around the block and that was his reasonable opportunity to inspect. The New Jersey Court said;
To the layman,
the complicated mechanisms of today's automobile are a complete mystery. To have the automobile inspected by someone with sufficient expertise to disassemble
the vehicle in order the discover latent defects before the contract is signed, is assuredly impossible and highly impractical. Consequently, the first
few miles of driving become even more significant to the excited new car buyer. This is the buyer's first reasonable opportunity to enjoy his new vehicle
to see if it conforms to what it was represented to be and whether he is getting what he bargained for. How long the buyer may drive the new car under
the guise of inspection of new goods is not an issue in the present case because 7/10th of a mile is clearly within the ambit of a reasonable opportunity
to inspect. Zabriskie Chevrolet, Inc. v. Smith, 240 A. 2d 195(1968)
It is suggested that Courts will tend to excuse use by consumers if possible.
REVOCATION -
What happens when the consumer has used the new car for a lengthy period of time? This is the typical lemon car case. The UCC provides that a buyer
may revoke his acceptance of goods whose non-conformity substantially impairs the value of the goods to him when he has accepted the goods without
discovery of a non-conformity because it was difficult to discover or if he was assured that non-conformities would be repaired. Of course, the average
new car buyer does not learn of the nonconformity until hundreds of thousands of miles later. And because quality is job one, and manufacturers are
competing on the basis of their warranties, the consumer always is assured that any noncomformities he does discover will be remedied.
What is a noncomformity substantially impairing the value of the vehicle?
- A noncomformity may include a number of relatively minor defects whose cumulative total adds up to a substantial impairment. This is the "Shake
Faith" Doctrine first stated in the Zabrisikie case. "For a majority of people the purchase of a new car is a major investment, rationalized
by the peace of mind that flows from its dependability and safety. Once their faith is shaken, the vehicle loses not only its real value in their eyes,
but becomes an instrument whose integrity is substantially impaired and whose operation is fraught with apprehension".
- A substantial noncomformity may include a failure or refusal to repair the goods under the warranty. In Durfee V. Rod Baxter Imports, the Minnesota
Court held that the Saab owner that was plagued by a series of of annoying minor defects and stalling, which were never repaired after a number of attempts,
could revoke, "if repairs are not successfully undertaken within a reasonable time", the consumer may elect to revoke.
- Substantial Non Conformity and Lemon Laws often define what may be considered a substantial impairment. These definitions have been successfully used
to flesh out the substantial impairment in the UCC.
Additional narrative information on Magnusson-Moss, UCC and lemon laws on these pages is provided by T. Michael Flinn, attorney.
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