A. In order to enforce any lien under Sections 48-3-1 through 48-3-20 NMSA 1978, the procedure shall be the same as in the case of the foreclosure of a chattel mortgage if suit is filed in court. The lien claimant when the property subject to the lien is under his control or in his possession may, after the debt for which the lien is claimed becomes due and payable, serve the person against whom the lien is sought to be enforced with a written notice or forward to the last known address of the person, by certified or registered mail, return receipt requested, a written statement, setting forth an itemized statement of the amount of the indebtedness. If the indebtedness is not paid within ten days after the service or mailing of the notice, the property may be advertised by posting or publication as provided in Section 48-3-14 NMSA 1978 and sold to satisfy the indebtedness.
B. Where the property involved is a motor vehicle upon which a lien exists under Sections 48-3-19 and 48-3-20 NMSA 1978, then in addition to the ten-day notice of the debt under this section and the twenty-day notice of sale under Section 48-3-14 NMSA 1978, the motor vehicle shall be held for the following periods:
(1) for fourteen days where the vehicle is registered in this state; or
(2) for forty days where the vehicle is registered in a foreign jurisdiction or where the registration cannot be found in the records of this state.
C. Where the property on which the lien exists is a motor vehicle, the time periods referred to in Subsection B of this section are to be used for the purpose of establishing ownership and the names and addresses of lienholders so that they may be given notice of the sale. The time periods shall be in lieu of the time period referred to in Section 66-3-203 NMSA 1978, but the provisions of giving notice to the state police of unclaimed vehicles shall still apply, and the lien claimant shall give such notice within five days after the expiration of the ten-day notice period referred to in Subsection A of this section.
History: Laws 1851-1852, p. 243; C.L. 1865, ch. 77(2d), § 6; Laws 1884, ch. 17, § 2; C.L. 1884, §§ 1539, 1543; C.L. 1897, §§ 2236, 2240; Code 1915, §§ 3336, 3340; Laws 1917, ch. 65, § 1 (3343); 1923, ch. 24, § 1 (3343); C.S. 1929, § 82-411; 1941 Comp., § 63-311; 1953 Comp., § 61-3-11; Laws 1955, ch. 67, § 1; 1967, ch. 183, § 1; 1989, ch. 34, § 1.
ANNOTATIONSCompiler's notes. — The subject matter which was originally in Code 1915, 3336 (derived from Laws of 1851-1852), and Code 1915, 3340 (derived from Laws of 1884, ch. 17), was combined as two paragraphs of one section bearing number 3343 in the 1917 Amendatory Law.
The original Code 1915, 3343 (derived from Laws 1884, ch. 17, § 5), gave landlords and common carriers the right to enforce their liens under the provisions of 48-3-13 to 48-3-15 NMSA 1978.
Cross references. — For foreclosure of mortgages, see 39-4-1 NMSA 1978 et seq.
The 1989 amendment, effective June 16, 1989, in Subsection A substituted "48-3-1 through 48-3-20 NMSA 1978" for "61-3-1 through 61-3-18 New Mexico Statutes Annotated, 1953 Compilation" in the first sentence and "48-3-14 NMSA 1978" for "61-3-12 New Mexico Statutes Annotated, 1953 Compilation" in the last sentence, and made minor stylistic changes throughout the subsection; in Subsection B substituted "48-3-19 and 48-3-20 NMSA" for "61-3-17 through 61-3-18 New Mexico Statutes Annotated, 1953 Compilation" and "48-3-14 NMSA 1978" for "61-3-12 New Mexico Statutes Annotated, 1953 Compilation" in the introductory paragraph, "fourteen" for "thirty" in Paragraph (1), and "forty" for "sixty" in Paragraph (2); and in Subsection C substituted "66-3-203 NMSA 1978" for "64-5-3 New Mexico Statutes Annotated, 1953 Compilation" in the second sentence.
With respect to motor vehicles, Section 48-3-13 NMSA 1978 requires that written notice be served only on the vehicle owner. — A debtor who is responsible for a mechanic's lien against a motor vehicle, but who is not the owner of the motor vehicle, need not be given notice before enforcement of a mechanic's lien. Harris v. Vasquez, 2012-NMCA-110, 288 P.3d 924.
Notice to a debtor who is not the owner of a motor vehicle is not required. — Where the owner of a vehicle gave possession and use of the vehicle to the debtor while the owner was incarcerated; the ownership of the vehicle did not change; defendants repaired the vehicle at the request of the debtor; the debtor made partial payments, but failed to pay the repair costs in full; defendants had retained possession of the vehicle after the repair work was completed; defendants sent written notice to the owner at the owner's home address, which coincided with the home address of the debtor; the notice set forth the amount due and stated that the vehicle would be sold at auction if the amount due was not paid within ten days; defendants did not send or address written notice to the debtor; and the debtor refused to accept the notice addressed to the owner, defendants were not required to send written notice to the debtor to enforce their mechanic's lien. Harris v. Vasquez, 2012-NMCA-110, 288 P.3d 924.
Demand for rent, claim of lien required. — Before 1923 amendment, a landlord could enforce his lien in either of the two ways then provided, but he could not forcibly take possession of the property without first demanding the rent due and claiming the lien. Ross v. Overton, 1924-NMSC-043, 29 N.M. 651, 226 P. 162.
Exemption waived by tenant. — A tenant having conceded to his landlord the right to a lien on chattels by moving them onto landlord's property waives exemption. Tomson v. Lerner, 1933-NMSC-078, 37 N.M. 546, 25 P.2d 209.
Repossession right waived by voluntary parting. — A lien claimant who voluntarily parts with possession of a chattel on which he has a lien waives only the right to possession, and may not repossess the same on strength of the lien alone in absence of special circumstances showing his right to possession. Mathieu v. Roberts, 1926-NMSC-025, 31 N.M. 469, 247 P. 1066.
Right to lien foreclosure notice not forfeited by failure to file address change known to claimant. — Failure to file a change of address with the division of motor vehicles in compliance with Section 66-3-23 NMSA 1978 did not forfeit the right to lien foreclosure notice under this section when lien claimant knew of the more recent address. Phoenix, Inc. v. Galio, 1984-NMCA-008, 100 N.M. 752, 676 P.2d 829.
Where mechanic's lien claimant knows of a more recent address of car owner, mailing notice of lien to the address shown by motor vehicle division records does not fulfill the requirement of sending notice to the "last-known address." Phoenix, Inc. v. Galio, 1984-NMCA-008, 100 N.M. 752, 676 P.2d 829.
Foreclosure on conditional vendor's property not conversion. — A lessor who forecloses his landlord's lien and sells property for nonpayment of rent is not guilty of wrongfully converting that property where it appears that the property was being purchased by the lessee and the plaintiff under a conditional sales contract from a vendor who had guaranteed the rent. Hesselden v. Karman, 1960-NMSC-114, 67 N.M. 434, 356 P.2d 451.
Wrongful sale justifies punitive damages. — Where a trailer is wrongfully withheld and sold contrary to law and a court's restraining order, these facts alone justify the imposition of punitive damages. Newman v. Basin Motor Co., 1982-NMCA-074, 98 N.M. 39, 644 P.2d 553).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 51 Am. Jur. 2d Liens §§ 63 to 76.
What constitutes public sale, 4 A.L.R.2d 575.