HOUSE BILL 360
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Al Park
AN ACT
RELATING TO UNFAIR TRADE PRACTICES; REQUIRING NOTICE AND OPPORTUNITY FOR MEDIATION BEFORE FILING A CLAIM FOR A PRIVATE REMEDY; REQUIRING COMPLETION OF MEDIATION BEFORE FILING A CLAIM; PROVIDING FOR EXCEPTIONS; AUTHORIZING THE COURT TO ORDER MEDIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 57-12-10 NMSA 1978 (being Laws 1967, Chapter 268, Section 8, as amended) is amended to read:
"57-12-10. PRIVATE REMEDIES.--
A. Except as provided in Subsection C of this section, before a person may file a claim seeking a private remedy pursuant to the provisions of this section, the person shall:
(1) give written notice in reasonable detail to the person against whom the remedy is claimed of the specific claim and amount of damages and expenses to be claimed; and
(2) give the notice to the person at least forty-five days before filing the claim.
B. A person that gives notice or receives notice pursuant to Subsection A of this section may request in writing during the forty-five-day notice period that the parties attempt to settle the claim in mediation. If a request for mediation is made, the parties shall choose a mutually acceptable mediator and enter into mediation; a claim shall not be filed before completion of the mediation process, except as provided in Subsection C of this section.
C. If the requirement for the forty-five-day notice or completion of mediation will result in the expiration of the statute of limitations, a person may file a claim without following the notice or mediation requirements of Subsections A and B of this section.
D. The court may order mediation at the request of any party to the suit and may stay all proceedings until the mediation is completed. If the parties do not agree on a mutually acceptable mediator, the court shall appoint the mediator. The parties shall share the cost of the mediator equally unless otherwise agreed to by the parties.
[A.] E. A person likely to be damaged by an unfair or deceptive trade practice or by an unconscionable trade practice of another may be granted an injunction against it under the principles of equity and on terms that the court considers reasonable. Proof of monetary damage, loss of profits or intent to deceive or take unfair advantage of any person is not required. Relief granted for the copying of an article shall be limited as to the prevention of confusion or misunderstanding as to source.
[B.] F. Any person who suffers any loss of money or property, real or personal, as a result of any employment by another person of a method, act or practice declared unlawful by the Unfair Practices Act may bring an action to recover actual damages or the sum of one hundred dollars ($100), whichever is greater. Where the trier of fact finds that the party charged with an unfair or deceptive trade practice or an [unconsionable] unconscionable trade practice has willfully engaged in the trade practice, the court may award up to three times actual damages or three hundred dollars ($300), whichever is greater, to the party complaining of the practice.
[C.] G. The court shall award [attorneys'] attorney fees and costs to the party complaining of an unfair or deceptive trade practice or unconscionable trade practice if [he] the party prevails. The court shall award [attorneys'] attorney fees and costs to the party charged with an unfair or deceptive trade practice or an unconscionable trade practice if it finds that the party complaining of such trade practice brought an action [which] that was groundless.
[D.] H. The relief provided in this section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this state.
[E.] I. In any class action filed under this section, the court may award damages to the named plaintiffs as provided in Subsection [B] F of this section and may award members of the class such actual damages as were suffered by each member of the class as a result of the unlawful method, act or practice."
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