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AN ACT

RELATING TO TRADE PRACTICES; REGULATING THE SALE AND

REDEMPTION OF GIFT CERTIFICATES; ESTABLISHING PENALTIES;

AMENDING A SECTION OF THE UNCLAIMED PROPERTY ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. GIFT CERTIFICATES--EXPIRATION--FEES--

PENALTIES.--

A. As used in this section, "gift certificate"

means a writing identified as a gift certificate that is not

redeemable in cash and is usable in its face amount in lieu of

cash in exchange for goods or services supplied by a seller,

but does not include a gift certificate useable with multiple

unaffiliated sellers or goods or services. "Gift certificate"

includes an electronic card with a banked dollar value, a

merchandise credit, a certificate where the issuer has

received payment for the full face value for the future

purchase or delivery of goods or services and any other medium

that evidences the giving of consideration in exchange for the

right to redeem the certificate, electronic card or other

medium for goods or services of at least an equal value.

"Gift certificate" does not include:

(1) gift certificates, store gift cards or

general use prepaid cards distributed to a consumer for

promotional, award, incentive, rebate or other similar

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purposes without any money or other tangible thing of value

being given by the consumer in exchange for the gift

certificate, store gift card or general use prepaid card;

(2) gift certificates, store gift cards or

general use prepaid cards that are sold below face value or at

a volume discount to employers or to nonprofit and charitable

organizations for fund-raising purposes;

(3) written promises, plastic cards or other

electronic devices that are:

(a) used solely for telephone services;

or

(b) are associated with a deposit,

checking, savings or similar account at a banking or other

similarly regulated financial institution and that provide

payments solely by debiting such account; and

(4) gift certificates issued by banks,

savings and loan associations and their affiliates and

subsidiaries, licensed money transmitters or credit unions

operating pursuant to the laws of the United States or New

Mexico.

B. A gift certificate shall not have an expiration

date less than sixty months after the date upon which the gift

certificate was issued. If an expiration date is not

conspicuously stated on a gift certificate, that gift

certificate shall be presumed to have no expiration date and

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shall be valid until redeemed or replaced.

C. An issuer of a gift certificate shall not

charge a fee of any kind in relation to the sale, redemption

or replacement of a gift certificate other than an initial

charge not exceeding the face value of the gift certificate,

nor may a gift certificate be reduced in value by any fee,

including a service or dormancy fee.

D. A violation of this section shall constitute an

unfair or deceptive trade practice and shall be subject to the

penalties set forth in the Unfair Practices Act.

Section 2. Section 7-8A-2 NMSA 1978 (being Laws 1997,

Chapter 25, Section 2) is amended to read:

"7-8A-2. PRESUMPTIONS OF ABANDONMENT.--

A. Property is presumed abandoned if it is

unclaimed by the apparent owner during the time set forth

below for the particular property:

(1) traveler's check, fifteen years after

issuance;

(2) money order, seven years after issuance;

(3) stock or other equity interest in a

business association or financial organization, including a

security entitlement under Article 8 of the Uniform Commercial

Code, five years after the earlier of:

(a) the date of the most recent

dividend, stock split or other distribution unclaimed by the

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apparent owner; or

(b) the date of the second mailing of a

statement of account or other notification or communication

that was returned as undeliverable or after the holder

discontinued mailings, notifications or communications to the

apparent owner;

(4) debt of a business association or

financial organization, other than a bearer bond or an

original issue discount bond, five years after the date of the

most recent interest payment unclaimed by the apparent owner;

(5) a demand, savings or time deposit,

including a deposit that is automatically renewable, five

years after the earlier of maturity or the date of the last

indication by the owner of interest in the property; but a

deposit that is automatically renewable is deemed matured for

purposes of this section upon its initial date of maturity,

unless the owner has consented to a renewal at or about the

time of the renewal and the consent is in writing or is

evidenced by a memorandum or other record on file with the

holder;

(6) money or credits owed to a customer as a

result of a retail business transaction, three years after the

obligation accrued;

(7) gift certificate, five years after

December 31 of the year in which the certificate was sold, but

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if redeemable in merchandise only, the amount abandoned is

deemed to be sixty percent of the certificate's face value;

(8) amount owed by an insurer on a life or

endowment insurance policy or an annuity that has matured or

terminated, three years after the obligation to pay arose or,

in the case of a policy or annuity payable upon proof of

death, three years after the insured has attained, or would

have attained if living, the limiting age under the mortality

table on which the reserve is based;

(9) property distributable by a business

association or financial organization in a course of

dissolution, one year after the property becomes

distributable;

(10) property received by a court as

proceeds of a class action and not distributed pursuant to the

judgment, one year after the distribution date;

(11) property held by a court, government,

governmental subdivision, agency or instrumentality, one year

after the property becomes distributable;

(12) wages or other compensation for

personal services, one year after the compensation becomes

payable;

(13) deposit or refund owed to a subscriber

by a utility, one year after the deposit or refund becomes

payable;

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(14) property in an individual retirement

account, defined benefit plan or other account or plan that is

qualified for tax deferral under the income tax laws of the

United States, three years after the earliest of the date of

the distribution or attempted distribution of the property,

the date of the required distribution as stated in the plan or

trust agreement governing the plan or the date, if

determinable by the holder, specified in the income tax laws

of the United States by which distribution of the property

must begin in order to avoid a tax penalty; and

(15) all other property, five years after

the owner's right to demand the property or after the

obligation to pay or distribute the property arises, whichever

first occurs.

B. At the time that an interest is presumed

abandoned under Subsection A of this section, any other

property right accrued or accruing to the owner as a result of

the interest, and not previously presumed abandoned, is also

presumed abandoned.

C. Property is unclaimed if, for the applicable

period set forth in Subsection A of this section, the apparent

owner has not communicated in writing or by other means

reflected in a contemporaneous record prepared by or on behalf

of the holder, with the holder concerning the property or the

account in which the property is held and has not otherwise

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indicated an interest in the property. A communication with

an owner by a person other than the holder or its

representative who has not in writing identified the property

to the owner is not an indication of interest in the property

by the owner.

D. An indication of an owner's interest in

property includes:

(1) the presentment of a check or other

instrument of payment of a dividend or other distribution made

with respect to an account or underlying stock or other

interest in a business association or financial organization

or, in the case of a distribution made by electronic or

similar means, evidence that the distribution has been

received;

(2) owner-directed activity in the account

in which the property is held, including a direction by the

owner to increase, decrease or change the amount or type of

property held in the account;

(3) the making of a deposit to or withdrawal

from a bank account; and

(4) the payment of a premium with respect to

a property interest in an insurance policy; but the

application of an automatic premium loan provision or other

nonforfeiture provision contained in an insurance policy does

not prevent a policy from maturing or terminating if the

insured has died or the insured or the beneficiary of the

policy has otherwise become entitled to the proceeds before

the depletion of the cash surrender value of a policy by the

application of those provisions.

E. Property is payable or distributable for

purposes of the Uniform Unclaimed Property Act (1995)

notwithstanding the owner's failure to make demand or present

an instrument or document otherwise required to obtain

payment."

Section 3. SEVERABILITY.--If any part or application of

this act is held invalid, the remainder or its application to

other situations or persons shall not be affected.

Section 4. APPLICABILITY.--The provisions of this act

apply to gift certificates sold or offered for sale on or

after July 1, 2007.

Section 5. EFFECTIVE DATE.--The effective date of the

provisions of this act is July 1, 2007.

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