HOUSE BILL 881
49th legislature - STATE OF NEW MEXICO - first session, 2009
William "Bill" R. Rehm
RELATING TO CREDIT REPORTING; REQUIRING A CONSUMER REPORTING AGENCY TO REMOVE INFORMATION CONTESTED BECAUSE OF IDENTITY THEFT OR FALSE REPORTING; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 56-3A-1 NMSA 1978 (being Laws 2007, Chapter 106, Section 1) is amended to read:
"56-3A-1. SHORT TITLE.--[This act] Chapter 56, Article 3A NMSA 1978 may be cited as the "Credit Report Security Act"."
Section 2. Section 56-3A-2 NMSA 1978 (being Laws 2007, Chapter 106, Section 2) is amended to read:
"56-3A-2. DEFINITIONS.--As used in the Credit Report Security Act:
A. "consumer" means an individual who is a resident of New Mexico;
B. "consumer reporting agency" means any person that, for monetary fees, dues or on a cooperative nonprofit basis, regularly engages in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing credit reports to third parties;
C. "credit report" means a written, oral or other communication of information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living that is used or expected to be used or collected for the purpose of serving as a factor in establishing the consumer's eligibility for credit, insurance, investment, benefit, employment or other purpose as authorized by the federal Fair Credit Reporting Act, 15 U.S.C. Section 1681a;
D. "declaration of removal" means a statement delivered by mail, facsimile or electronically to a consumer reporting agency that operates within New Mexico and that states:
(1) that the consumer is entitled to removal of information in the consumer reporting agency's files on grounds that the consumer is the victim of identity theft or false reporting; and
(2) the address at which the consumer is available for service of process by the consumer reporting agency and an identifying number such as a social security number by which the consumer can be identified in the credit bureau's files;
[D.] E. "person" means an individual, corporation, firm, association, organization, trust, estate, cooperative, business, partnership, limited liability company, joint venture, governmental agency or subdivision or any legal or commercial entity; [and
E.] F. "security freeze" means a notice placed in a consumer's credit report, at the request of the consumer and subject to certain exceptions, that prohibits a consumer reporting agency from releasing the consumer's credit report or score relating to the extension of credit or the opening of new accounts without the express authorization of the consumer; and
G. "operates within New Mexico" means accepting or maintaining a credit report on a person who resides within New Mexico."
Section 3. A new section of the Credit Report Security Act is enacted to read:
"[NEW MATERIAL] DECLARATION OF REMOVAL--PROCEDURES.--
A. A consumer may file a declaration of removal with a credit bureau operating within New Mexico declaring that the consumer:
(1) is the victim of identity theft or false reporting;
(2) is eligible for removal of data reported to or by the credit bureau on the basis of identity theft or false reporting;
(3) is available for service of process at a designated address; and
(4) discloses an identifying number, such as a social security number, by which the consumer may be identified in the credit bureau files.
B. A consumer reporting agency shall make available on a web site and on all credit reports of the consumer reporting agency the means for contacting the consumer reporting agency through telephone, facsimile and electronic media.
C. Within five days of receiving a declaration of removal and receipt of a fee as authorized in Subsection I of Section 56-3A-3 NMSA 1978, a consumer reporting agency shall remove from its files the data that are the subject of the declaration of removal. A facsimile or electronic mail confirmation is prima facie evidence that the consumer reporting agency received the declaration of removal.
D. If a consumer reporting agency fails to remove data that are the subject of a declaration of removal or restores data that are the subject of a declaration of removal in violation of the provisions of the Credit Report Security Act, the affected consumer may bring a civil action against the consumer reporting agency for:
(1) injunctive relief to remove the information or to prevent further violation of the declaration of removal;
(2) actual damages sustained by the affected consumer as a result of the violation;
(3) a civil penalty in an amount not to exceed two thousand dollars ($2,000) for each violation of the declaration of removal; and
(4) costs of the action and reasonable attorney fees.
E. Upon request of a consumer, or upon a court's order, after adjudication of the alleged debt in the judicial district of the consumer, a consumer reporting agency may restore the information that was the subject of a declaration of removal."
Section 4. Section 56-3A-3 NMSA 1978 (being Laws 2007, Chapter 106, Section 3) is amended to read:
"56-3A-3. SECURITY FREEZE.--
A. A consumer may elect to place a security freeze on the consumer's credit report by making a request to a consumer reporting agency by means of certified or regular mail sent to an address designated by the consumer reporting agency, or by means of a telephone or a secure electronic method if such means are provided by the agency. A consumer shall provide any personal identification required by the consumer reporting agency and pay a fee, if applicable.
B. A consumer reporting agency shall place a security freeze on a consumer's credit report no later than three business days after receiving a request from the consumer.
C. Within five business days of placing a security freeze on a consumer's credit report, a consumer reporting agency shall:
(1) send a written confirmation of the security freeze to the consumer; and
(2) provide the consumer with a unique personal identification number, password or similar device to be used by the consumer when providing authorization for the release of the consumer's credit report to a specific person or for a specific period of time or for permanent removal of the freeze.
D. While a security freeze is in effect, a consumer may authorize a consumer reporting agency to release the consumer's credit report to a specific person or to release the credit report for a specific period of time by contacting the consumer reporting agency by regular or certified mail or by telephone, and as of September 1, 2008, by contacting the consumer reporting agency by mail, by telephone or by a secure electronic method, and providing:
(1) proper identification;
(2) the unique personal identification number, password or similar device;
(3) information regarding the party that is to have access to the credit report or the time period during which the credit report can be released; and
(4) payment of a fee, if applicable.
E. A consumer reporting agency that receives a request pursuant to Subsection D of this section shall release a consumer's credit report as requested by the consumer within three business days after the business day on which the consumer's request by regular or certified mail or by telephone is received by the consumer reporting agency. As of September 1, 2008, a consumer reporting agency that receives a request pursuant to Subsection D of this section shall release a consumer's credit report as requested by the consumer within fifteen minutes after the consumer's request is received by the consumer reporting agency through the use of a telephone or a secure electronic method provided by the agency, which may include the use of the internet, facsimile or other electronic means; provided that the consumer reporting agency is not required to release the credit report within fifteen minutes unless the consumer's request is received by the consumer reporting agency between the hours of 6:00 a.m. and 9:30 p.m. mountain standard or mountain daylight time, as applicable, Sunday through Saturday.
F. A consumer reporting agency need not release a credit report within the time periods set forth in Subsection E of this section if:
(1) the consumer fails to meet the requirements of Subsection D of this section; or
(2) the consumer reporting agency's ability to remove the security freeze within fifteen minutes is prevented by:
(a) an act of God, including fire, earthquake, hurricane, storm or similar natural disaster or phenomenon;
(b) unauthorized or illegal acts by a third party, including terrorism, sabotage, riots, vandalism, labor strikes or disputes disrupting operations or similar occurrences;
(c) operational interruption, including electrical failure, unanticipated delay in equipment or replacement part delivery, computer hardware or software failure inhibiting response time or similar disruption;
(d) governmental action, including emergency orders or regulations, judicial or law enforcement actions or similar directives;
(e) regularly scheduled maintenance of, or updates to, the consumer reporting agency's systems during other than normal business hours; or
(f) commercially reasonable maintenance of, or repair to, the consumer reporting agency's systems that is unexpected or unscheduled.
G. If a consumer reporting agency erroneously releases information on a credit report while a security freeze is in effect and without a consumer's authorization, it shall notify the consumer of the release of information within five business days of the agency's discovery of the erroneous release of information and inform the consumer of the specific information released and the third party to whom it has been released.
H. A security freeze shall remain in place until a consumer requests its removal. A consumer reporting agency shall remove the security freeze within three business days after receiving a request from a consumer who provides the unique personal identification number, password or similar device and proper identification.
I. A consumer reporting agency may charge a consumer a fee of no more than ten dollars ($10.00) for the placement of a security freeze or declaration of removal. A consumer reporting agency may charge a fee of no more than five dollars ($5.00) for the release of a credit report, upon which a security freeze or declaration of removal has been placed, to a specific person or for a specific period of time. A consumer reporting agency may charge a fee of no more than five dollars ($5.00) for the removal of a security freeze or to change a declaration of removal. A fee shall not be charged to a consumer who is sixty-five years of age or older or to a victim of identity theft who provides a valid police or investigative report filed with a law enforcement agency alleging the crime of identity theft. A consumer reporting agency shall accept payment by debit or credit card online and by phone and shall accept automatic clearing house online payment.
J. If a consumer's credit report was frozen due to a material misrepresentation of fact by the consumer and a consumer reporting agency intends to remove the freeze, the consumer reporting agency shall notify the consumer in writing five business days prior to removing the security freeze on the consumer's credit report.
K. A consumer reporting agency may advise a third party that a security freeze is in effect with respect to a consumer's credit report. A consumer reporting agency shall not suggest or otherwise state or imply to a third party that the security freeze reflects a negative credit score, history, report or rating.
L. The provisions of this section do not prevent a consumer reporting agency from releasing a consumer's credit report:
(1) to a person or the person's subsidiary, affiliate, agent or assignee with which the consumer has or, prior to assignment, had an account, contract or
debtor-creditor relationship for the purpose of reviewing the account or collecting the financial obligation owing for the account, contract or debt, or to a prospective assignee of a financial obligation owing by the consumer in conjunction with the proposed purchase of the financial obligation. As used in this paragraph, "reviewing the account" includes activities related to account maintenance, monitoring, credit line increases and account upgrades and enhancements;
(2) to a subsidiary, affiliate, agent, assignee or prospective assignee of a person to whom access has been granted by the consumer pursuant to Subsection D of this section for the purpose of facilitating the extension of credit or other permissible use;
(3) to a person or entity administering a credit file monitoring subscription service to which the consumer has subscribed;
(4) to a person or entity for the purpose of providing a consumer with a copy of the consumer's credit report upon the consumer's request;
(5) to a person acting pursuant to a court order, warrant or subpoena;
(6) to the child support enforcement division of the human services department for the purpose of carrying out its statutory duties of establishing and collecting child support obligations;
(7) to a governmental agency acting to investigate fraud, to investigate or collect delinquent taxes or unpaid court orders or to fulfill any of its other statutory duties;
(8) to a person for the purposes of prescreening as defined by the federal Fair Credit Reporting Act;
(9) from a consumer reporting agency's database or file that consists only of and is used solely for one or more of the following:
(a) criminal record information;
(b) tenant screening;
(c) employment screening; or
(d) fraud prevention or detection; or
(10) to a person or entity for use in setting or adjusting an insurance rate, adjusting an insurance claim or underwriting for insurance purposes.
M. The following entities are not required to place a security freeze on a credit report:
(1) a consumer reporting agency that acts only as a reseller of credit information by assembling and merging information contained in the database of another consumer reporting agency or multiple consumer credit reporting agencies and does not maintain a permanent database of credit information from which new consumer credit reports are produced. However, a consumer reporting agency acting as a reseller shall honor any security freeze placed on a consumer credit report by another consumer reporting agency;
(2) a check services or fraud prevention services company that issues reports on incidents of fraud or authorizations for the purpose of approving or processing negotiable instruments, electronic funds transfers or similar methods of payment; or
(3) a deposit account information service company that issues reports regarding account closures due to fraud, substantial overdrafts, automatic teller machine abuse or similar negative information regarding a consumer to inquiring banks or other financial institutions for use only in reviewing a consumer request for a deposit account at the inquiring bank or financial institution."
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